Emory v. United Air Lines, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2012 Decided June 21, 2013

No. 11-7142

GEORGE EMORY, ET AL.,

APPELLANTS

v.

UNITED AIR LINES, INC., A CORPORATION AND WHOLLY

OWNED SUBSIDIARY OF UAL CORPORATION AND AIR LINE

PILOTS ASSOCIATION,

APPELLEES

UNITED STATES OF AMERICA,

INTERVENOR

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-02227)

No. 12-5026

GRANT O. ADAMS, ET AL.,

APPELLANTS

TROY G. AVERA, ET AL.,

APPELLEES

v.

2

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01646)

John S. Lopatto III argued the cause and filed the briefs

for appellants in Case No. 11-7142.

Granville C. Warner argued the cause for appellee Air

Line Pilots Association International in Case No. 11-7142.

Gary S. Kaplan argued the cause for appellee United Air

Lines, Inc. in Case No. 11-7142. With them on the brief were

Marta Wagner and Eric Jansen. Jonathan A. Cohen entered

an appearance.

Jonathan Turley argued the cause and filed the briefs for

appellants in Case No. 12-5026.

Edward Himmelfarb, Attorney, U.S. Department of

Justice, argued the cause for appellees in Case No. 12-5026.

With him on the brief were Stuart F. Delery, Acting Assistant

Attorney General, Ronald C. Machen Jr., U.S. Attorney, and

Michael Jay Singer, Attorney.

Before: ROGERS and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

3

BROWN, Circuit Judge: With the enactment of the Fair

Treatment for Experienced Pilots Act of 2007 (“FTEPA” or

“Act”), Pub. L. No. 110-135, 121 Stat. 1450, Congress

repealed the Federal Aviation Administration’s (“FAA”)

long-contested “Age 60 Rule” and extended the maximum

age for piloting commercial flights by five years to 65.

FTEPA marked a significant victory for opponents of the old

regime, but not everyone was satisfied. Under the Act’s

nonretroactivity provision, 49 U.S.C. § 44729(e)(1), pilots

who had turned 60 prior to FTEPA’s enactment date and did

not qualify for either one of two narrowly drawn statutory

exceptions would be denied the benefits of the Age 65 Rule

and, as was often the case, terminated.

Denied these extra years of employment as commercial

pilots, the aggrieved over-60 pilots sued. Plaintiffs in Adams

v. United States, 796 F. Supp. 2d 67 (D.D.C. 2011),

challenged the constitutionally of the nonretroactivity and

protection-for-compliance provisions as well as FAA’s

implementation of them.1 By contrast, plaintiffs in Emory v.

United Air Lines, Inc., 821 F. Supp. 2d 200 (D.D.C. 2011),

supplemented their constitutional objections with a number of

state and federal claims against their employer, United Air

Lines (“United”), and their union, Air Line Pilots Association

(“ALPA”), for advancing allegedly discriminatory

interpretations of the nonretroactivity provision they knew —

or should have known — to be incorrect. The District Courts

1

A previous panel of this Court dismissed Adams’s original

suit, a petition for review of an FAA order denying pilots

exemptions from the Age 60 Rule, as moot under the then-recently

enacted FTEPA. See Adams v. FAA, 550 F.3d 1174, 1176 (D.C.

Cir. 2008) (“The Act, which expressly abrogates the Age 60 Rule,

moots the petitions for review of the orders denying exemption

from the Age 60 Rule.”).

4

in both cases found in favor of the defendants, see Adams,

796 F. Supp. 2d at 80; Emory, 821 F. Supp. 2d at 243, and the

present appeals followed.2

Believing as we do that FTEPA passes constitutional

muster and should be interpreted as the Emory defendants

have done, we affirm the District Courts’ judgments as to all

claims not dismissed as moot.

I. BACKGROUND

First implemented in 1959, FAA’s so-called Age 60 Rule

barred any person 60 years of age or older from serving as a

pilot in flights conducted under Part 121 of the Federal

Aviation Regulations. See 14 C.F.R. § 121.383(c) (2007).3

Although the Rule survived nearly a half-century’s worth of

challenges in federal courts, see, e.g., Prof’l Pilots Fed’n v.

FAA, 118 F.3d 758 (D.C. Cir. 1997), institutional support for

the age 60 ceiling dwindled. In 2006, the International Civil

Aviation Organization (“ICAO”) revised the maximum age

2

“Although this court did not formally consolidate the

separate appeals[,] . . . they were argued on the same day before the

same panel, and we find it convenient to dispose of both appeals

with a single opinion.” Hunt v. United States, 636 F.2d 580, 583 n.5

(D.C. Cir. 1980).

3

“Part 121 governs the operations of most commercial

airlines.” See Jones v. ALPA, 642 F.3d 1100, 1102 (D.C. Cir.

2011); see also 14 C.F.R. § 121.1. The Age 60 Rule did not extend

to certain non-commercial flights, including “Part 91” flights, often

called “non-revenue or company flights,” Emory Appellants’ Br. 7,

and applied only to captains and first officers, not certain other

crew members such as flight engineers. See TWA v. Thurston, 469

U.S. 111, 115 n.3 (1985).

5

from 60 to 65 for certain pilots in international operations.

FAA responded by establishing the Age 60 Aviation

Rulemaking Committee (“ARC”) to make recommendations

regarding the adoption of the ICAO standard, but the

“polarized” Commission, with its 17 members “representing

pilot unions, airlines, the aeromedical community, and the

FAA,” AGE 60 AVIATION RULEMAKING COMMITTEE, REPORT

TO THE FEDERAL AVIATION ADMINISTRATION 1, 31 (Nov. 29,

2006), agreed on just one thing: “Any change to the Age 60

Rule should be prospective.” Id. at 31.

Undeterred by the false start, FAA soldiered on. In

January 2007, the agency announced it would amend the Age

60 Rule. Congress, however, preempted this rulemaking with

the passage of FTEPA in December 2007. Among other

changes, FTEPA abrogated the Age 60 Rule as of the Act’s

December 13, 2007, enactment date and replaced it with a

new ceiling colloquially referred to as the “Age 65 Rule.” 49

U.S.C. § 44729(d). Crucially, Congress gave the Age 65 Rule

entirely prospective effect with just two exceptions. As

codified in the Act’s “Nonretroactivity” provision, id.

§ 44729(e)(1), an over-60 pilot that served as a “required

flight deck crew member” (“RFDCM”) on December 13,

2007, id. § 44729(e)(1)(A), or was subsequently hired as a

new pilot without seniority, id. § 44729(e)(1)(B), could return

to piloting Part 121 flights until age 65.

A safe harbor provision entitled “Protection for

compliance” prevents any “action taken in conformance with

this section . . . or taken prior to the date of enactment of this

section in conformance with [the Age 60 Rule]” from

“serv[ing] as a basis for liability or relief in a proceeding,

brought under any employment law or regulation, before any

court or agency of the United States or of any State or

locality.” Id. § 44729(e)(2).

6

II. ADAMS V. UNITED STATES

A. OVERVIEW

The approximately 200 Adams plaintiffs can be split into

two classes: (1) pilots who turned 60 and were retired under

the Age 60 Rule some months or years before the December

13, 2007, enactment date,4 and (2) pilots who turned 60

between December 1 and 12, 2007, but remained in the air

carrier’s employ until December 31.5 Together they bring a

veritable litany of constitutional and Administrative

Procedure Act (“APA”) claims against FTEPA’s

nonretroactivity and protection-for-compliance provisions as

well as FAA’s purportedly arbitrary and unlawful

implementation of the two. See Adams Compl. ¶¶ 310–98.

Although initially justiciable, the passage of time has called

into question our ability to provide effective relief in this suit

against the government. We turn to that threshold issue now.

B. MOOTNESS

An old axiom reminds us that time and tide wait for no

4

Curiously, the complaint also names pilots who were over 65

on December 13, 2007, Adams Compl. ¶ 17, as well as those who

had not yet turned 60, Adams Compl. ¶¶ 52, 62. Whatever the

explanation, we think it clear that these pilots are without standing

to challenge a nonretroactivity provision that caused them no

injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992).

5

This latter class includes George V. Emory and Lorenzo M.

Sein, plaintiffs in the companion case. Adams Compl. ¶¶ 70, 188;

Emory Compl. ¶¶ 12(d); 12(f).

7

man. Or pilot, we add.

The window on the nonretroactivity provision closed

December 13, 2012, the five-year anniversary of the Act’s

enactment. On that date, every pilot for whom the prohibition

against retroactivity (and the exemptions thereto) would have

applied — pilots aged 60 to 64 the day FTEPA took effect —

would have turned 65.6 We can now say with mathematical

certainty that all members of this temporally circumscribed

class are disqualified under the Age 65 Rule from ever

piloting Part 121 flights.7 Restated, as of December 13, 2012,

no pilot will ever be kept from — or allowed to return to —

piloting Part 121 flights by operation of § 44729(e)(1).

The government’s supplementary filing, submitted

shortly after the five-year anniversary, urged us to dismiss the

Adams appeal as moot. See Adams v. United States, No. 12-

5026, Doc. No. 1410861 (D.C. Cir. Dec. 18, 2012)

(“Mootness Memo”). The government attacks Adams’s

complaint for failing to allege any cognizable relief,

explaining the case is moot “because the plaintiffs seek only

equitable relief. Despite their scattered references to damages

in their brief, damages are, of course, unavailable under the

6

Those who had not yet turned 60 as of December 13, 2007,

would have aged seamlessly into FTEPA’s Age 65 regime; those

65 and older would have already aged out. So viewed, this targeted

provision might be best understood as a stopgap measure designed

to aid in the transition from the Age 60 to the Age 65 Rule.

7

Plaintiffs have not challenged the constitutionality of

Congress’s decision to use 65 as the maximum flying age. See

Adams Reply Br. 16 (“[T]he statutory provision being challenged is

the seniority-stripping provision of the FTEPA, not the adjustment

of the maximum flying age to 65.”).

8

APA, and there is no waiver of sovereign immunity to support

an award of damages upon a declaration that a statute is

unconstitutional.” Id. at 3–4. Plaintiffs respond with nearly a

dozen rapid-fire arguments in the hope that one sticks, see

Adams v. United States, No. 12-5026, Doc. No. 1413923

(D.C. Cir. Jan. 7, 2013), and the government’s reply

effectively doubles down on earlier arguments, see Adams v.

United States, No. 12-5026, Doc. No. 1415502 (D.C. Cir. Jan.

16, 2013). We think the government only partially correct.

* * *

“A case becomes moot only when it is impossible for a

court to grant any effectual relief whatever to the prevailing

party.” Knox v. Serv. Employees Int’l Union, Local 1000, 132

S. Ct. 2277, 2287 (2012) (internal quotation marks omitted).

“As long as the parties have a concrete interest, however

small, in the outcome of the litigation, the case is not moot.”

Id. (internal quotation marks and brackets omitted).

Although the government has made a strong conceptual

case for mootness on Adams’s facts, we cannot say resolution

of this jurisdictional issue is so cut-and-dried. Absent from the

government’s analysis is a discussion of Emory, the

companion case with two overlapping plaintiffs. See supra

n.5. The Emory plaintiffs did appeal the District Court’s

dismissal of their constitutional challenges to FTEPA, see

Emory, 821 F. Supp. 2d. at 219–24, but rather than brief the

issues in full, chose instead to incorporate by reference

Adams’s arguments on these issues, see Emory Appellants’

Br. 5 n.1; Emory Appellants’ Br. 57. As a direct consequence

of this litigation strategy, certain constitutional claims appear

in both Adams and Emory. This substantive overlap proves

quite important for mootness purposes.

9

In Steel Co. v. Citizens for a Better Environment, 523

U.S. 83 (1998), the Supreme Court acknowledged a narrow

set of circumstances in which a court could “decid[e] the

cause of action before resolving Article III jurisdiction.” Id. at

98. Specifically, where “the merits question [is] decided in a

companion case, with the consequence that the jurisdictional

question could have no effect on the outcome,” courts are free

to “decline[] to decide th[e] jurisdictional question.” Id.

(internal citation omitted). We believe Adams and Emory fall

comfortably within Steel Co.’s parameters. Consequently,

where Emory (1) advances an analogous constitutional claim

and (2) that claim is not moot on Emory’s distinct facts, we

are free to bypass the threshold mootness inquiry in Adams

and reach the merits.

We think the Steel Co. exception applies to Adams’s

equal protection, due process, and bill of attainder claims, all

of which appear in the Emory complaint. Compare Adams

Compl. ¶¶ 352–79, 389–98, with Emory Compl. ¶¶ 94-96.

The only lingering question is whether the claims are moot in

Emory. That is, whether Emory plaintiffs have a concrete

interest in their resolution. We believe they do — an

unsurprising proposition when one considers how Emory,

unlike Adams, named private parties as defendants. Cf.

Mootness Memo at 4 (highlighting the sovereign immunity

issues in Adams where “no former, current, or potential air-

carrier employer is a defendant”). To declare the protection-

for-compliance provision unconstitutional would effectively

deprive United and ALPA of FTEPA’s safe harbor. See, e.g.,

Emory, 821 F. Supp. 2d at 218, 243; Emory Appellees’ Br.

30–31.8 Obviously Emory stands to benefit from the

8

Since it would be difficult to determine whether the

protection-for-compliance is unconstitutional without first

determining the scope of “compliance,” we believe plaintiffs’

10

elimination of the defendants’ affirmative defense. For this

reason, then, we are free to reach the merits of Adams’s

parallel claims.

We cannot do the same with Adams’s takings claim,

however, because there is no analogous challenge in Emory.

To be sure, the Emory plaintiffs did purport to “incorporate

the . . . Taking . . . arguments . . . made by appellants in

[Adams],” Emory Appellants’ Br. 57, but their complaint

simply failed to make a distinct Fifth Amendment takings

claim.9 Deprived of their Emory crutch, plaintiffs’ takings

claim will only survive if there exists independent grounds to

defeat mootness. Unfortunately for Adams, we see none. Not

even monetary damages are available to plaintiffs here.10

Adams’s remaining challenges to FAA’s interpretation of

FTEPA — the other claims for which there are no analogues

in Emory — meet the same fate. These claims are expressly

claims as to the correct interpretation of § 44729(e)(1) are likewise

ripe for review.

9

The District Court’s silence on the takings issue bears this

point out. Compare Emory, 821 F. Supp. 2d at 208, with Adams,

796 F. Supp. 2d at 73 (“Plaintiffs allege that these provisions

violate . . . the Takings Clause”).

10

While it is true that FED. R. CIV. P. 54(c) allows a court to

grant relief not specifically sought, we cannot save Adams’s claim

by reading the complaint’s boilerplate prayer for “such other relief

as [the Court] may deem just and proper,” Adams App’x 114, as a

request for monetary damages. See Hedgepeth v. WMATA, 386 F.3d

1148, 1152 n.2 (D.C. Cir. 2004) (Roberts, J.); Dellums v. NRC, 863

F.2d 968, 975 n.8 (D.C. Cir. 1988). Even if we could, the Court

lacks jurisdiction to hear such a claim. See 28 U.S.C. § 1295(a)(2);

id. § 1491(a)(1).

11

predicated on the APA, which waives sovereign immunity

only for “[a]n action . . . seeking relief other than money

damages.” 5 U.S.C. § 702; see also Albrecht v. Comm. on

Emp. Benefits of Fed. Reserve Emp. Benefits Sys., 357 F.3d

62, 68 (D.C. Cir. 2004); Kidwell, 56 F.3d 279, 283–84 (D.C.

Cir. 1995).11 Having given due consideration to what remains

of Adams’s scatter-shot arguments and found them wanting,

we hold on the unique facts of this case that Adams’s claims

against FAA are likewise moot.

C. ANALYSIS

In Adams as in Emory we review the District Court’s

grant of a motion to dismiss de novo, “accepting the factual

allegations made in the complaint as true and giving plaintiffs

the benefit of all inferences that can reasonably be drawn

from their allegations.” Wagener v. SBC Pension Benefit

Plan-Non Bargained Program, 407 F.3d 395, 401 (D.C. Cir.

2005).

1. Fifth Amendment Equal Protection

11

The complaint challenges FAA’s actions as “unlawful and

subject to be set aside under” 5 U.S.C. § 706, see Adams Compl. ¶¶

325, 335, 340, 346, 351, while the prayer for relief specifically

seeks “damages and reasonable attorneys’ fees and costs incurred in

maintaining this action pursuant to 5 U.S.C. § 706(2)(B),” Adams

App’x 114 (emphasis added). The damages sought are not the sort

of “specific relief” allowed under the APA, see Bowen v.

Massachusetts, 487 U.S. 879, 892–94 (1988), and it is established

in this Circuit that where “the underlying controversy is moot,” a

“request for attorneys’ fees [will not] preserve[] the merits of that

controversy for our consideration.” Monzillo v. Biller, 735 F.2d

1456, 1459 (D.C. Cir. 1984).

12

Because age is not a suspect or protected class, it is

entitled only to rational basis review. See, e.g., Kimel v. Fl.

Bd. of Regents, 528 U.S. 62, 83 (2000); Mass. Bd. of Ret. v.

Murgia, 427 U.S. 307, 314 (1976) (per curiam) (employing

the “relatively relaxed” rational basis standard to age-based

classifications while noting that such legislative action “is

presumed to be valid”).12 Under rational basis review, a

legislative classification “must be upheld against equal

protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the

classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,

313 (1993) (emphases added). The burden of disproving the

rationality of the law falls squarely on plaintiffs. See Hettinga

v. United States, 677 F.3d 471, 478–79 (D.C. Cir. 2012) (per

curiam). That burden has not been met here.

The government defends the Act’s nonretroactivity by

asserting a rational relationship to Congress’s “concern for

workplace harmony, which is a legitimate legislative concern

under federal labor law.” Adams Appellees’ Br. 23. We think

this suffices under the rational basis standard.

Air carriers hired new pilots in anticipation of the Age 60

Rule remaining in effect. Had Congress given FTEPA full

retroactive effect, carriers might have reintroduced a

significant number of over-60 pilots back into the Part 121

12

We decline Adams’s invitation to apply a more stringent

form of review to age classification on the basis of two dissimilar

cases, City of Cleburne v. Cleburne Living Center, 473 U.S. 432

(1985), and Romer v. Evans, 517 U.S. 620 (1996). Not only do

these cases predate Kimel by 15 and 4 years, respectively, but the

Court in Cleburne made clear that it has “declined . . . to extend

heightened review to differential treatment based on age.” 473 U.S.

at 441.

13

workforce with full seniority. Given the hierarchical nature of

airline employment, the influx of senior pilots would have

“bumped” less senior pilots and potentially caused some of

the most junior to be fired. See Avera v. ALPA, 436 Fed.

App’x 969, 975 (11th Cir. 2011); Jones v. ALPA, 713 F.

Supp. 2d 29, 35 (D.D.C. 2010). Congress, it follows, did not

act unreasonably or irrationally in tailoring the retroactive

effect of its legislation to minimize the potential disruption to

labor relations in the airline industry. See, e.g., Alaska

Airlines, Inc. v. Brock, 480 U.S. 678, 680 (1987) (highlighting

the “the heavily regulated nature of the [airline] industry”).

Two additional considerations underscore the reasonableness

of the legislature’s actions.

Speaking in favor of the Act, Representative Petri warned

that the United States is “facing a pilot shortage in the near

future” with an estimated “1 billion passengers flying

annually” by 2015. 153 Cong. Rec. H15252-02, 2007 WL

4325399 (daily ed. Dec. 11, 2007). To the extent Congress

thought it necessary to plan for such eventualities, it was

eminently rational to choose the path in which fewer junior

pilots — those who will be around to meet the rising demand

— would be denied experience flying large jets. More

fundamentally, accepting that Congress was free to heed the

advice of the ARC and draft the law prospectively, see E.

Enters. v. Apfel, 524 U.S. 498, 547–48 (1998) (Kennedy, J.,

concurring in the judgment and dissenting in part)

(“[P]rospective economic legislation carries with it the

presumption of constitutionality . . . .”), it would be an odd

thing indeed to hold the legislature has acted irrationally in

attempting to strike a less draconian balance by providing

some measure of protection to over-60 pilots. In short, we

think the District Court properly dismissed the equal

protection challenge.

14

2. Fifth Amendment Due Process

“The Constitution does not require all public acts to be

done in town meeting or an assembly of the whole. General

statutes within the state power are passed that affect the

person or property of individuals, sometimes to the point of

ruin, without giving him a chance to be heard.” Bi-Metallic

Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445

(1915). Over a half century ago, at the outset of the Age 60

litigation, the Second Circuit in ALPA v. Quesada, 276 F.2d

892 (2d Cir 1960), applied this longstanding principle to hold

that there could be no procedural due process violation in

FAA’s promulgation of the Age 60 Rule. What was true of

the original rule then is no less true of FTEPA’s

nonretroactivity provision today: it was “the very antithesis of

adjudication; it was the formulation of a general rule to be

applied to individual pilots at a subsequent time.” Id. at 896.

Thus, even assuming plaintiffs have a cognizable property

interest, we agree with the District Courts that the procedural

due process objections are meritless. See Adams, 796 F. Supp.

2d at 75; Emory, 821 F. Supp. 2d at 221–22; Jones, 713 F.

Supp. 2d at 36–37.

For the reasons discussed in the equal protection

discussion, supra Section II.C.1., the substantive due process

challenges likewise fail. See Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1, 15 (1976) (“It is by now well established that

legislative Acts adjusting the burdens and benefits of

economic life come to the Court with a presumption of

constitutionality, and that the burden is on one complaining of

a due process violation to establish that the legislature has

acted in an arbitrary and irrational way.”); see also Am. Fed’n

of Gov’t Emps., AFL-CIO v. United States, 330 F.3d 513, 523

(D.C. Cir. 2003); Jones, 713 F. Supp. 2d at 37 n.7. This

“doctrine normally imposes only very slight burdens on the

15

government to justify its actions” and those burdens have

been met. George Washington Univ. v. Dist. of Columbia, 318

F.3d 203, 206 (D.C. Cir. 2003).

3. Bill of Attainder

A law is an impermissible bill of attainder “if it (1)

applies with specificity, and (2) imposes punishment.”

Foretich v. United States, 351 F.3d 1198, 1217 (D.C. Cir.

2003) (internal quotation marks omitted). The court below

never addressed the specificity requirement, choosing instead

to resolve the matter on the second prong. See Adams, 796 F.

Supp. 2d at 77. We follow suit.

To determine whether a statute imposes punishment, we

ask:

(1) whether the challenged statute falls within the

historical meaning of legislative punishment; (2)

whether the statute, “viewed in terms of the type and

severity of burdens imposed, reasonably can be said to

further nonpunitive legislative purposes”; and (3)

whether the legislative record “evinces a congressional

intent to punish.”

Foretich, 351 F.3d at 1218 (quoting Selective Serv. Sys. v.

Minn. Pub. Interest Research Grp., 468 U.S. 841, 852

(1984)). Although the second factor tends to be “the most

important,” each could serve as an “independent — though

not necessarily decisive — indicator of punitiveness.” Id. at

1218. Let us consider the three in turn.

First, we find no merit to Adams’s initial effort to classify

FTEPA as a barrier to employment, “a classic historical form

of punishment.” Adams Appellants’ Br. 50. Although correct

on the history, see Selective Serv. Sys., 468 U.S. at 852 (Bill

16

of Attainder Clause “has expanded to include legislative bars

to participation by individuals or groups in specific

employments or professions”), Adams overstates his case.

FTEPA is readily distinguishable from the paradigmatic

“barrier” cases as they have been described by the Supreme

Court.13 The Act did not prevent pilots between the ages of 60

and 65 from seeking and obtaining employment in Part 121

operations; it provided them with an opportunity to return as

pilots on Part 121 flights, albeit without seniority.14 Nor did

FTEPA prevent over-60 pilots from accepting employment

with international carriers or looking elsewhere for similar

13

In a string cite, the Supreme Court in Selective Service

Systems identified those cases as follows:

See, e.g., United States v. Brown, 381 U.S. 437 (1965), in

which Communist Party members were barred from offices

in labor unions; United States v. Lovett, 328 U.S. 303

(1946), in which the law in question cut off salaries to three

named Government employees; Cummings v. Missouri, 4

Wall. 277 (1867), in which a priest was disqualified from

practicing as a clergyman; and Ex parte Garland, 4 Wall.

333 (1867), in which lawyers were barred from the practice

of law.

468 U.S. at 852 n. 9.

14

Likely cognizant of this shortfall in his argument, Adams

presses the point that FTEPA “effectively bars senior pilots from

employment.” Adams Appellants’ Br. 50 (emphasis added). It is

“no surprise,” Adams argues, “that only roughly one percent of the

affected pilots have been re-hired and others have had to move to

third-world countries to find employment.” Id. at 51. But even if

just one percent were rehired under § 44729(e)(1)(B) to pilot Part

121 flights, that is one percent more than would have otherwise

been allowed to do so under the old Age 60 Rule.

17

work. At bottom, there were more piloting opportunities

available for over-60 pilots on December 14, 2007, the day

after FTEPA went into effect, than December 12, 2007, the

day before. If Congress intended the legislation to serve as a

barrier to employment, it failed miserably by doing the very

opposite: increasing and extending employment opportunities.

This notion of FTEPA as benefit-conferring — the

government’s leitmotif on appeal — goes a long way to

resolve the second, functional factor as well. Under this

prong, courts “must consider whether the law under

challenge, viewed in terms of the type and severity of burdens

imposed, reasonably can be said to further nonpunitive

legislative purposes.” Foretich, 351 F.3d at 1220 (internal

quotation marks omitted). Although over-60 pilots would

have doubtless preferred fully retroactive legislation, there is

no reason to believe they were entitled to it. From this

perspective, we are hard pressed to conclude on these facts

that FTEPA somehow imposes an impermissible “burden,”

never mind fails to advance a legitimate legislative purpose.15

As to the third and final prong, we ask whether the

legislative record “evinces a congressional intent to punish.”

Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 478 (1977).

Rejecting Adams’s arguments to the contrary, the court below

concluded “there is simply no indication in the ‘legislative

record’ of an intent to punish.” Adams, 796 F. Supp. 2d at 78.

We concur. Not only is it unreasonable in light of the above

discussion to say that Congress operated with animus because

it conferred only a partial benefit to over-60 pilots, but the

15

We reserve for a future case the question of whether a law

fashioned as benefit-conferring could ever be deemed an

unconstitutional bill of attainder under the Supreme Court’s

functional test.

18

legislative record fails to reveal any malicious intent. To the

contrary, speakers such as Representative Oberstar, sponsor

of FTEPA, celebrated senior pilots and even moved to

expedite the legislation so fewer pilots approaching 60 would

find themselves on the opposite side of the retroactivity line.

See 153 Cong. Rec. H15252-02. Such effusive praise, of

course, could only be expected in the debates for the Fair

Treatment for Experienced Pilots Act.

Finding no impropriety under any of the three factors, we

reject the bill of attainder claim.16

III. EMORY V. UNITED AIR LINES, INC.

A. OVERVIEW

The eight Emory plaintiffs are former pilots for defendant

United Air Lines who turned 60 between December 1 and

December 11, 2007, just days before FTEPA’s December 13

enactment. Although United removed plaintiffs from their

Part 121 flying duties pursuant to the then-operational Age 60

Rule, it was defendant United’s custom and practice to allow

outgoing pilots to remain employed until the last day of their

birth month. Emory Compl. ¶ 20. From their birthdays to their

16

Emory’s appellate briefing departs from the complaint to

bring a second, “distinct” bill of attainder challenge criticizing the

District Court’s application of § 44729(e)(1)(A) insofar as it

allegedly benefits flight engineers at plaintiffs’ expense. Emory

Appellants’ Br. 5 n.1; see also Emory Appellants’ Br. 56–57 (“This

[pro-flight engineer] holding by the District Court applying FTEPA

amounts to quintessential violation of the Bill of Attainder

prohibition.”). We read this as a narrowing gloss, a suggestion that

the statute was even more discriminatory than previously thought. It

does not, however, change the analysis.

19

“involuntar[y] terminat[ion]” on December 31, it follows,

plaintiffs were certified pilots with “unchanged seniority

numbers” in United’s employ. Emory Compl. ¶ 19(c).

Pointing to these curious circumstances, plaintiffs believe

themselves entitled to the benefits of the Age 65 Rule that

governed the final weeks of their employment. In their view,

they satisfied § 44729(e)(1)(A), the first exemption to

FTEPA’s nonretroactivity provision, because it requires only

that the exempted pilot be “in the employment of” an air

carrier, which they claim they were. Emory Compl. ¶ 21(c).

To the extent United and ALPA advocated a contrary

interpretation, plaintiffs contend, they did so discriminatorily

in violation of a host of state and federal laws. We turn to the

interpretive question first.

B. ANALYSIS

1. Interpretive Merits

FTEPA admits of two exceptions to the general

prohibition on retroactive application:

(e) (1) Nonretroactivity. No person who has attained

60 years of age before the date of enactment of this

section may serve as a pilot for an air carrier engaged

in covered operations unless —

(A) Such person is in the employment of that air

carrier in such operations on such date of

enactment as a required flight deck crew

member; or

(B) Such person is newly hired by an air carrier

as a pilot on or after such date of enactment

20

without credit for prior seniority or prior

longevity for benefits . . . .

49 U.S.C. § 44729 (e)(1)(A)–(B).

The Emory plaintiffs interpret the “in such operations”

language in § 44729(e)(1)(A) to modify the term “carrier,”

not “person.” This is significant. If the carrier — and only the

carrier — need be engaged in Part 121 operations on the

enactment date for the exemption to attach, presumably any

over-60 individual then in the carrier’s employ as “required

flight deck crew members” (“RFDCM”) would qualify. If one

accepts, as plaintiffs do, that RFDCM includes “pilots,”17 it

follows that over-60 pilots who were consigned to non-Part

121 flights or were removed from active flight status by

operation of the Age 60 Rule (but remained in the carrier’s

employ) will also qualify as exempt. But if it were otherwise

— if the person invoking the exemption had to actively serve

in Part 121 operations on the enactment date — the universe

of possible RFDCM shrinks dramatically. The phrase would

include only those persons serving secondary roles in Part 121

operations, such as check airmen18 and flight engineers, since

the Age 60 Rule would have barred all Part 121 piloting work.

Plaintiffs’ interpretive argument is certainly not without

merit. Under the “grammatical ‘rule of the last antecedent,’

. . . a limiting clause or phrase . . . should ordinarily be read as

17

See Emory, 821 F. Supp. 2d at 215. For present purposes, we

agree with plaintiffs that a purely facial reading of the statutory

phrase would bear this reading. Pity the passengers on a plane with

an “optional” pilot.

18

Check airmen are also known as “second officers.” Emory,

821 F. Supp. 2d at 210.

21

modifying only the noun or phrase that it immediately

follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). As

applied here, the rule suggests “in such operations” should

modify “that air carrier,” the language that immediately

precedes it — not “Such person,” which begins the sentence.

This is a plausible but in no way dispositive interpretation.

“[T]he last antecedent rule,” we recently observed, “ ‘is not an

absolute and can assuredly be overcome by other indicia of

meaning.’ ” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 3669

v. Shinseki, 709 F.3d 29, 33 (D.C. Cir. 2013) (quoting

Barnhart, 540 U.S. at 26). We find such indicia present here.

Emory’s interpretation fails to account for the prefatory

language in § 44729(e)(1) that bars over-60 persons from

serving as pilots “for an air carrier engaged in covered

operations” unless they qualify for either one of the two

exemptions.19 Logically, we think, one must read

§ 44729(e)(1)(A)’s use of “that air carrier” as a reference

back to § 44729(e)(1)’s “air carrier engaged in covered

operation” language. So understood, it would be redundant to

do as plaintiffs urge and apply “in such operations” to the

already qualified “that air carrier” as opposed to “Such

persons.” The former generates needless surplusage and the

latter does not. See Freeman v. Quicken Loans, Inc., 132 S.

Ct. 2034, 2043 (2012) (“[T]he canon against surplusage . . .

19

Whether § 44729(e)(1)’s broad language prohibiting

nonexempt, over-60 persons from serving as a “pilot for an air

carrier engaged in covered operations” barred pilots from piloting

all flights (including Part 91 and Part 135 flights) or just Part 121

flights for an employer “engaged in covered operations” is a

question we need not reach. The Emory plaintiffs would not qualify

as a RFDCM under either approach and there was no suggestion

that plaintiffs sought — and were wrongfully denied — the

opportunity to pilot non-Part 121 flights.

22

favors that interpretation which avoids surplusage”). That

§ 44729(e)(1)(B) speaks unqualifiedly of “an air carrier” only

buttresses this view. Having defined the term in

§ 44729(e)(1), it was unnecessary for the drafters to do so

with specificity in either exception.20

For these reasons, we reject Emory’s interpretation and

hold that the “in such operations” language of

§ 44729(e)(1)(A) modifies “Such person.” The implications

of such a holding are clear. Because over-60 persons were

barred from piloting Part 121 flights under the Age 60 Rule,

only those over-60 persons serving as RFDCM in a

secondary, non-piloting capacity on December 13, 2007,

would have qualified for the exemption.21 Since “[t]he

plaintiff pilots in this case were not, and could not have been,

employed as pilots after their respective birthdates” and “had

not been reassigned to another ‘required flight deck crew

20

We think this holding consistent with FAA’s initial efforts to

define the nonretroactivity exemptions. In recognizing that the

over-60 pilot must have “conduct[ed] part 121 operations for the

carrier” on the enactment date to be eligible for an exemption under

§ 44729(e)(1)(A), FAA effectively read the Act’s “in such

operations” language to qualify “Some person,” not “that air

carrier.” See Two Legal Interpretations Regarding the Age 65 Law

Effective 12/13/2007, FAA Information for Operators 07023 (Dec.

20, 2007).

21

We have elsewhere in this opinion spoken of check airmen

and flight engineers as possible RFDCM, but we do not take a

formal position as to the scope of a phrase FTEPA does not define.

See Mann v. ALPA, 2012 WL 1447891, at *4 (M.D. Fla. Apr. 26,

2012).

23

member’ position,” the § 44729 (e)(1)(A) exemption plainly

“does not apply.” Emory, 821 F. Supp. 2d at 216.22

* * *

On appeal, Emory proffers a handful of confused

arguments in an effort to undercut this interpretation of

§ 44729(e)(1)(A). We are not persuaded.

Emory first suggests the District Court erred when it

interpreted the Age 60 Rule to mean plaintiffs “were removed

from pilot status and were no longer permitted to serve as

pilots” upon turning 60. Emory Appellants’ Br. 21 (internal

quotation marks omitted). We fail to see the point. The only

question here is whether plaintiffs were engaged in Part 121

operations as RFDCM on the enactment date and the Age 60

Rule made absolutely clear that plaintiffs could not pilot Part

121 flights. Emory has even conceded as much. See Emory

Reply 8 (“[The Age 60 Rule] merely bars them while [sic]

from flying in Part 121 operations.”).

Confusing as it may be, Emory next argues we should

adopt the competing fiction that pilots turning 60 before the

enactment date were permitted to fly in Part 121 operations

because FTEPA repealed the Age 60 Rule in terms so strong

we cannot retroactively assume the Age 60 Rule governed

before the enactment date. The argument relies entirely on

FTEPA’s sunset provision, which declared that the Age 60

Rule “shall cease to be effective” on December 13. 49 U.S.C.

§ 44729(d). But as is clear from both plain language and a

22

Emory does not appear to challenge the District Court’s

conclusion that § 44729(e)(1)(B), the “new hire” exception, “has no

applicability to the plaintiffs in this case.” See Emory, 821 F. Supp.

2d at 217.

24

good dose of commonsense, this argument overreaches. Much

as an end presumes a start, a rule that “cease[s]” having effect

must have previously been “in” effect. It would be absurd to

suggest we have somehow contravened § 44729(d) in

recognizing that the Age 60 Rule governed prior to December

13, 2007.

Emory also maintains that because the concept of

“RFDCM did not exist as law before December 13, 2007, . . .

no Court could determine before FTEPA was enacted if the

Emory plaintiffs; [flight engineers]; or check airmen were

within the RFDCM.” Emory Appellants’ Br. 23. We think this

argument fundamentally flawed. Suffice it to say, courts act

well within their authority when they interpret — and then

apply — ambiguous statutory language to historical facts. It

would be patently absurd to say that Congress can never use

terms not previously in existence. Cf. Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 841 (1984)

(“[T]he amended Clean Air Act does not explicitly define

what Congress envisioned as a stationary source, to which the

permit program . . . should apply.” (internal quotation marks

omitted)).

Finally, Emory renews an estoppel-by-merger argument

that rests entirely on

the fact that the former Continental Chief Pilot, who is

now the United Chief Pilot and Senior Vice-president for

Flight Operations following the [Continental-United]

merger, took the position while at Continental that check

airmen who reached age 60 before . . . the December 13,

2007, enactment of the FTEPA could continue flying as

check airmen until age 65 with full seniority . . . under

exception (A) . . . because they were [RFDCM].

25

Emory, 821 F. Supp. 2d at 216 n.10 (internal quotation marks

omitted). We agree with the District Court, however, that

even if one assumes Continental’s prior activities would bind

United, lobbying FAA to exempt over-60 check airmen but

not these uniquely situated over-60 pilots is not the sort of

“inconsistent positions that warrant application of the doctrine

of judicial estoppel.” Id. United’s interpretation — and our

holding — is entirely consistent with the position that check

airmen may constitute RFDCM while plaintiffs do not.

2. Employment Claims

i. ADEA (United, ALPA)

Counts One and Two of the Emory complaint charge

United and ALPA, respectively, with violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 621 et seq. According to the first Count, United knowingly

or recklessly advanced an “unlawful interpretation of the Age

65 Act . . . when the plaintiffs clearly met the exception.”

Emory App’x 115.23 According to the second, ALPA

discriminated against older pilots in failing to “refer or

sponsor” them “for employment and continued employment”

and “colluding with employer United[] to discriminate against

these plaintiff union members because of age.” Id. at 116. The

harm in both Counts is “interpretative.” Plaintiffs believe

defendants discriminated against this discrete class of older

pilots by advancing a harmful, artificially narrow

interpretation they knew or had reason to know was false.

23

We use the typed page numbers when citing the Emory

appendix.

26

The District Court’s thoroughgoing opinion ably

navigated both the threshold exhaustion issues as well as the

merits of the ADEA claims, see Emory, 821 F. Supp. 2d at

225–33, but the matter can be resolved on appeal without

great fuss. Assuming arguendo plaintiffs have exhausted their

administrative remedies for these particular claims, Counts

One and Two fail for the obvious reason that there has been

no interpretive harm — United and ALPA did not err in their

reading of the relevant statutory and regulatory language.

Because their interpretations thus constitute actions “taken in

conformance” with the Age 60 and 65 Rules, it follows from

the latter’s protection-for-compliance provision that they

“may not serve as a basis for liability or relief in a proceeding,

brought under any employment law or regulation, before any

court or agency of the United States or of any State or

locality.” 49 U.S.C. § 44729(e)(2). In so holding, we read the

safe harbor to apply to employers and unions alike. See Avera,

436 Fed. App’x at 978–79.24

We take the Counts out of order to consider a related but

distinct harm next.

24

We think the reasoning of the District Court sound:

The statutory text of the provision is not limited to employers,

as the plaintiff suggests; it instead states in broad terms, and

without qualification as to the parties to which it applies, that

“[a]n action taken in conformance with this section . . . may

not serve as a basis for liability.” 49 U.S.C. § 44729(e)(2)

(emphasis added). It would, moreover, be totally irrational to

find that United is protected from suit when acting in

compliance with the FTEPA, while finding that the ALPA can

be sued for permitting United to take such action.

Emory, 821 F. Supp. 2d at 218.

27

ii. Wrongful Discharge (United)

Count Four, a wrongful discharge claim, shifts the locus

of injury from United’s interpretation of the Age 65 Rule to

bar plaintiffs from returning to Part 121 service to the

carrier’s decision to involuntarily retire — i.e., terminate —

plaintiffs. The distinction is significant. While the statutory

language compels the former interpretation, neither the Age

60 nor the Age 65 Rule mandate that carriers terminate pilots

who have reached the maximum flying age. Carriers remain

free to reassign those pilots to non-Part 121 flights, offer them

employment as flight deck crew members, or move them into

management positions, though they are by no means obligated

to do so.25 As an entirely practical matter, however, age

ceilings tend to generate a surfeit of pilots forced to compete

for a limited number of non-Part 121 positions, and one way

carriers have responded to this asymmetry is to phase out

older pilots through involuntary termination. See Emory

Compl. ¶ 19(b) (“These circumstances often led to

involuntary termination or discharge of the pilot from the

employer carrier.”). But is this unlawful? Emory certainly

25

We think the Supreme Court’s decision in TWA sheds some

light on the issue. The Court there dealt with a collective-

bargaining agreement in which pilots disqualified from flying for

reasons other than age would “automatically . . . displace less

senior flight engineers” while pilots disqualified under the Age 60

Rule had to “bid” for flight engineer positions and retire if there

were no vacancies prior their 60th birthday. TWA, 469 U.S. at 120.

The Supreme Court split the baby in concluding that while the

ADEA did “not” require TWA “to grant transfer privileges to

disqualified captains,” id., TWA had done so and could not now

enforce the policy “in a discriminatory fashion, even if [it was] free

. . . not to provide the benefit at all,” id. at 121.

28

believes it is. In claiming United “wrongfully discharged each

plaintiff pilot” in violation of the ADEA, Emory App’x 118,

Emory has effectively mounted a facial challenge to the

legality of United’s involuntary retirement program.26

The District Court concluded United’s involuntary

termination of pilots turning 60 years old was not a violation

of the ADEA. Mandatory retirement may constitute prima

facie age discrimination, the lower court reasoned, but

compliance with the Age 60 Rule constitutes a bona fide

occupational qualification (“BFOQ”), an affirmative defense

under the ADEA. See Emory, 821 F. Supp. 2d at 230–32.

Although the District Court is not alone in this view, there is

no consensus among the court of appeals. Compare Coupé v.

Fed. Express Corp., 121 F.3d 1022, 1023 (6th Cir. 1997),

with EEOC v. Boeing Co., 843 F.2d 1213, 1216–20 (9th Cir.

1988). This Circuit, for one, has already declined to “reach

the question whether the Age 60 Rule constitutes a bona fide

occupational qualification within the meaning of § 623(f)(1)

26

Some brief clarification is in order. Despite Emory formally

raising this claim in Count Four of his complaint, both the District

Court and Emory’s appellate briefing treat it as a Count One issue,

i.e., as an extension of the “interpretive” ADEA claim. See, e.g.,

Emory, 821 F. Supp. 2d at 225. We think distinguishing on the

basis of the actual harms alleged is more faithful to the complaint.

For similar reasons, we charitably read the Emory plaintiffs’

footnoted concession that they “will not present arguments on the

merits of the wrongful discharge allegations in Court 4 [sic],”

Emory Appellants’ Br. 54 n.24, as a formal waiver of Count Four’s

“FTEPA” and “Public Policy” based unlawful discharge claims, but

not the ADEA-based claim.

29

of that Act.” Prof’l Pilots Fed’n, 118 F.3d at 763. Believing

the question not properly before us, we do the same today.27

Plaintiffs in the proceeding below disputed United’s

claim that their mandatory retirement program is a BFOQ

under Carswell v. ALPA, 540 F. Supp. 2d 107 (D.D.C. 2008),

see Emory, 821 F. Supp. 2d at 230–31, but they have not

renewed those challenges on appeal. Indeed, Emory’s moving

brief offers no reason to doubt the District Court’s finding in

United’s favor. The only mention of BFOQ comes in the

reply brief and this cursory, paragraph-long discussion offers

but one argument: “With the demise of the Age 60 Rule, no

BFOQ defense could be mounted against the Emory

December pilots for the few days they were under the Age 60

Rule and still in the employment of United.” Emory Reply

27–28. We accordingly find that the Emory plaintiffs waived

their BFOQ arguments on appeal, having raised them for the

first time in their reply brief. See, e.g., Am. Wildlands v.

Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008).

iii. Breach of the Duty of Fair Representation (ALPA)

Stepping back, Count Three of the Emory complaint

contends ALPA violated its “duty to each [union] member to

provide . . . fair, lawful, and non-discriminatory

representation” by knowingly and willfully “scuttl[ing]

plaintiff pilots’ immensely valuable employment rights on the

basis of age and entirely for the advancement of younger pilot

union members.” Emory App’x 117. That duty originates not

27

We likewise reserve judgment on the question whether

mandatory retirement programs are so intimately bound with the

Age 60 and Age 65 Rules that the former could be said as “in

compliance” with the latter, thus triggering § 44729(e)(2), the

protection-for-compliance provision.

30

within the plain language of the Railway Labor Act,28 which

contains no such provision, but through “a series of cases

involving alleged racial discrimination by unions” in which

“the Supreme Court recognized that the Railway Labor Act

imposes a duty on the union to . . . serve the interests of all

members without hostility or discrimination toward any, to

exercise its discretion with complete good faith and honesty,

and to avoid arbitrary conduct.” May v. Shuttle, Inc., 129 F.3d

165, 177 (D.C. Cir. 1997) (internal quotation marks omitted);

see also Steele v. Louisville & Nashville R.R. Co., 323 U.S.

192, 199 (1944). As might be expected given the duty’s

origins as judicially constructed doctrine, the Railway Labor

Act is also without a specific statute of limitation. It was only

by borrowing the “six-month statute of limitations applicable

to claims for breach of the duty of fair representation under

Section 10(b) of the National Labor Relations Act,” Emory,

821 F. Supp. 2d at 233, that the District Court could strike

plaintiffs’ claim — filed almost one year after termination —

as time barred.29 We think this the right approach.

Where a statute is without an appropriate statute of

limitations, “we do not ordinarily assume that Congress

intended that there be no time limit on actions at all; rather,

our task is to ‘borrow’ the most suitable statute or other rule

of timeliness from some other source.” DelCostello v. Int’l

28

“In 1936, Congress extended the Railway Labor Act to

cover the then small-but-growing air transportation industry.” Int’l

Ass’n of Machinists, AFL-CIO v. Cent. Airlines, Inc., 372 U.S. 682,

685 (1963).

29

The “claim accrued, and the statute of limitations began to

run, by the beginning of January 2008 at the latest.” Emory, 821 F.

Supp. 2d at 233. By this point, plaintiffs either knew or should have

known both ALPA and United’s interpretive positions.

31

Bhd. of Teamsters, 462 U.S. 151, 158 (1983). Although the

Supreme Court has “generally concluded that Congress

intended that the courts apply the most closely analogous

statute of limitations under state law,” id., it has

acknowledged that “state statutes of limitations can be

unsatisfactory vehicles for the enforcement of federal law. In

those instances, it may be inappropriate to conclude that

Congress would choose to adopt state rules at odds with the

purpose or operation of federal substantive law.” Id. at 161.

Such was the case in DelCostello, where the Court applied

§ 10(b), the National Labor Relations Act’s six-month

limitation period, 29 U.S.C. § 160(b), to a hybrid breach of

contract/fair representation claim brought under the Labor

Management Relations Act, 29 U.S.C. § 185 et seq. In the

Court’s view, it was simply unnecessary to resort to state law

where “a federal statute of limitations actually designed to

accommodate a balance of interests very similar to that at

stake” was readily available. DelCostello, 462 U.S. at 169.

In the wake of DelCostello, a majority of the circuits

extended § 10(b)’s six-month statute of limitations period to

the Railway Labor Act context, see, e.g., Smallakoff v. ALPA,

825 F.2d 1544, 1545–46 (11th Cir. 1987) (collecting cases);

Triplett v. Bhd. of Ry., Airline & S.S. Clerks, Freight

Handlers, Express & Station Emps., Local Lodge No. 308,

801 F.2d 700, 702 n.2 (4th Cir. 1986) (same), and the

Supreme Court hinted it might do the same, see West v.

Conrail, 481 U.S. 35, 38 n.2 (1987). This Court has twice

applied § 10(b) to Railway Labor Act-based claims without

specific limitation provisions. See May, 129 F.3d at 177

(breach of duty of fair representation); Atlas Air, Inc. v.

ALPA, 232 F.3d 218, 222 (D.C. Cir. 2000) (discriminatory

anti-union policies). Try as plaintiffs might to distinguish the

present case as one in which there was “no time pressure to

gather evidence of member discord because there is no

32

internal remedy,” Emory Appellants’ Br. 52, we see no reason

to depart from prior practice. Plaintiffs have failed to cite a

single case in which the availability vel non of an “internal

remedy” was said to alter the limitations calculus. Whether

employees have (or have complied with) internal remedies is

fundamentally an exhaustion issue; it might toll the

limitations clock, see Stevens v. Nw. Ind. Dist. Council,

United Bhd. of Carpenters, 20 F.3d 720, 729 (7th Cir. 1994),

but it need not change the limitations clock. In sum, we hold

that § 10(b)’s six-month limitation period applies to the duty

of fair representation claims brought under the RLA.

Emory resorts to tolling arguments in an effort to turn

back the clock and save the claim, but the arguments are

fundamentally misguided and easily dismissed.

Emory first contends “ALPA is estopped from asserting,

and [has] waived a six-month bar” because of a grievance the

union filed “attack[ing]” Continental Airline’s pre-merger

interpretation of the Act. Emory Appellants’ Br. 53. There are

multiple problems with this line of argument. To wit, there is

simply no merit to Emory’s suggestion that Continental —

and thus United — had interpreted FTEPA in plaintiffs’

“favor[].” Emory Appellants’ Br. 54. As explained in Brooks

v. ALPA, 630 F. Supp. 2d 52 (D.D.C. 2009), Continental read

FTEPA to “treat[] flight instructors and check airmen” as

RFDCM. Id. at 54. Of course, the Emory plaintiffs are neither

flight instructors nor check airmen and there is nothing

necessarily inconsistent about reading “RFDCM” to include

these two positions but not the Emory plaintiffs.

Emory also alleges futility “under these facts,” noting

how “ALPA repeatedly rebuffed these December pilots [sic]

request for help during the transition to the Age 65 limit.”

Emory Appellants’ Br. 54. “In this highly charged setting,”

33

Emory reasons, “it would have been legally futile for the

Emory December pilots to present a DFR claim or file a

Federal court lawsuit within a dubious six-month limit.” Id.

We think plaintiffs conflate “futile” and “difficult.” By their

own admission, there were no internal remedies to exhaust.

See id. at 52. It would not have been legally futile to bring suit

after their involuntary termination, just difficult. To put

matters pointedly, an empty claim of “futility” will not save

plaintiffs who chose to sit on their claims.

Count Three against ALPA is thus time barred.

iv. Fraudulent Misrepresentations (United, ALPA)

Fraudulent misrepresentation in the District of Columbia

requires, inter alia, proof of a “false representation.” Chedick

v. Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998). Having

thoroughly rejected the complaint’s working presumption that

United and ALPA erred in their interpretation of FTEPA, see

Emory Compl. ¶¶ 81–83; Emory, 821 F. Supp. 2d at 242,

Count Five’s fraudulent misrepresentation claim is entirely

without basis.30

v. Constitutional Challenges

We dismiss Emory’s incorporated constitutional claims

for the reasons discussed supra in Section II.C.

30

Believing federal law preempted the common law fraud and

misrepresentation claim against ALPA but not United, see Emory,

821 F. Supp. 2d at 240–42, the District Court reached the merits

only with regard to United. Because the matter is easily resolved on

the interpretive merits and our holding applies equally to ALPA, we

think it unnecessary to reach either the preemption issue or the

District Court’s alternative grounds for rejecting Count Five.

34

IV. CONCLUSION

The pilots in Emory and Adams are sympathetic

plaintiffs, but there is only so far this flawed litigation can go.

For the foregoing reasons, the judgments of the District

Courts as they pertain to claims not dismissed as moot are

therefore

Affirmed.