Petition for Writ and Appendix — Butler v. Federal Aviation Administration

Supreme Court of the Cited States

.

DALLAS E. BUTLER, JEANNIE C. DELAMOS,

ALAN J. DESA, TOM GAMBLE,

WOODROW M. HASSINGER, RUDY MACK, SR.,

JOE R. MCCABE, PHILIP B. NASH, MICHAEL L. OKSNER,

WILLIAM SIEGEL, PAUL TURNER III,

AND ARTHUR B. WARD,

Petitioners,

FEDERAL AVIATION ADMINISTRATION,

AND UNITED STATES OF AMERICA,

Respondents.

S

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

S

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

S

Anthony P. X. Bothwell

Counsel of Record

LAW OFFICES OF

ANTHONY P. X. BOTHWELL

350 Bay Street

Suite 100 PMB 314

San Francisco, California 94133

(415) 370-9571

Counsel for Petitioners

THE LEX GROUP®*© ¢ 1750 K Street, NW @ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax (202) 955-0022 ¢ www.thelexgroupdc.com

QUESTIONS PRESENTED

Whether a regulatory agency decision, based on

falsified data, is inherently arbitrary and fails to meet

the substantial evidence test.

Whether a lower court judgment, deferring to a

regulatory agency's misrepresentation of both the

factual record and the nature of the cause of action,

should be reversed.

PARTIES TO THE PROCEEDING

The parties to this proceeding are identified in the

caption of the case. No corporation is a party to this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........c.csccscscscrossssssscessesesececesssessncsoees i

PARTIES TO-THE PROCEEDING. ...........ccccsssscssssssenssencnccseseres ii

TABLE OF QCONTENTSS ...2.2000.0:csassassesssosscscsconsssecccssesessseneseneseese iii

TABLE OF AUTHORITIES...............ccssssscscssscscsececseresesosssssassrsses Vv

CRPIINIOIN BELOW, nsccsccssecsssscssassscsnssessessessancsssnnasssssanasincostnassontia 1

TUTTI CTI, neccncsesnsssnsnecesssosssisosbssnoncnsensssasnsasnscsesosussenstineneenens 2

RELEVANT STATUTES AND REGULATIONG...........eeeseee 2

WHAT 35 SOUGIAP oanccccncsscorsasesascosnasnsnsosonsnsesisnesssenenaiasesenoonese 8

STATEMENT OF THE CASE.........-css-secscscscssscseosssssosesesesnsnsnsaesen 9

FACTS MATERIAL TO QUESTIONS PRESENTED .............. 9

REASONS FOR GRANTING THE WRIT........cccsceseeeseeeseeeees 11

I. A regulatory agency decision, based

on falsified data, is inherently

arbitrary and fails to meet the

substantial evidence test ..........scsssscsseseseeneees 11

iv

Il. A lower court judgment, deferring

to a regulatory agency's

misrepresentation of both the factual

record and the nature of the cause of

action, should be reversed ................:0sssese000e

CAO EO ccesncnpcncctnnsisasienanienecepennnnniennscannminiioneiaingnssnnsnssmmentunie

APPENDIX

TABLE OF AUTHORITIES

Page(s)

Cases:

Abbott Laboratories v. Gardner,

ee Re A GIT Piacectitsnctinnnensnnntosnsinnnsansitenniiastiniitsaniins 14

Chlorine Chemistry Council v. E.P.A.,

BOG BBG TABS CI, Cie, FD) cccccsssorsccsccscsssccsisscesnesansss 11

Lincoln v. Vigil,

I FB TR Ce artcnsececnvonesanscsieissnerssssnsosiesainsenininasniesi 12

Padula v. Webster,

BE BA BF CIA. Cae. TI) oc sscrssccrccssisacnsasnsssesasonsnosasens 12

Steenholdt v. F.A.A.,

BER PE GRD CK. Cie, Fp ssccttisssinincnssinorsesssarascsercescas 11

Tozzi v. U.S. Dept. of Health and Human Services,

BF a Cin Che PE Pi trcnenineniacnsscssanssesnsnncecenntes 14

U.S. v. Nixon,

irs cieintieinnncetnntnintitriisaiianiiansininntncesiasesien 12

U.S. Air Tour Ass'n v. FAA,

Be Re CR, Cie, FD esrccentscsennescissanesionnascnrienats 14

Yetman v. Garvey,

Br eG CFA GRE. BI) ccericectesscnsnnsanconmnnscnnncinsnesioniin 13

Statutes:

I Re I asst dlessercliintiedincinkeistiesedsaromsesincensdinescavias 7, 11,14

NI I eter ticuib bei veeictnpsistatbdvaddsicasachcsadeseiestinckiassecaien: 2

a nh I icc cctncssnceicatapsseindnhins Sspnasenasioirchinddasdcanasa, 7

Pes CINE isc hcsselisceiciasasuspbncincictbivestcadsionitdapdniniasacescamcatacace 5

ee I ies is anasetardisnotansainsdacenieininsildcinconcciosinas 3,12

Oe OO I ieee cnicieaiccanecabeatsatigcnslasalabarncins passim

sin «an dS ce a a TATRA ROE 3

a Ie OE cesacisiiiahslintrbassisisieigidadictinstas duazarcsaiasen 2,9

Information Quality Act (Section 515(a) of the

Treasury and General Government Appropriations

Act for Fiscal Year 2001 (Pub. L. No. 106-554; H.R.

POPU ieisisisstbchennasats asad dabinbiaidiaadadibsoriuindabebioniacdeises coins 4,12

Office of Management and Budget, Guidelines for

Ensuring and Maximizing the Quality, Objectivity,

Utility, and Integrity of Information Disseminated

by Federal Agencies (Republication; 67 Fed. Reg.

in Oy DU. By DINE snscacensnssncntnngnsnnisiasonansenntninnntonssen 5, 12

SN St ASR BEE EE eh ele =

tt

Rule:

U.S. Sup. Ct. R. 10(c)

Regulation:

14 C.F.R. § 121.383(c)

No.

In the Supreme Court of the United States

DALLAS E. BUTLER, JEANNIE C. DE LAMOS, ALAN J. DESA,

TOM GAMBLE, WOODROW M. HASSINGER, RUDY MACK, SR.,

JOE R. MCCABE, PHILIP B. NASH, MICHAEL L. OKSNER,

WILLIAM SIEGEL, PAUL TURNER III, AND ARTHUR B. WARD,

Petitioners,

V.

FEDERAL AVIATION ADMINISTRATION,

AND UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

Dallas E. Butler et al., the petitioners, respectfully

request a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit.

OPINION BELOW

The September 24, 2004 Judgment of the United

States Court of Appeals for the District of Columbia Circuit

(D.C. Circ. no. 03-1386) is reproduced in the Appendix at

page la. The December 14, 2005 Order of the United States

Court of Appeals for the District of Columbia Circuit

denying the petitioners' timely request for renearing and

request for rehearing en banc is reproduced in the Appendix

at page 28a.

JURISDICTION

The Federal Aviation Administration executed its

Denial of Exemption on October 6, 2003 (reproduced in the

Appendix at page 3a). The jurisdiction of the United States

Court of Appeals for the District of Columbia Circuit was

invoked pursuant to 49 U.S.C. § 46110(a). The jurisdiction of

this Court is invoked pursuant to 28 US.C. § 1254 and

Supreme Court Rule 10(c), inasmuch as the United States

Court of Appeals for the District of Columbia Circuit has

decided an important question of federal law that has not

been, but should be, settled by this Court.

RELEVANT STATUTES AND REGULATIONS

14 C.F.R. § 121.383(c) provides:

"No certificate holder may use the

services of any person as a pilot on an

airplane engaged in operations under this

part if that person has reached his 60th

birthday. No person may serve as a pilot on

an airplane engaged in operations under this

part if that person has reached his 60th

birthday."

49 U.S.C. § 44701(f) provides:

"The Administrator may grant an

exemption from a requirement of a regulation

prescribed under subsection (a) or (b) of this

section or any of sections 44702-44716 of this

title if the Administrator finds the exemption

is in the public interest."

49 U.S.C. § 44703 provides:

"The Administrator of the Federal

Aviation Administration shall issue an

airman certificate to an individual when the

Administrator finds, after investigation, that

the individual is qualified for, and physically

able to perform the duties related to, the

position to be authorized by the certificate."

49 U.S.C. § 40101(a) provides:

"In carrying out subpart II of this part

and those provisions of subpart IV applicable

in carrying out subpart II, the Secretary of

Transportation shall consider the following

matters, among others, as being in the public

interest and consistent with public

convenience and necessity:

(1) assigning and maintaining safety as the

highest priority in air commerce.

***

(4) the availability of a variety of adequate,

economic, efficient, and low-priced services

without unreasonable discrimination or

unfair or deceptive practices.

(5) coordinating transportation by, and

improving relations among, air carriers, and

encouraging fair wages and working

conditions.

***

(B) to encourage efficient and well-managed

air carriers to earn adequate profits and

attract capital, considering any material

differences between interstate air

transportation and foreign air transportation.

zeke

(9) preventing unfair, deceptive, predatory,

or anticompetitive practices in air

transportation.

xk

(15) strengthening the competitive position of

air carriers to at least ensure equality with

foreign air carriers, including the attainment

of the opportunity for air carriers to maintain

and increase their profitability in foreign air

transportation.

(16) ensuring that consumers in all regions of

the United States, including those in small

communities and rural and remote areas,

have access to affordable, regularly

scheduled air service."

The Information Quality Act (Section 515(a) of the

Treasury and General Government Appropriations Act for

Fiscal Year 2001 (Pub. L. No. 106-554; H.R. 5658)) provides:

"The Director of the Office of

Management and Budget shall, by not later

than September 30, 2001, and with public and

Federal agency involvement. issue guidelines

under sections 3504(d)(1) and 3516 of title 44,

United States Code, that provide policy and

procedural guidance to Federal agencies for

ensuring and maximizing the quality,

objectivity, utility, and integrity of

information (including statistical

information) disseminated by Federal

agencies in fulfillment of the purposes and

NA i

5

provisions of chapter 35 of title 44, United

States Code, commonly referred to as the

Paperwork Reduction Act."

The Paperwork Reduction Act, 44 U.S.C. § 3501,

provides:

"The purposes of this subchapter are

to...

(2) ensure the greatest possible public benefit

from and maximize the utility of information

created, collected, maintained, used, shared

and disseminated by or for the Federal

Government;

eke

(4) improve the quality and use of Federal

information to strengthen decisionmaking,

accountability, and openness in Government

and society;

eke

(8) ensure that the creation, collection,

maintenance, use, dissemination, and

disposition of information by or for the

Federal Government is consistent with

applicable laws..."

Office of Management and Budget, Guidelines for

Ensuring and Maximizing the Quality, Objectivity, Utility,

and Integrity of Information Disseminated by Federal

Agencies (Republication; 67 Fed. Reg. 8452 et seq., Feb. 22,

2002) provide, in part:

"These final guidelines implement

section 515 of the Treasury and General

Government Appropriations ct for Fiscal

Year 2001 (Public Law 106-554; H.R. 5658). ....

It is crucial that information Federal agencies

disseminate meet thee guidelines. .... These

guidelines apply to agencies subject to the

Paperwork Reduction Act (44 U.S.C. chapter

35). Agencies are directed to develop

information resources management

procedures for reviewing and substantiating

(by documentation or other means selected

by the agency) the quality (including the

objectivity, utility, and integrity) of

information before it is disseminated. In

addition, agencies are to _ establish

administrative mechanisms allowing affected

persons to seek and obtain, where

appropriate, correction of information

disseminated by the agency that does not

comply with the OMB or agency

“With regard to analysis of risks to

human health, safety and the environment

maintained or disseminated by the agencies,

agencies shall either adopt or adapt the

+ ae principles applied by Congress in the

e Drinking Water Act Amendments of

ne (42 U.S.C. 300g-1(b)(3)(A) & (B)).' ....

“Objectivity’ includes § whether

disseminated information is being presented

in an accurate, clear, complete, and unbiased

manmer. This involves whether the

information is presented within a proper

context."

Nadas icenaiens rh

The Safe Drinking Water Act Amendments of 1996

(42 U.S.C. 300g-1(b)(3)) provide:

"(A) Use of science in decisionmaking

In carrying out this section, and, to the degree

that an Agency action is based on science, the

Administrator shall use—

(i) the best available, peer-reviewed science

and supporting studies conducted in

accordance with sound and objective

scientific practices; and

(ii) data collected by accepted methods or

best available methods (if the reliability of the

method and the nature of the decision

justifies use of the data)."

5 U.S.C. § 706 provides:

"To the extent necessary to decision and

when presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meaning or applicability of the terms of an agency

action. The reviewing court shall —

(1) compel agency action unlawfully

withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law; .

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory

right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

"In making the foregoing

determinations, the court shall review the

whole record or those parts of it cited by a

party, and due account shall be taken of the

rule of prejudicial error."

WHAT IS SOUGHT

The petitioners, pursuant to 49 U.S.C. § 44701(f), seek

exemption from 14 C.F.R. § 121.383(c), the age 60 rule, which

prohibits commercial airline pilots from flying beyond age

59. The Federal Aviation Administration, relying on

intentionally falsified age-safety data, has maintained a rigid

policy of denying all age exemption requests. The judgment

of the United States Court of Appeals for the District of

Columbia Circuit rested on two premises - both factually

incorrect: (1) that the petitioners had provided no

information about themselves, and (2) that the petitioners

challenged the validity of the age 60 rule. The petitioners

ask that their requests for exemption be considered on the

merits.

STATEMENT OF THE CASE

The petitioners filed a petition with the Federal

Aviation Administration ("the FAA," "the agency") on June

10, 2002, pursuant to 49 U.S.C. § 44701(f), requesting

exemption from 14 C.F.R. § 121.383(c), the age 60 rule. The —

petitioners subsequently filed three amendments to that

petition, the last being filed on August 20, 2003. The Federal

Aviation Administration on October 6, 2003 issued an order

denying that petition. The petitioners, pursuant to 49 U.S.C.

§ 46110(a), petitioned the United States Circuit Court of

Appeals for the District of Columbia, requesting judicial

review of that order. The Court of Appeals issued a

judgment on September 24, 2004, upholding the agency's

decision. The petitioners on November 18, 2004 petitioned

for rehearing and for rehearing en banc, and the Court of

Appeals issued a decision on December 15, 2004 denying

that request. The petitioners here petition the Supreme

Court for a writ of certioran.

FACTS MATERIAL TO QUESTIONS PRESENTED

The 12 petitioners, both active and retired

commercial airline pilots around age 60, petitioned the

Federal Aviation Administration (the FAA," "the agency")

for exemption from 14 C.F.R. § 121.383(c), a regulation that

prohibits such pilots from flying beyond age 59. In

petitioning the agency, they relied on 49 U.S.C. § 44701(f),

which empowers the agency to grant such exemptions in the

public interest. (Pet. 1-3; Pet. 3d Amend.")

1 Pet. 1-3 refers to pages 1 through 3 of the pilots' petition to the FAA. Pet.

3d Amend. refers to the third amendment to the pilots’ petition to the

FAA. That petition and its amendments are reproduced in the Appendix

at page 207a.

10

The pilots' petition to the FAA presented

information regarding their qualifications, including the

facts that they have unblemished medical and safety

performance records; that they are far better qualified than

recovering alcoholics, heart patients and other ill pilots often

granted exemptions to fly; that their experience renders

them better qualified than younger pilots to handle

unexpected incidents and emergencies in flight; that they

are ready and willing to continue fiying in the public

interest; and that both they and the airlines' passengers

suffer irreparable harm as a proximate result of an

unwritten policy of the FAA automatically to deny all age

exemption requests. (Pet. 1-3, 6-7.)

Their petition to the agency also provided extensive

documentation showing that the FAA for decades has

misrepresented both the purpose of its no-exemptions

policy and the data that purportedly justifies it. The

petitioners' exhibits showed that a former FAA

Administrator, two Federal Air Surgeons and other FAA

officials privately have conceded that their enforcement of

the age 60 rule never had anything to do with safety. (Pet.

95-56; Pet. Exh. EE, FF.2) This record showed further that

the FAA has relied on falsified age-safety statistics to justify

its policy of no age exemptions. (Pet. 23-36, 57-63; Pet. Exh.

Q.)

Exhibits presented with the pilots' petition to the

FAA documented that FAA officials privately have

conceded that the only reason for rigid enforcement of the

rule was a supposed economic favor to certain airline

interests. The record showed that favoritism initially was

meant to benefit an executive who had lost a series of labor

arbitrations over his company's age 60 retirement policy,

? Pet. Exh. EE, FF refers to exhibits EE and FF of the pilots' petition to the

FAA. Exhibits to that petition, including internal FAA memoranda and

hand-written documents, are provided in the record (D.C.Cir., J.A.A.).

ee

11

and later was supposed to benefit airline executives who

would find it administratively inconvenient to alter their

retirement programs. (Pet. Exh. 10-17; Pet. Exh. B, C, J.)

In fact, it is undisputed that the airline industry and

airline unions increasingly are opposed to the FAA's

inflexibility in grounding all the pilots on their 60th

birthday. (Pet. 2d Amend.; Southwest Airlines amicus curiae

brief.3) It also is undisputed that Europe, Japan, Australia

and others around the world have recognized the fallacy of,

and declined to imitate, the FAA's age policy. Pet. 69-70.

In their petition to the FAA, the pilots did not

challenge the legal validity of the age 60 rule, 14 C.F.R. §

121.383(c). Rather, they asked the agency to exercise its

statutory authority, under 49 U.S.C. § 44701(f), to grant their

request for exemption from the age 60 rule, in the public

interest. (Pet. 2,5, 75-76.)

REASONS FOR GRANTING THE WRIT

I. A regulatory agency decision, based on falsified

data, is inherently arbitrary and fails to meet the

substantial evidence test.

The Administrative Procedures Act, 5 U.S.C. § 706,

provides that, in reviewing an agency action, the court shall

"hold unlawful and set aside agency action, findings, and

conclusions found to be... arbitrary, capricious, an abuse of

discretion, or... unsupported by substantial evidence...."

The measure of "substantial evidence" is found in

judicially manageable standards. Steenholdt v. F.A.A., 314

F.3d 633, 638 (D.C. Cir. 2003). See also Chlorine Chemistry

Council v. E.P.A., 206 F.3d 1286, 1290-91 (D.C. Cir. 2000).

3 Southwest Airlines amicus curiae brief being filed in support of this

petition for certiorari.

12

Judicially manageable standards are to be found in

regulations. Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir.

1987).

The FAA's use of concededly false age-safety data in

its denial of the pilots' request for exemptions failed to

comply with mandatory standards established in the

Information Quality Act of 2000 (section 515 of the Treasury

and General Government Appropriations Act for Fiscal Year

2001 (Pub. L. No. 106-554; H.R. 5658)). It also violated

guidelines pursuant to those statutory standards (Office of

Management and Budget, Guidelines for Ensuring and

Maximizing the Quality, Objectivity, Utility, and Integrity of

Information Disseminated by Federal Agencies;

Republication; 67 Fed. Reg. 5365 et seq., Feb. 5, 2002). The

agency's impunity defies of the rule that, so long as a federal

regulation exists, the Executive Branch is bound by it (U.S.

v. Nixon, 418 U.S. 683, 695 (1974)).

Even if the guidelines were not binding per se,

nevertheless they supplied standards judicially manageable

for the purpose of defining arbitrary and capricious

conduct, abuse of agency discretion, and lack of substantial

evidence.

Judicially manageable standards also are to be found

in statutes that circumscribe agency discretion. Lincoln v.

Vigil, 508 U.S. 182, 193 (1993). Congress has ordered such

standards in statutes that delimit FAA's discretion in

deciding whether to grant the exemptions sought by the

petitioners. Thus the agency must consider implications of

safety foremost, but also effects on national defense,

aviation economics and the international competitiveness of

U.S.-based airlines. (49 U.S.C. § 40101(a).)

13

The FAA has been unable to refute the fact that

multi-pilot crews, redundant pilot-copilot communication

procedures, and modern cockpit technology, create a fail-

safe system to prevent an accident even if the pilot,

regardless of age, were to become incapacitated. (Pet. 41-

54.) Required simulator testing, frequent medical

examinations, and constant monitoring of performance

weed out potentially deficient pilots, regardless of age.

Those who continue to fly airliners are a super-select

population of extraordinarily fit and able individuals.

The FAA has relied on distorted statistics which

show that older pilots of small airplanes have a higher

accident rate than younger pilots of large airliners. This

methodologically false comparison is not valid, because

small aircraft tend to have much higher accident rates than

airliners, and the rates are not age-related. The agency long

has been aware of deficiencies in age-safety data on which it

has relied. Yetman v. Garvey, 261 F.3d 664, 677 (7th Cir.

2001). FAA officials quietly conceded flaws in data that the

agency nevertheless relied on in its public statements and

decisions.

The experience of other major air powers worldwide

confirms that qualified pilots over age 59 continue to fly

safely. The FAA has not identified a single airliner accident

attributable to the age of a pilot.‘

The FAA's inflexible policy of denying all age

exemption requests is the epitome of arbitrariness. The

FAA's decision, denying the petitioners' request for

exemption from the age 60 rule, was arbitrary and failed to

meet the test of substantial evidence.

4 The FAA's final brief, filed with the United States Court of Appeals for

the District of Columbia Circuit, is repreduced in the Appendix at page

129a.

14

Il. A lower court judgment, deferring to a regulatory

agency's misrepresentation of both the factual

record and the nature of the cause of action, should

be reversed.

The Administrative Procedures Act, 5 U.S.C. § 706

provides that the reviewing court, in determining whether

to set aside an agency action, "shall review the whole record

or those parts of it cited by a party, and due account shall be

taken of the rule of prejudicial error."

Persons harmed by an agency action have a right of

judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136,

140 (1967). Persons harmed by an agency's dissemination of

questionable data are entitled to their day in court (Tozzi v.

U.S. Dept. of Health and Human Services, 271 F.3d 301, 307

(D.C. Cir. 2001). No judicial deference is owed to the FAA's

authority when the government's own data suggests the

contrary (U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018

(D.C. Cir. 2002). The courts owe no deference to an agency

that misrepresents material facts.

The Judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case appeared to

be based on little more than a reading of the first page of the

FAA's disingenuous argument. It adopted the government's

factually incorrect claims - that petitioners had provided no

specific information showing why the requested exemptions

would not adversely affect safety, and that the petitioners

had challenged the legal validity of the age 60 rule, 14 C.F.R.

§ 121.383(c). As outlined above, the record shows that the

pilots' petition to the FAA provided extensive specific

information showing why the requested exemptions would

not adversely affect safety. Furthermore, the petitioners

plainly did not challenge the legal validity of the age 60 rule,

14 C.F.R. § 121.383(c). As cited above, and as the record

plainly shows, the 12 pilots petitioned, in accordance with

15

49 US.C. § 44701(f), for lawful exemption from the

concededly valid rule.

Relevant facts and law were expounded to the

United States Court of Appeals for the District of Columbia

Circuit in the Final Brief for the Petitioners (reproduced in

the Appendix at page 56a); an Amicus Curiae Brief by the

Southwest Airline Pilots Association (reproduced in the

Appendix at page 194a); and the Petitioners’ Amended

Petition for Rehearing En Banc (reproduced in the Appendix

at page 29a).

By deceptively equating the pilots' request for

exemptions to a legal challenge to the validity of the

regulation, the FAA induced the court below to deny the

pilots a hearing based on the facts and the law. Judgment

based on fallacy fails.

CONCLUSION

The Federal Aviation Administration should be

required to decide petitions for exemption on the merits, not

on the basis of an arbitrary policy. The agency should be

required to base its practices on relevant facts and law, not

falsified data. It should be required to disclose, not

misrepresent, the purposes of its policies.

If rigid enforcement of the age 60 rule ever served

any valid purpose (a doubtful proposition at best), it

certainly outlived its usefulness long ago. Stereotypical

images of 60-year-olds that commonly were accepted in our

society in the 1950s are no justification for arbitrary actions

by a federal agency in the 21st century. Technology,

medicine, and aviation have advanced.

16

Our understanding of the duty of government

officials in a democracy to tell the truth and follow the law

also, hopefully, has advanced. The elected representatives

of the people, who enacted the statute allowing for

exemptions, expressly provided for exemptions to be

granted in the public interest. (49 U.S.C. § 44701(f).)

For these reasons, and for the other reasons set forth

above, the Judgment of the United States Court of Appeals

for the District of Columbia Circuit should be reversed. The

petitioners should be granted the exemptions requested.

Alternatively, the case should be remanded so that their

requests for exemption may be decided individually on the

merits, and not subject to an arbitrary policy of denial.

Respectfully submitted,

ANTHONY P. X. BOTHWELL

Counsel of Record

Law Offices of Anthony P. X. Bothwell

350 Bay Street, Suite 100PMB314

San Francisco, CA 94133-1947

Tel. (415) 370-9571

Counsel for Petitioners

TABLE OF CONTENTS

Judgment of

The United States Court of Appeals

for the District of Columbia Circuit

entered September 24, 2004 ..........::ssssesseseessnseneeneenneens la

Denial of Exemption of

the Federal Aviation Administration

entered October 6, 2003...........ssssscssssesserseeseeeeseeseesees 3a

Order of

The United States Court of Appeals

for the District of Columbia Circuit

Re: Denying Petitioners’ Petition

for Rehearing En Banc

entered December 14, 2004 ..........:scssssssssssssnsnenenenenens 28a

Petitioners’ Amended Petition for Rehearing

With Petition for Rehearing En Banc in

The United States Court of Appeals

for the District of Columbia Circuit

entered November 18, 2004 .........-s:ssssssessssesessnseneneees 29a

Final Brief for Petitioners in

The United States Court of Appeals

for the District of Columbia Circuit

entered Jume 14, 2004 ........eccsssessenenesesrsnsnesenerenensensnes 56a

Final Reply Brief for Petitioners in

The United States Court of Appeals

for the District of Columbia Circuit

entered Jume 14, 2004 ........ccecsseseeneneseereeserenserensnennes 106a

iia

Final Brief for the Respondent in

The United States Court of Appeals

for the District of Columbia Circuit

entered June 8, 2004.......sseceseseceessseeeenssestensenessnenenes 129a

Amicus Curiae Southwest Airlines Pilots

Association’s Brief Supporting Petitioners in

The United States Court of Appeals

for the District of Columbia Circuit

entered March 29, 2004.........scsscssesseesesseseeessesensees 194a

Petition to the Federal Aviation Administration,

With Amendments,

entered August 20, 2003.........:ssssssessssseseersnseneesereess 207a

la

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-1386 September Term, 2004

Dallas E. Butler et al.,

Petitioners,

Vv.

Federal Aviation Administration,

Respondent.

On Petition for Review of an Order of

the Federal Aviation Administration.

Before: EDWARDS, HENDERSON and GARLAND,

Circuit Judges.

[JUDGMENT

(ENTERED: SEPTEMBER 24, 2004]

This cause was considered on the record from the

Federal Aviation Administration (FAA) and on the briefs by

counsel. The petitioners, who are licensed and certified

pilots over age 60, seek review of an FAA order denying

their applications for exemption from the “Age 60 Rule,” 14

C.E.R. § 121.383(c), which prohibits a pilot from serving on a

commercial airplane after his 60th birthday. Although the

petitioners purport to seek an “exemption,” the petition

lacks specific information to justify exempting the

individual petitioners as required under the FAA

regulations. See 14 CF.R. § 11.61 (“You must include the

following information in your petition for an

exemption...The reasons why granting the exemption

would not adversely affect safety, or how the exemption

would provide a level of safety at least equal to that

2a

provided by the rule from which you seek the

exemption....”). It is plain from the petitioners’ arguments

before the agency and before the court that they initiated

this proceeding in order to challenge directly the validity of

the rule itself, which is properly effected only through a

petition for rulemaking rather than a petition for exemption.

See 14 C.F.R. §§ 11.61, 11.73; see also Yetman v. Garvey, 261

F.3d 664, 668-69 (7th Cir. 2001); Keating v. FAA, 610 F.2d 611,

612 (9th Cir. 1979); Rombough v. FAA, 594 F.2d 893, 897 (2nd

Cir. 1979). Accordingly, it is

ORDERED that the petition for review is denied.

Pursuant to D.C. Circuit Rule 36, this disposition will

not be published. The Clerk is directed to withhold issuance

of the mandate herein until seven days after resolution of

any timely petition for rehearing or rehearing en banc. See

Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:

/s/

Mark J. Langer, Clerk

3a

Exemption No. 8141

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

In the matter of the petition of

BUTLER, DALLAS E. ET AL

for an exemption from § 121.383(c)

of Title 14, Code of

Federal Regulations

Regulatory Docket No. FAA-2002-12501

DENIAL OF EXEMPTION

[ENTERED: OCTOBER 6, 2003]

By petition received on June 13, 2002, Mr. Anthony

P. X. Bothwell, Esquire, Attorney for Petitioners, 100 First

Street, Suite 100 PMB241, San Francisco, California 94105-

2632, petitioned the Federal Aviation Administration (FAA)

on behalf of Dallas E. Butler et al for an exemption from §

121.383(c) of Title 14, Code of Federal Regulations (14 CFR).

The proposed exemption, if granted, would permit the

petitioners to act as pilots in operations conducted under

part 121 after reaching their 60t birthdays.

The petitioners request relief from the following regulation:

Section 121.383(c) prescribes, in pertinent part, that no

person may serve as a pilot on an airplane engaged in

operations under this part if that person has reached his 60%

birthday.

da

The petitioners support their request with the following

information:

The petitioners claim the Age 60 rule has no medical or

safety basis, instead, petitioners assert the Age 60 rule was

originally adopted as an act of favoritism and continues to

be supported by the FAA as an economic favor to the airline

industry. Petitioners allege the FAA has intentionally

misrepresented the justification for the Age 60 rule to the

public, Congress, Federal courts, and other executive

agencies. Petitioners claim they are entitled to be exempt

fromthe Age 60 rule because the rule has no medical or

safety basis and, therefore, granting them an exemption to

the rule will not adversely affect safety.

Petitioners allege prior to the issuance of the Age 60 rule in

1959 there was no medical or safety basis for the rule.

Petitioners allege the true purpose for the Age 60 rule was a

personal favor between FAA Administrator Elwood

Quesada and American Airlines Chairman C.R. Smith.

Petitioners claim that the Age 60 rule was adopted because

American Airlines Chairman Smith contacted Administrator

Quesada to request the FAA adopt a mandatory retirement

tule to settle an ongoing pilot strike.

Petitioners assert the FAA continues to enforce the Age 60

tule so that airline companies will not be burdened with any

administrative costs that may be associated with having to

change retirement policies currently based on the age of 60.

Petitioners cite correspondence between a former Federal

Air Surgeon and a former FAA employee and a closed

meeting between a congressman and FAA officials as

evidence of this economic conspiracy.

Petitioners allege the FAA intentionally insulated itself from

independent administrative review by adopting the Age 60

5a

rule as an operational restriction under section 601 of the

Federal Aviation Act of 1958 (now codified at 49 U.S.C. §

44701). Petitioners allege the FAA purposefully did not

locate the Age 60 rule under section 602 of the 1958 FAA Act

(now principally codified at 49 U.S.C. § 44703) as a licensing

restriction that would be reviewed by the National

Transportation Safety Board.

Among the many allegations leveled by the petitioners

against the FAA are the following concerning studies in

support of the Age 60 rule: the FAA continues to

intentionally and purposefully fabricate and disseminate

false and misleading data to support the rule and the FAA

distorted data and endorsed and promoted flawed studies

to support the rule; the FAA has ignored expert panel

reports that disprove medical arguments supporting the

rule; the FAA has refused to collect data, make data

available that has been collected, or analyze data that has

been collected that would undermine the Age 60 rule.

Petitioners contend the FAA's reliance on ore particular

allegedly flawed study in support of the Age 60 rule, the

Flight Time Study, conducted by Richard Golaszewski,

constitutes intentional misrepresentation by the FAA to

Congress and the U.S. Court of Appeals for the Seventh

Circuit. Finally, petitioners allege the U.S. Senate

Committee on Appropriations ordered the FAA to conduct

a study in a 2000 appropriations bill. The petitioners allege

that there is "evidence of the FAA's intent - perhaps even its

complicity with the [Senate Appropriations] Committee - to

mislead."!

Petitioners allege pilot incapacitation poses no threat to

safety in air operations and therefore there is no justification

for the FAA "no exemptions" policy regarding the Age 60

rule. Petitioners claim two systems that prevent accidents

when there is an incapacitation are the manual lock

1 See Petition at 35.

6a

shoulder harness and the two-communication rule.

According to petitioners, even though pilots have died on

the job, not a single air carrier accident has been reported in

the literature as caused by pilot incapacitation since the two-

communication rule and the manual lock shoulder harness

were adopted by industry in the early 1970s. Petitioners also

cited studies which compute the risk of pilot cardiovascular

failure at 1 in 20.8 million flight hours and a risk of accident

in multiple crew air carrier flight operations to be 1 in 8.3

billion flight hours. Petitioners allege the FAA has ignored

this factual record which proves that pilot incapacitation in

air carrier operations poses no risk to safety.

Petitioners allege when the FAA considers granting

exemptions to the Age 60 rule, it does not consider that

performance and medical checks eliminate at-risk pilots.

Petitioners claim one such performance check is the multiple

crew system where a back-up pilot can fly the aircraft if a

PIC becomes incapacitated. Petitioners contend the FAA

recognized the effectiveness of multiple or back-up pilots in

airline operations during congressional testimony and ina

1969 study co-authored by former Federal Air Surgeon P.V.

Siegel.

In addition, petitioners claim the FAA has never denied its

ability to diagnose illness in older individuals and to be able

to identify pilots that are unfit for duty. Petitioners claim the

FAA has also recognized the superior health and fitness of

airline pilots as compared to the general U.S. population.

Petitioners also assert that the FAA did not enforce the Age

60 rule against foreign pilots flying into the United States

until 15 years after the International Civil Aviation

Organization adopted the Age 60 rule. Petitioners claim the

granting of these waivers is additional evidence of the

FAA's true purpose of the Age 60 rule, airline scheduling

and economics. ;

ee o. ~~

7a

Petitioners also claim that because the Age 60 rule has no

safety basis, the rule is inherently discriminatory and,

therefore, violates the Age Discrimination in Employment

Act (ADEA). Petitioners claim this argument is distinct from

past claims of age discrimination because past claims did

not argue the rule has no safety basis, past claims argued

even if the rule was based on safety, it violated the ADEA.

Petitioners claim the FAA's rigid enforcement of the Age 60

rule forces airlines to aggressively recruit military pilots,

thus creating a shortage of military pilots. Relaxing the

FAA's no-exemptions policy will help the military retain

combat-ready pilots, which is a priority, particularly in

times of national emergency.

On September 10, 2002, the FAA published a summary of

the petition in the Federal Register seeking public comment

for a period of 2 weeks. On October 2, 2002, a more detailed

summary of the petition was published in the Federal

Register and the comment period was extended to October

14, 2002. The FAA also received correspondence from Mr.

Bothwell concerning a number of administrative matters,

including a dispute as to the second summary of the petition

published on October 2, 2002. Mr. Bothwell was concerned

that the summary of the petition that he provided was not

published in the Federal Register.

The second summary of the petition published in the

Federal Register on October 2, 2002, more accurately

described the petition than the summary Mr. Bothwell

provided. The published summary paraphrased and quoted

from the petition that Mr. Bothwell filed. Mr. Bothwell has

noi demonstrated how not using his summary has in any

way affected public notice of the petition. In addition, the

entire petition filed, along with every comment submitted,

has been and is available to the public online. The Web

address for the online version of the petition was included

8a

in both notices in the Federal Register. The FAA received

over 6,700 comments. Finally, the FAA is not required to

publish the summary of a petition for exemption submitted

by a petitioner or his or her representative, pursuant to 14

C.F.R. § 11.81(f). Mr. Bothwell's summary of the petition was

conclusory and it was the FAA's position that publishing his

summary could have misled the public to believe the FAA

was admitting to the allegations in the petition.

Summary of Comments:

The overwhelming majority of commenters favor retaining

the current Age 60 rule. Safety and medical issues were

most often cited as the reasons for retention of the current

rule. Numerous commenters stated there is medical

information to support the Age 60 rule and before any

change is considered, there needs to be extensive medical

study in this area to prove that a change is warranted. Safety

concerns of commenters included concern over irregular

hours and long hours that take a toll on any pilot and many

younger pilots and check airman stated they observed

fatigue and a deterioration of mental skills and snap

judgment in pilots close to age 60. In addition, some

commenters stated since safety is the paramount

consideration and the public does not choose which pilot

flies their aircraft, the FAA should keep the Age 60 rule for

the benefit of the general public. Some commenters advised

that many pilots encounter serious medical problems soon

after retirement due to airline pilot job stresses and evidence

of this is in the sick leave records of flight engineers over the

age of 60.

The vast majority of comments received for this petition for

exemption did not address the medical condition of these

ten petitioners. Instead they commented on whether the

FAA should keep, remove, or withdraw the Age 60 rule.

Comments were solicited to provide the public an

9a

opportunity to comment on the petition and to receive

information as to whether these ten individual petitioners

should be granted an exemption from 14 CFR § 121.383(c).

Many commenters stated they either support or oppose the

FAA granting of an exemption to the ten petitioners.

However, few commenters provided specific substantive

information concerning the ten petitioners to assist the FAA

in deciding if these ten petitioners should be granted an

exemption to the Age 60 rule.

Many commenters stated changing the rule to bring back

older pilots would not make economic sense given the

financial troubles of airlines. Some commenters stated the

public is focused on the safety of flight after the events of

September 11, 2001, and permitting older pilots to fly in Part

121 operations would give the public one less reason to fly.

Many commenters stated changing the Age 60 rule would

disrupt the retirement plans of many airline pilots that are

based on the age of 60.

Many commenters do not believe the Age 60 rule is

discriminatory, they believe safety overrides any

discrimination. Some commenters also pointed out that

there are minimum age requirements to become an airline

pilot and that the FAA must choose some retirement age

and age 60 is as good as any other.

A vast number of pilots commented that there is no shortage

of pilots given that many thousands of pilots have been

furloughed since the events of September 11, 2001. Many

furloughed pilots pleaded that the FAA not change the Age

60 rule, because increasing the age above 60 would delay

any chance they have at getting back their airline pilot job.

Many commenters stated that the vast majority of pilots and

airlines are in favor of the Age 60 rule. Commenters also

10a

stated that petitions such as the one considered here

originate from a vocal minority within the pilot community

that understood the retirement system when they were

hired by an airline but failed to plan their retirement

accordingly and now seek to change the rule for the

minority's financial gain, not for safety.

Commenters that support changing the Age 60 rule most

often cited economics as the basis for the Age 60 rule. Some

commenters stated the Age 60 rule is based on economics as

a favor to the airlines, terminating the most senior and

expensive pilot salaries. Some commenters stated they or

pilots they know are experiencing financial difficulty

because of the rule and they should be able to work as a

pilot in Part 121 operations to the traditional social security

retirement age of 65.

Commenters stated airline flights are less safe without older

pilots because older pilots are more experienced and are

sharper than younger, less safe pilots. Also, some

commenters argue medical checks can weed out unsafe

pilots. Finally, some commenters stated safety cannot be the

basis of the rule because many other countries permit airline

pilots to fly beyond age 60.

Some commenters argued the Age 60 rule is age

discrimination. Some commenters stated the Age 60 rule

violates U.S. age discrimination laws and it is ironic that the

Government that adopts age discrimination laws also

practices such discrimination.

Some commenters who are pilots argued that the Age 60

rule should be abolished because there is currently a

shortage of pilots in the airline industry, including a

shortage of pilots in certain regions.

lla

The Southwest Airlines Pilots' Association (SWAPA)

commented that the petition for exemption should be

granted because the Age 60 rule is discriminatory and

refuted by medical research. SWAPA also commented that

there is no credible evidence to support the Age 60 rule and

physicals and simulator checks are adequate to screen at-

risk pilots.

The Air Line Pilots Association, International (ALPA)

commented that the petition should be summarily denied

because the petition does not meet the requirements the

FAA adopted in the 1995 Disposition of Comments. ALPA

commented that the Age 60 rule has been thoroughly

studied, and repeatedly reaffirmed by the FAA and Federal

Courts of Appeals. ALPA also commented that the petition

offers no basis for reconsidering the Age rule, that each

point in the petition has been addressed and rejected on

repeated occasions. In regard to the origin of the Age 60

rule, ALPA commented that the FAA has reviewed the rule

three times, finding each time the rule is well-founded, and

the FAA's findings were upheld each time by a Federal

Court of Appeals. ALPA commented that the petition offers

no evidence to support the claim that the Age 60 rule is

maintained as a favor to airline executives. ALPA

commented that the FAA has devoted a substantial amount

of time and resources to the Age 60 rule, and the FAA has

conducted a significant amount of research concerning the

Age 60 rule. ALPA commented that there is no evidence

that authors of accident studies intentionally skewed results

to support the Age 60 rule and that two appellate courts

rejected criticisms of FAA use of the Golaszewski study.

ALPA commented that the petition's allegation that the 1981

National Institute on Aging Panel Report disproved the

medical justification is not true, the report recommended

retaining the Age 60 rule and extending the rule to Part 135

operations. ALPA commented that sudden pilot

incapacitation and subtle cognitive impairment are topics

12a

the FAA have found to be a safety risk and ALPA agrees

with the agency's conclusions. Also, ALPA stated that

performance and medical checks do not adequately screen

at-risk pilots as the petition argues. ALPA commented that

the FAA found that the Age 60 rule does not violate the Age

Discrimination in Employment Act and the United States

Court of Appeals for the District of Columbia Circuit upheld

that decision. ALPA also commented that there currently is

no shortage of pilots for Part 121 operations, in fact as of

September 30, 2002, 5,000 pilots represented by ALPA were

furloughed.

The Professional Pilots Federation commented that the

origin of the Age 60 rule stems from ex parte contacts

between a former administrator and an airline chief

executive officer. They state there is no independent study

that they are aware of that states some retirement age is

necessary.

Wright State University commented that more than three

dozen countries allow airline pilots to fly past Age 60, which

they state contributes to air safety. The university also states

that life expectancy in the United States has increased since

the rule was enacted and, therefore, the public and pilots are

living longer.

The Federal Education Association, Inc. commented that it

could see no basis for requiring retirement at the age of 60. It

also commented that pilots over the age of 60 are permitted

to fly into the U.S. while United States pilots cannot.

The American Association of Retired Persons commented

that the FAA continues to adhere to a rule that was adopted

in 1959 to insure the highest level of safety despite over 40

years of medical and technological developments and a

growing trend among foreign aviation authorities to allow

pilots over age 60 to fly. It also commented that the FAA

13a

has yet to attempt to obtain medical or performance data on

older pilots while claiming such data is needed before any

change to the rule can be considered.

Finally, hundreds of commenters just simply stated they are

for or against a change to the rule, with no explanation of

why the rule should remain or be changed.

A brief history of the Age 60 rule: —

The "Age 60 Rule" was adopted by the FAA in 1959 (24 FR

9767, December 5, 1959). The history and basis of the rule

are set out in detail in a Disposition of comments and notice

of agency decisions, 60 FR 65977 (December 20, 1995),

corrected, 61 FR 24533 (May 15, 1996). Since adoption, the

basis of the rule has been upheld in at least three cases, see

PPF v. FAA, 118 F.3d 758 (D.C. Cir. 1997); O’Donnel v.

Shaffer, 491 F.2d 59 (D.C. Cir. 1974); Air Line Pilots

Association International v. Quesada, 276 F.2d 892 (2nd Cir.

1960); and exemption petitions have been unsuccessful in at

least eight cases, see Yetman v. Garvey, 261 F.3d 664 (7th Cir. |

2001); PPF v. FAA, 118 F.3d 758 (D.C. Cir. 1997); Baker v.

FAA, 917 F.2d 318 (7th Cir. 1990); Aman v. FAA, 856 F.2d

946 (7th Cir. 1988); Gray v. FAA, 594 F.2d 793 (10th Cir.

1979); Rombough v. FAA, 594 F.2d 893 (2nd Cir. 1979);

Keating v. FAA, 610 F.2d 611 (9th Cir. 1979); Starr v. FAA,

989 F.2d 307 (7th Cir. 1978).

Congress has also had the opportunity to reevaluate the Age

60 rule during the past 43 years. For example, in February of

2001, a bill to increase the Age 60 rule to age 65 was referred

to the House Subcommittee on Aviation.? In March of 2001,

a bill to increase the Age 60 rule to age 63 was drafted to be

reported by the Senate Committee on Commerce, Science,

and Transportation. Neither of those two bills was enacted.

2 See H.R. 448, 107% Congress.

3 See S.361, 107% Congress.

l4a

In a 1997 appropriations bill, the National Transportation

Safety Board was appropriated a specific sum of money to

conduct a study of the Age 60 rule. When the bill was finally

passed by Congress, however, an amendment was added

prohibiting the NTSB from spending any appropriated

money to study the rule.‘

Also, in the 1995 Disposition of comments, the FAA decided

to deny future Age 60 rule petitions for exemptions without

first publishing the petition for comment if the petition does

not contain a proposed technique to assess an individual

pilot's abilities and risks of subtle and sudden

incapacitation.’ This process was upheld by the United

States Court of Appeals for the District of Columbia Circuit.*

While the current petition does not contain a new

technique to assess an individual pilot's ability and risk of

incapacitation, the petition presents a unique, albeit not

new, challenge to the Age 60 rule, in the form of a petition

for exemption, on which the FAA gave the public an

opportunity to comment.

Petition for Exemption Standards:

Factors that the FAA considers when evaluating a petition

for exemption include whether the petitioner can show why

granting the exemption will be in the public interest, how

the exemption would benefit the public as a whole, and why

granting the exemption will not adversely affect safety, or

* See Department of Transportation and Related Agencies Appropriations

Bill, p177, Report 104-631, June 19, 1997; Department of Transportation

and Related Agencies Appropriations Bill, p179, Report 104-325, July 19,

1996.

5 See 60 FR 65980.

® See Yetman v. Garvey, 261 F.3d 664, 679 (7th Cir. 2001).

15a

how the exemption will provide a level of safety at least

equal to that provided by the rule from which the petitioner

seeks an exemption.” Moreover, Congress specified in

subpart III of Part A to Subtitle VII to Title 49 of the US.

Code that the Administrator may grant exemptions from

FAA regulations if such exemptions are in the "public

interest." See 49 U.S.C. § 44701(f). In setting forth criteria for

the Administrator to carry out her duties under Subpart III

of Part A to Subtitle VII of Title 49 of the U.S. Code,

Congress required the consideration of several things to be

in the "public interest." 49 U.S.C. § 40101(d). But of the

several items listed for consideration of what the public

interest is in any particular matter, Congress stated that "(1)

assigning, maintaining, and enhancing safety and security

[are]..the highest priorities in air commerce." 49 U.S.C. §

40101(d)(1).

Thus, although there may be many things that are arguably

in the "public interest," the Administrator is statutorily

required to consider in any rulemaking action (including

petitions for exemption from rules) the highest priority in

air commerce is to assign, maintain, and enhance safety and

security.

Petitioners have not met the standards for an exemption to

the Age 60 rule under 49 U.S.C. §§ 40101(d)(1) and 44701(f)

and 14 CFR § 11.81(d) and (e). Petitioners attack the basis of

the rule instead of providing medical evidence as to each

airman, scientific studies, or new scientific protocols that

would justify an exemption. As the United States Court of

Appeals for the Seventh Circuit stated in a case involving a

petition for exemption, that included many of the same

allegations attacking the Age 60 rule, the validity of the Age

? See 14 C.F.R. § 11.81(d) and 11.81(e).

l6a

60 Rule has already been affirmed.8 In a petition for

exemption, the petitioners bear the burden of showing that

circumstances justify exemptions from the Age 60 rule, a

heavy burden where daunting issues of public safety are

implicated.?

Petitioners fail to present any facts that would justify an

exemption to the Age 60 rule for these ten individuals. The

only facts given concerning these petitioners are their

names, birth dates, and addresses. Petitioners present no

facts that uniquely qualify them for an exemption to the Age

60 rule as opposed to many similarly situated pilots.

Without further medical information regarding these

petitioners and without a medical protocol that can reliably

predict which over age 60 pilot will experience detrimental

age decrements, the petitioners have failed to present any

evidence upon which an exemption might legitimately be

based.

Instead of presenting information that would support an

exemption from the rule, the petitioners challenge the basis

of the Age 60 rule and the FAA's conduct in defending the

rule. Such allegations do not meet the requirements for a

petition for exemption. These allegations do not meet the

requirements for a petition for rulemaking. The FAA is

responding to the specious allegations petitioners raise

regarding the FAA's conduct over the past 43 years

defending the Age 60 rule.

The petition is denied because the petitioners failed to

provide any information that supports an exemption from

the rule.

8 Yetman, at 668-669; See also, ALPA v. Quesda, 276 F.2d 892, 898. The

rule was first upheld when the Air Line Pilots Association claimed

Administrator Quesada had no reasonable basis for exercising his

judgment, the court held there is considerable support for the

Administrator's action. See id.

9 Id. at 669.

17a

FAA Response to Petitioners Allegations:

Petitioners allege that the agency has participated in an

economic conspiracy to justify the Age 60 rule. These

allegations are without merit. The allegations petitioners

present in this petition for exemption are not factually

based; instead they are based on far-reaching theories, and

are completely without merit. The petitioners present no

significant new information that has not been presented in

prior petitions for exemptions or petitions for rulemakings.

In each proceeding, where these same arguments were

raised, the FAA denied the petition and various U.S. Courts

of Appeals upheld the FAA's denials. The Age 60 rule and

the justifications for the rule have been subjected to repeated

FAA review and judicial review over the entire 43-year

history of the rule. Congress has had the opportunity to

revisit the Age 60 rule. In addition, the FAA, other Federal

agencies, and private institutions have conducted numerous

studies to examine the Age 60 rule.

Allegations of favoritism in the adoption of the Age 60 rule

were raised in earlier proceedings before the FAA and

challenges to FAA determinations in three cases before two

United States Courts of Appeal.!° The basis of this assertion

is a letter from C.R. Smith, president of American Airlines

when the Age 60 rule was adopted in 1959, to Administrator

Elwood Quesada, suggesting there must be some suitable

10 See Brief of Petitioners, page 23, United States Court of Appeals for the

Seventh Circuit, Yetman v. Garvey, February 20, 2001. (Yetman Brief);

Brief for Petitioners, page 4, United States Court of Appeals for the

District of Columbia Circuit, Professional Pilots Federation, et. al., May

22, 1996. (PPF Brief); In the matter of Professional Pilots Federation, Jerry

|. Fielding, and James C. Rosater, Petition for Writ of Mandamus, pages 7-

8, United States Court of Appeals for the Seventh Circuit, November 25,

1994 (PPF Writ of Mandamus); Yetman Petition for Exemption, Docket

no. FAA 2000-8016, p52-53 (Yetman petition); Comments of the

Professional Pilots Federation on Proposed Rulemaking as it Relates to

Age Limitations for Pilots, pages 2-3, Docket no. FAA-1995-28154-1531;

Comment of Bert M. Yetman, Docket no. FAA-1995-27264.

18a

age for mandatory airline pilot retirement." This and other

documents purportedly supporting this allegation have

been submitted to the FAA and to U.S. Courts of Appeals in

at least two different petitions for exemption from the age 60

rule.12 In response, the FAA denied allegations of

favoritism!’ and U.S. Courts of Appeals have refused to

reconsider the validity of the Age 60 rule, upholding the

rule in several cases for over 40 years.14

The FAA denies allegations of favoritism in regard to either

the adoption of the Age 60 rule in 1959 or during its

longstanding defense of the rule. At the time the rule was

adopted, the FAA _ followed standard rulemaking

procedures by giving the public an opportunity to comment

on the proposed rule. Claims by petitioners that the Age 60

rule was adopted as a personal favor to the president of an

airline company are completely without merit.

There was nothing inappropriate in adopting the Age 60

rule as an operational restriction under section 601 of the

1958 Act as opposed to an airman certification provision

under section 602 of the Act. There are many operational

11 See Petition for Exemption, Dallas Butler et. al., Exhibit C, docket

number FAA-2002-12501-1

12 See Yetman Brief Joint Appendix 87, 88; PPF Brief Joint Appendix 618.

13 See Disposition of comments and notice of agency decisions, 60 FR

65984.

14 See Yetman v. Garvey, 261 F.3d 664, 668-9 (7 Cir. 2001) stating the

court is not reexamining the validity of the Age 60 Rule, as it was already

affirmed in Starr v. FAA; PPF v. FAA, 118 F.3d 758, 770 finding the FAA's

decision not to convene rulemaking to revise the Age 60 rule was not

arbitrary and capricious; Aman v. FAA, 856 F.2d 946, 954 (7t Cir. 1988)

stating that petitioners have not produced sufficient evidence of ex parte

communications to meet the heavy burden required to overturn an

agency action; Starr v. FAA, 589 F.2d 307, 309 (7 Cir. 1978) stating the

court will not reexamine the validity of the Age 60 rule, as the rule has

already been affirmed; O’Donnel v. Shaffer, 491 F.2d 59, 62-63 (D.C. cir.

1974); ALPA v. Quesada, 276 F.2d 892, 898 (24 Cir. 1960).

restrictions and requirements in part 121 that do not have a

corresponding airman certification provision. That is

because the level of safety required for part 121 operators is

higher than other operations, and, thus, the tolerance for

risk is lower. Although pilots who are 60 years of age or

older may operate under other parts of the regulations (e.g.

parts 91 and 135) such operations do not have to meet the

more demanding safety requirements imposed on part 121

operators. The Age 60 rule was adopted as an operational

rule because Age 60 carves out a limited restriction

prohibiting airman from operating aircraft under part 121.

An airman certification restriction would be an overly broad

measure for this rule and would require revoking and

reissuing an airman's certificate at age 60, a matter that is

more appropriately handled as an operational restriction.

The petitioners' allegations that the FAA has refused to

collect data concerning the Age 60 rule is simply untrue. In

addition, the FAA does not restrict the type of data it

collects concerning the Age 60 rule. The FAA collects data

neutrally, regardless of whether some claim certain data

may support or undermine this rule. In the latest petition for

exemption before the U.S. Court of Appeals for the Seventh

Circuit, the court found "We find the FAA, in accordance

with our directive [from a prior petition for exemption] has

kept abreast of and considered new studies and medical

technology."!5

In fact, the FAA has posted four reports concerning Age 60

on its website, at the address: http://www.cami.jccbi.gov/

aam-400A/AGC60/60_index.html. These reports were

created in part in response to the U.S. Senate Committee on

Appropriations order to study the Age 60 rule in a year 2000

appropriations bill. The first report is an extensive

annotated bibliography of the Age 60 rule debate covering

the years 1990 to 1999. The second report is a re-analysis of a

15 Yetman v. Garvey, 261 F.3d at 678.

20a

1999 Chicago Tribune Report that analyzed accident and

incidents data from 1990 to 1999. The third report is an

analysis of professional air transport pilot accident rates by

age for the years 1988 to 1997. The fourth report is an

analysis of professional ATP and commercial pilot accident

rates by age for the years 1988 to 1997. Petitioners criticize

the method of analysis used in the fourth report, however,

the FAA conducted the study pursuant to the direction of

the Appropriations Committee and the results of that study

showed an increasing risk for pilots over the age of 60.

Petitioners also claim that the FAA _ intentionally

misrepresented information concerning studies (including

the Flight Time Study) that support the Age 60, this

allegation is completely false. This same argument has been

raised in a petition for exemption’® and raised in two

challenges of FAA exemption denials before the U.S. Court

of Appeals for the Seventh Circuit.!” In both cases, the

Seventh Circuit recognized that the Flight Time Study was

not perfect, but ultimately upheld the FAA's decision to

deny petitions for exemption and upheld the use of the

16 See Yetman Petition for Exemption, Docket No. FAA-2000-8016 at page

3, stating "the FAA has pursued a course of deception for many years in

order to retain a rule that cannot be justified medically or operationally.

As one example, FAA sought to deceive the Court in Baker v. FAA, 917

F.2d 3 18 (7th Cir. 1990), by claiming in that litigation that the "Flight

Time Study" justified the denial of exemptions, when it knew at that time

that the study was hopelessly flawed and did not support any conclusion.

Under recognized standards of administrative law, the exemptions

should be granted." See also Id. at 40.

17 See Yetman Brief for Petitioners pages 31, 32 stating "...FAA's Kenneth

Chin has revealed that FAA knew from the start that the Flight Time

Study had 'major data deficiencies' and could not be used 'to support any

position’ (J.A. 15), proving that it had been foisted upon the Court in a

duplicitous agency effort to conceal its fatal defects (see J.A. 15, 359).";

Baker Brief for Petitioners pages 9-17 stating the FAA's reliance on the

Flight Time Study to support the Age 60 rule is fatally flawed, and if the

flaw is removed from the study, the study supports granting a petition for

exemption.

2la

Flight Time Study as substantial evidence supporting the

validity of the Age 60 rule.18

In the latest case upholding of an FAA petition for

exemption denial the court states:

Petitioners have failed to explain how the

FAA's awareness of the deficiencies in the

Flight Time Study —incidentally, a fact that

we were aware of in Baker—impacts our

substantial evidence inquiry. Yetman at 677

(emphasis in original).

The issue of whether pilot incapacitation poses a risk to air

carrier safely has also been repeatedly raised by petitioners!

and examined by the FAA in prior petitions. In prior

petitions concerning Age 60, the FAA determined that both

sudden and subtle incapacitation create risks to air safety

and experience of older pilots do not compensate for lost

faculties. Recently, the court in Yetman agreed with the

FAA, finding that the petitioners in that case did not

provide, as was their burden, strong evidence that the

added experience of pilots 60 and over clearly neutralizes

the danger of sudden incapacitation and deterioration of

piloting skills associated with the aging process.2!

Petitioners evidence in the present petition is no less than a

decade old, once again providing no new evidence to

support their claims and certainly not meeting the standard

described by the court in Yetman, as requiring strong

evidence to support their claims.

18 See Yetman, 261 F.3d at 676, 677; Baker, 917 F.2d at 322.

'9 See Yetman petition for exemption pp 19, 27 (65 FR 59496); PPF petition

for rulemaking p13 (58 FR 46585).

20 See Yetman denial pp 8-9, 19-20; PPF denial 60 FR 65983.

21 See Yetman at 678.

22a

The purpose of requiring safety systems and procedures

such as multiple pilot crews and the Age 60 rule is to

provide redundant safety measures, so that if one safety

mechanism fails another is in place. However, some risk

exists even with what appear to be redundant safety

mechanisms. Thus, although part 121 operations require the

presence of at least two pilots, the safety benefit of having

two pilots would be diminished if one of those pilots were

age 60 or older. That's because there is a higher chance that

the age 60 or older pilot will suffer an incapacitating event,

including an insidious incapacitating event (not noticeable

to other crewmembers) or might have a decrement in

cognitive functioning or reaction times that would not be

timely caught and corrected by the other pilot.

The petitioners claim that the FAA does not consider

performance and medical checks to eliminate at-risk pilots

when examining a petition for exemption. This claim is

without merit. The FAA considered medical testing in

recent petitions and found that the medical tests and

protocols did not provide the same level of safety as the Age

60 rule and this finding was upheld by court decisions.” For

instance, the Yetman petition for exemption proposed a

medical protocol, albeit a protocol substantially similar to

past protocols submitted to the FAA, that in the petitioners

view could identify pilots medically qualified to operate

airline pilot duties beyond age 60.” In a detailed analysis of

petitioner's protocol, the FAA found the protocol did not

provide a level of safety equal to the level of safety under

the Age 60 rule In addition, the FAA found there

continues to be cognitive disorders for which there are no

diagnostic tools on which we can rely. Similarly, the FAA

2 See Yetman at 675-6; Yetman denial p17-18; Aman at 954; Aman denial

p13;

23 See Yetman petition p2.

24 See Yetman denial p18.

23a

found the medical protocol submitted in the Aman and

Baker petitions to be inadequate. The courts in each case

upheld the FAA decision.”

In the current petition, no medical protocol whatsoever was

submitted; instead petitioners claim the FAA can diagnose

and eliminate at-risk pilots through current first-class

airmen medical examinations. However, the FAA and

courts have held that first-class airmen medical

examinations and any medical protocol so far submitted to

the FAA are inadequate to screen at-risk-pilots and do not

provide the same level of safety as the Age 60 rule. The

courts have already spoken as to the FAA's analysis of

protocols and the courts disagree with the petitioners.””

Petitioners claim that use of simulators can screen at-risk

pilots has also been raised in recent petitions for

exemption’ and addressed by the FAA in denying those

petitions.? As discussed in the FAA's denial of the Yetman

petition:

-..periodic proficiency and competency

checks are intended to detect a pilot's

performance deficiency and to correct those

deficiencies before the pilot is returned to

flight operations. These checks only verify

the state of a pilot's performance at the time

of the checks. They are not useful for

detection of early or subclinical cognitive

defects that may subtly degrade performance

or which, in time, may progress to risks for

5 See Aman denial p13; Baker denial p32.

26 See Yetman at 675-6;Aman at 954

27 See id.

28 See Yetman petition at pp 2, 22, 29; Aman petition at pp 3, 31-32.

29 See Yetman denial at p20; Aman denial at p13-14.

24a

errors in judgment or other actions that may

jeopardize safety. The checks do not predict

whether an individual pilot's performance

will degrade at any time in the future with

aging.

Yetman denial p20.

The FAA made the same finding in the 1995 Disposition of

Comments™ and the U.S. Courts of Appeals for the District

of Columbia Circuit upheld the FAA's determination:

We conclude that the FAA afforded adequate

consideration to the alternative of

individualized testing. The FAA explained

that even state-of-the-art testing cannot

screen out potentially risky pilots.

PPE v. FAA 118 F.3d at 674.

Nothing has been presented to the FAA in this petition

which warrants the FAA altering its determination with

regard to the use of simulators to screen at-risk pilots;

simulators are a beneficial tool for testing a person's present

piloting ability and identifying any current deficiencies in

that person's piloting skills. However, the FAA found no

evidence that simulators are an adequate screen to identify

future pilot deficiencies including subtle insidious cognitive

deterioration. Therefore, the use of a simulator as a medical

screen would not be a thoroughly effective tool to identify

current medical problems with an airman and would not be

an effective tool to predict which older pilots will shortly

manifest medical problems in flight. There is no dispute that

older people have higher incidences of medical problems in

general and higher incidences of insidious/ subtle cognitive

deficits than younger people.

30 See 1995 Disposition of Comments at 60 FR 65983-65984.

Petitioners also claim the FAA did not enforce the Age 60

rule against foreign. pilots flying into the United States;

however, under FAA regulations there is no Age 60 rule in

Part 129, the part that governs operations of foreign air

carriers and foreign operators of U.S. registered aircraft.

While the ICAO standard was not enforced at its inception,

the policy at the time recognized the international

ramifications of insisting on compliance with international

operating requirements. In any event, the United States

worked through the difficult complexities and has for quite

some time now insisted on Age 60 compliance by part 129

operators of "large" aircraft in the United States.

Petitioners once again raise a claim that the Age 60 rule

violates the ADEA, even though the FAA has successfully

defended the rule on that basis twice, having one U.S.

Courts of Appeals hold that the ADEA does not apply to the

FAA and another court recognize that holding.>! Petitioners

attempt to distinguish this claim from past claims by

arguing that the Age 60 rule has no safety basis and

therefore is inherently discriminatory. That claim is

inconsistent with case law and findings made in cases where

*! See PPF denial at 60 FR at 65985 stating "The FAA agrees that

limitations based on age are to be avoided if possible. However, safety in

air transportation is paramount. As discussed above, the FAA has not

found a way to acceptably evaluate the inevitable deterioration that

occurs with age. Considering that the consequences of a pilot's subtle or

sudden incapacitation potentially are so severe, the FAA has determined

that at this time safety requires the Age 60 Rule to remain unchanged.";

Yetman denial at p27 stating "While the ADEA does not apply

to the FAA's regulation of pilots, PPE, 118 F.3rd at 770, the FAA does take

cognizance that no group of people should be treated differently than

others unless there is a valid reason for doing so. As discussed above, the

FAA has determined that there are important safety considerations that

lead the FAA to denying the petition for exemption."; PPF v. FAA at 762-

763; Yetman v. FAA at 668, FN1, recognizing the PPF decision finding the

ADEA does not apply to the FAA.

|

26a

the PPF itself was a party.*? As case law holds, the ADEA

does not apply to the Age 60 rule. Congress has had the

opportunity to revisit both the Age 60 dispute and the

ADEA after these significant decisions. Congress has not

seen fit to amend the ADEA in any way that would nullify

the FAA's Age 60 rule.

Finally, petitioners claim that currently, there is a pilot

shortage, which may affect the war against terrorism

because military pilots are leaving the military to join airline

companies, is not true. Currently there is no shortage of

airline pilots, in fact, airlines are furloughing thousands of

pilots in response to the economic and travel industry

slump since the events of September 11, 2001. Evidence of

these furloughs lies in the number of airline pilots who

commented on this petition stating they did not want the

Age 60 rule to be changed because they and many of their

colleagues are furloughed. Thousands of furloughed pilots

submitted comments of this nature. In addition, the Air Line

Pilots Association (ALPA) comment to this docket stated

that 5,000 of the 65,000 pilots represented by ALPA are on

furlough.*

In addition, as in past petitions that raise this same

argument, the FAA notes that changing the Age 60 rule

would not have an impact on the number of pilots leaving

military service or the number of pilots in the airline

industry.

32 We note that while the PPF is not listed on the petition for exemption

the FAA received on June 13, 2002, the petition is located on the PPF

website with PPF letterhead and the attorney representing these ten

petitioners signs his correspondence with the FAA as "Attorney for the

Professional Pilots Federation."

33 See Comments of the Air Line Pilots Association, International, p18-19,

docket no. FAA-2002-12501-6622.

ee

27a

In consideration of the foregoing, I find that a grant of

exemption would not be in the public interest. Therefore,

pursuant to the authority contained in 49 U.S.C. §§ 40113

and 44701, delegated to me by the Administrator, the

petition of Butler, Dallas E. et al for an exemption from 14

CFR § 121.383(c) is hereby denied.

Issued in Washington, DC, on October 6, 2003

[s/

John M. Allen

Acting Director

Flight Standards Service

28a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-1386 September Term, 2004

Dallas E. Butler, et al.,

Petitioners

v.

Federal Aviation Administration,

Respondent

BEFORE: Ginsburg, Chief Judge, and Edwards,

Sentelle, _ Henderson, Randolph,

Rogers, Tatel, Garland, and Roberts,

Circuit Judges

ORDER

[ENTERED: DECEMBER 14, 2004]

Upon consideration of petitioners’ petition for

rehearing en banc, and the absence of a request by any

member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

29a

RECORD NO. 03-1386

CASE DECIDED WITHOUT ORAL ARGUMENT

PURSUANT TO CIRCUIT RULE 34(j)

In The

Gnited States Court of Appeals

For Che Bistrict of Columbia Circuit

DALLAS E. BUTLER, et al.,

Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

ON PETITION FOR REVIEW FROM THE

FEDERAL AVIATION ADMINISTRATION

PETITIONERS DALLAS E. BUTLER et al.

AMENDED PETITION FOR REHEARING WITH

PETITION FOR REHEARING EN BANC

Anthony P. X. Bothwell James R. Klimaski

LAW OFFICES OF Lynn I. Miller

ANTHONY P. X. BOTHWELL KLIMASKI & ASSOCIATES, P.C.

350 Bay Street 1819 L Street, N.W.

Suite 100 PMB314 7th Floor

San Francisco, California 94133 Washington, D.C. 20036

(415) 370-9571 (202) 296-5600

Counsel for Petitioners Counsel for Petitioners

Dated: November 18, 2004

THE LEX GROU P°C 1750K Street, NW ¢ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 ¢ (800) 815-3791 ¢ Fax: (202) 955-0022 ¢ www.

30a

CERTIFICATE AS TO PARTIES, RULINGS AND

RELATED CASES

CERTIFICATE OF COUNSEL

REQUIRED BY D.C. CIR. RULE 28(a)(1)

(A) PARTIES AND AMICI

The 12 parties who petitioned the Federal Aviation

Administration, and who petition for rehearing and

rehearing en banc, are:

Dallas E. Butler

Tom Gamble

Jeannie C. de Lamos

Paul Turner III

Alan J. De Sa

Arthur B. Ward

Woodrow M. Hassinger

Rudy Mack, Sr.

Joe R. McCabe

Philip N. Nash

Michael L. Oksner

William M. Siegel

The Southwest Airlines Pilots Association (SWAPA)

filed an amicus curiae brief in support of the pilots’ petition

for review. No intervenors or other amici are identified in

this matter.

(B) RULINGS UNDER REVIEW

The judgment of the panel, upon which rehearing

and rehearing en banc is petitioned, was issued by this

Court September 24, 2004.

The ruling at issue in this Court is an Order by John

M. Allen, Acting Director, Flight Standards Service, Federal

niet hides te

“

3la

Aviation Administration, United States Department of

Transportation, Docket No. FAA-2002-12501-6781, issued on

October 9, 2003.

A copy of that Order is attached to the Petition for

Review of Agency Order that the petitioners here filed

October 30, 2003.

The Order was announced in Summary Notice No.

PE-2003-74, at 68 Fed. Reg. 69761, 69764 (Dec. 15, 2003).

(C) RELATED CASES

The case under review was not previously before

this Court or any other court. No other related cases are

currently pending in this Court or any other court of which

counsel is aware.

/s/ Anthony P. X. Bothwell

ANTHONY P. X. BOTHWELL

Law Offices of Anthony P. X.

Bothwell

350 Bay Street - Suite 100 PMB314

San Francisco, CA 94133-1966

Tel. (415) 370-9571

JAMES R. KLIMASKI

LYNN I. MILLER

Klimaski & Associates, P.C.

1819 L Street, N.W. - 7th Floor

Washington, DC 20036

Tel. (202) 296-5600

Attorneys for Dallas E. Butler, et al.,

Petitioners

ee ae

32a

TABLE OF CONTENTS

PAGE

CERTIFICATE AS TO PARTIES, RULINGS AND i

i A I snes acinltarsadgesiaiben ne |

ADE 2 OR CITING cscs ccscanscscansccnannosvoosoncisnsensuandosannsnnanll ii

TABLE OF ALTTEROMRIT IIR, ccccscccoscssscesessecoccaconssecorsononssssanssssors iv

:

STATEMENT OF GROUNDS FOR |

REHEARING AND REHEARING EN BANC ........:ssssssssss 1 |

sy oannilacutaaeinideiaeammnniedsiin 3

ei Ts ss asdaeeinooseunanaianes 15

CERTIFICATE OF FILING AND SERVICE |

ADDENDUM |

:

|

|

ee ee ee ee ——

33a

TABLE OF AUTHORITIES

PAGE(S)

CASES:

Abbott Laboratories v. Gardner,

Oe RR Be IIE Biche cin aiiessnietsncesonitidcntccapiicincesictaiasnoniless 1,6

Chlorine Chemistry Council v. E.P.A.,

Bem TA I, Ce, FI i vecicscancisssinisssssnanseseseanis 7

Lincoln v. Vigil,

ie IE I ercicinisainssiscnslacciastiiaubilaiasnsnitinatoniins do

Padula v. Webster,

le Bae OF COA, CO, TOD) aig csscscescsnsesenses ENT Re io?

Sibley Memorial Hospital v. Wilson,

Pe We Be es Ms BI iP anisacntnsscaccnscanssrxsiancinnisccic 10

Steenholdt v. F.A.A.,

OAM Bek GS COC. Car, 2008) ocsecsscssccsscecsnmasnsasscseasasacs ye

Tozzi v. U.S. Dept. of Health and Human Services,

Mal A TE COs COR, BD a isthsiscntancsinasnsernniadsnindnns 1,6

U.S. Air Tour Ass'n v. FAA,

Oe i BFF CK CR, DIE sccasessssssactancssossinssvcassnsnce 1,6

U.S. v. Nixon, .

Se MI OR hak anicchascitccchsaiatraaibiacadeipsuihandidenses ALT

Yetman v. Garvey,

a ce OO Ce, IY scien nsncsesasesnssinsnscbecannund 6

STATUTES AND REGULATIONS: |

WOES MOB sccsonvinresconvssisisnsatsstcccnteneiteakeauaieadaeeee

WE AN ici aa

SUB, BONO assis ctictccscccrrnssataentiddeee

WUGL COUN vscsicsiiiccdccnmcpene

GP VIG, 0 AOU NI ses ccsstcisiisorcrccnnieniticeoamionaianal

PEI 6 NIN osc ccisiciccincoriceimncpuna guna

MUBO. CUI oescsrerssiscnicnccrnamonia

CRUG C. 0 ON oases sdticavitrncanegenel

WORE: CANON ioiiccincsnitcnmamaaanae

MUD 6 WIR III ssicesissccnsvrcccstersiensiaaniaaane

MPUT GS, GAMO NO icisecicecensscciccascasesasnscnatatannsansa

PURO CUI ois ccicicticirmnaeaee

SEC CARON iiinsccscccesrcncconnee

AS0. SME isi Since

USO. 6 OUI ohn inirrinlerenneee

49 USC. § 40101(a)(12) sa eshaeplansecapaaeadeioasaideleaiaiaaaaa

SOTIGAS 6 ODI ois i idsnsshinirislndceienmndememda

NOC. 6 II oo osoieciscitncsrncememnsmnanaal

35a

i 8

49 U.S.C. § 40101(b)(1)(C) eevsescsntsesesssssssssssststsessessee 8,9

49 US.C. § 40101(6)(3) eesccseesesrtestsesststessssisssstuntietseseeseec 8

ee 8

49 US.C. § 40101(d)(i) ccsrseesetsetsesessteetsssssesasisssteseeseee 8

49 US.C. § 40101(d)(2) .ccsseesotntsesetstisetstissississsesseeeseee 8

49 US.C. § 40101 (€)(1) sccsrseesrtntsesntstsetsssssesitsetnteseeseee 8

ne 4

aa cnteinssersiemsaees 2,3

OTHER AUTHORITIES:

Commuter Operations and General Certification and

Operations Requirements; Air Carrier and Commercial

Operator Training Programs; Final Rules;

60 Fed. Reg. 65831 et seq., Dec. 20, 1995 ........ccescessesseee assim

Information Quality Act of 2000 (section 515 of the

Treasury and General Government Appropriations Act

for Fiscal Year 2001

te a WO, BUN, BEBR, OG I) cnc sicsccessnssassdnccsnncececnsencs 1,7

Office of Management and Budget, Guidelines for

Ensuring and Maximizing the Quality, Objectivity,

Utility, and Integrity of Information Disseminated by

Federal Agencies; Republication;

67 Fed. Reg. 5365 et seq., Feb. 5, 2002.......c.cccssssssessssssesseesseeseeens 1

36a

STATEMENT OF GROUNDS FOR REHEARING

AND REHEARING EN BANC

Pursuant to Circuit Rule 35(b), Petitioners Dallas E.

Butler et al. ("the pilots") state that rehearing and rehearing

en banc is necessary as to the decision in this case, Dallas E.

Butler et al. v. Federal Aviation Administration, No. 03-1386

(D.C. Cir., Sept. 24, 2004), for the following reasons:

1. to secure and maintain uniformity with

applicable Supreme Court and circuit authority which

mandates that when an agency's reliance on and

dissemination of questionable data is harmful, those harmed

are entitled to their day in court (Tozzi v. U.S. Dept. of

Health and Human Services, 271 F.3d 301, 307 (D.C. Cir.

2001)); that persons harmed by agency action have a right of

judicial review (Abbott Laboratories v. Gardner, 387 U.S.

136, 140 (1967)); and that no judicial deference is owed to

FAA's authority when the government's own data suggests

the contrary (U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018

(D.C. Cir. 2002).

y to address and resolve three questions of

exceptional importance,

a. whether the FAA's reliance on

concededly false age-safety data in its denial of the pilots'

request for exemptions violated mandatory standards

established in the Information Quality Act of 2000 (section

515 of the Treasury and General Government

Appropriations Act for Fiscal Year 2001 (Pub. L. No. 106-

554; H.R. 5658) and guidelines pursuant thereto (Office of

Management and Budget, Guidelines for Ensuring and

Maximizing the Quality, Objectivity, Utility, and Integrity of

Information Disseminated by Federal Agencies;

Republication; 67 Fed. Reg. 5365 et seq., Feb. 5, 2002), in

defiance of the rule that, so long as a federal regulation is

37a

extant, the Executive Branch is bound by it (U.S. v. Nixon,

418 U.S. 683, 695 (1974)),

b. even if the Information Quality Act

standards are deemed to be not binding, whether the FAA's

denial under its no-exemptions policy failed to meet the

"substantial evidence" test according to judicially

manageable standards (Steenholdt v. F.A.A., 314 F.3d 633,

638 (D.C. Cir. 2003), Lincoln v. Vigil, 508 U.S. 182, 193 (1993),

Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987)), where

FAA officials conceded the policy had no safety basis and

was intended as a form of economic favoritism, and

c whether the FAA's claim of a

medical/safety justification for its decades-long refusal to

grant even a single exemption from 14 C.F.R. § 121.383(c)

("the age 60 rule"), now is ripe for adjudication.

ARGUMENT

This case involves 12 pilots who submitted to the

Federal Aviation Administration a petition (pet.) fox

exemption from 14 C.F.R. § 121.383(c) ("the age 60 rule"), a

regulation that bars pilots from flying commercial airliners

after age 59.

The record shows that the FAA has followed a policy

of automatic denial of ali such requests for exemption. The

record also shows that this policy never had any safety

purpose, and that its only purpose has been supposed

economic favoritism for certain interests in the airline

industry.

In its Response to Petitioners Allegations (at 9-

15)(J.A. 191-197), the FAA gratuitously denied the pilots'

charges of FAA favoritism and misrepresentation. The

agency did not chillenge the accuracy, relevance or

Os

admissibility of the evidence presented by petitioners.

Undisputed evidence established that the agency

intentionally misrepresented both the purpose of its no-

exemptions policy and the data that supposedly justified it.

The agency, holding all the records of medical fitness and

safety performance of the 12 petitioners, never denied the

petition's averments that these pilots have unblemished

fitness and performance records and are among the safest,

ablest pilots in the industry. Where no medical/ safety

issues govern, the medical/safety testing protocols

demanded by the agency become irrelevant.

This is the first case involving the age 60 rule in

which the FAA's conduct and culpability are central to the

plea. This is the first case in which a broad array of

evidence - FAA internal documents, previously secret, as

well as extensive publicly available information - on the

entire history of the agency's no-exemptions age 60 policy

has been proffered in support exemptions. The agency's

failure to rebut the evidence seals the proof of the pilots'

case.

It remains undisputed that (a) these pilots, ages 57 to

67, have unblemished safety performance and medical

records; (b) top FAA officials conceded there never was a

safety or medical basis for the no-exemptions policy, and

that its sole intent was a favor for members of the industry

they are supposed to regulate; (c) Europe, Japan and other

air powers do not follow an age 60 rule; (d) astronauts,

military and cargo pilots and the pilots of Air Force One are

exempt from the rule; (e) the FAA has not identified a single

airline accident anywhere in the world attributable to pilot

age; (f) the age 60 rule is a lawfully valid regulation but of

economic, not safety, relevance, and (g) the FAA, pursuant

to 49 U.S.C. § 44701(f), has authority in the public interest to

grant exemptions from it.

—— cc ltt—“—tstsw™OSOOC

39a

The court's one-paragraph judgment, rendered after

an 11th-hour cancellation of the scheduled hearing, reads as

if the panel hardly read past the first page of the FAA's

argument. It adopted the FAA's factually incorrect claims

that (a) the pilots here challenged the validity of the age 60

rule; (b) safety issues were the basis for the agency's denial

of exemptions, and (c) the pilots provided mo specific

information showing why the requested exemptions would

not adversely affect safety. In fact, the pilots showed that

their exemption would not adversely affect safety, not only

because they have unblemished medical and safety records,

but also because the rule never had anything to do with

safety. The pilots did not argue that the rule was invalid,

but rather acknowledged that it was a valid regulation while

showing its only purpose was economic. By deceptively

equating the pilots' request for exemptions to a legal

challenge to the validity of the regulation, the F AA induced

the panel to deny the pilots their day in court. The pilots

now ask the court to remand the case to the FAA for a

decision on whether to exempt each of the 12 petitioners,

consistent with the record and the law.

The same favoritism that gave birth to the age 60 rule

also has caused the FAA to ignore safety controls inherent in

its overall regulatory system (pet. notes 107-113, 130, 214

and associated text), in rigid adherence to its unwritten

policy of automatic denial of all requests for exemptions.

The regulation was not invalidated by its secret economic

purpose, nor by the fact that the FAA used false data to give

it a "safety" spin. But the agency's denial of exemptions

lacks legitimacy on account of its reliance on falsified data

and its failure to refute the petitioners! evidence.

Where there is showing that an exemption would

have no adverse effect on safety, the FAA concedes that it

has a statutory duty to base its decision on what best will

serve the public interest. The FAA's secret presumption that

40a

its no-exemptions policy has an economic justification has

no more validity than its discredited presumption that the

policy has a safety justification.

The central facts, concerning the lack of any

medical/ safety basis for either the age 60 rule or the FAA's

no-exemptions policy, are as follows: The rule was created

in 1959 by FAA Administrator Elwood Quesada as a favor

for his friend, C. R. Smith, chairman of American Airlines,

who had lost a series of labor disputes over the airline's age

60 retirement policy (pet. at 10-14)(J.A. 017-022). FAA

lawyers from the outset privately stated there was no

evidence that could provide any "scientific or factual

justification" for the rule (id. at 14-15)(J.A. 021-022). The

National Institutes of Health refuted claims that there was

any medical justification for the rule (id. 23-27)(J.A. 030-034).

The FAA persisted in publicizing flawed "studies" that

grossly distorted data to create a false impression that pilots

over age 59 were less safe (id. at 23-24, 57-65, exhibit U)(J.A.

030-031, 064-072, 156-157). The agency was aware of

deficiencies in age-safety data on which it relied. Yetman v.

Garvey, 261 F.3d 664, 677 (7th Cir. 2001). Fallacies and

falsehoods in age-safety data on which FAA has relied has

long been well known in the scientific community (id. at 58-

59)(J.A. 065-066). It is undisputed that enlightened airline

executives today are opposed to the FAA's no-exemptions

policy. It is undisputed that a former FAA Administrator, a

former Federal Air Surgeon and other FAA officials

admitted that there never was any safety or medical basis

for the age 60 rule, and that its sole intended purpose was

economic favoritism for members of the industry they are

supposed to regulate (id. at 27-28, 55-56)(J.A. 034-035, 062-

063).

Using dispositive Supreme Court precedent, this

court was required to grant judicial review of the agency's

denial of the pilots' request for exemptions. Persons harmed

4la

by an agency action have a right of judicial review (Abbott

Laboratories v. Gardner, 387 U.S. 136, 140 (1967). This court

was required to follow its own rule, that persons harmed by

agency's dissemination of questionable data are entitled to

their day in court (Tozzi v. U.S. Dept. of Health and Human

Services, 271 F.3d 301, 307 (D.C. Cir. 2001). The court must

deal with the merits of the case. Here the presumption of

deference to the "expert" agency is overcome by evidence -

including formerly secret records from FAA files - revealing

there was no safety basis for the no-exemptions policy. The

court owes no deference to FAA's "expert" assurances

because the government's own data suggests the contrary

(U.S. Air Tour Ass'n v. FAA, 298 F.3d. 997, 1018).

Government-wide guidelines promulgated by the

Office of Management and Budget under the Information

Quality Act have the full force of law. So long as a federal

regulation is extant, the Executive Branch is bound by it

(U.S. v. Nixon, 418 U.S. 683, 695 (1974). The aforesaid

Information Quality guidelines of 2002 were in force when

the FAA on October 6, 2003 denied the pilots' request for

exemptions. On its face, the order denying exemptions

made no attempt to comply with these congressionally

mandated guidelines. The order denying the requested

exemptions was dictated by an unwritten no-exemptions

policy founded on distorted and falsified data - the

antithesis of standards of scientific validity mandated by the

guidelines. The FAA order, which failed to comply with

applicable law, must be found invalid.

Even if the Information Quality guidelines were

found not to be binding, this court still must find the order

invalid because it fails the "substantial evidence" iest.

According to the rule of this circuit, the measure of

"substantial evidence" is found in judicially manageable

standards. Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir.

2003. See also Chlorine Chemistry Council v. E.P.A., 206

sows

42a

F.3d 1286, 1290-91 (D.C. Cir. 2000). Judicially manageable

standards are to be found in regulations. Padula v. Webster,

822 F.2d 97, 100 (D.C. Cir. 1987). Even if the guidelines were

not per se binding, nevertheless they supplied standards

judicially manageable for the purpose of defining arbitrary

and capricious conduct, abuse of agency discretion, and

insubstantial evidence. Judicially manageable standards

also are to be found in statutes that circumscribe agency

discretion Lincoln _v. Vigil, 508 US. 182, 193 (1993).

Congress has ordered such standards in statutes that

circumscribe FAA's discretion in deciding whether to grant

the exemptions sought by the petitioners here.

Congress has mandated that the FAA, in deciding

whether to grant the exemptions, "shall consider" the

following as being in the public interest:

- The requirements of national defense

and commercial aviation (49 U.S.C. §

40101(c)(1));

- Regulating air commerce in a way

that best promotes safety and fulfills

national defense requirements (49

US.C. § 40101(d)(1)); and

- Encouraging and developing civil

aeronautics (49 U.S.C. § 40101(d)(2)).

The pilots have shown conclusively that the rule is

not safety-related but rather economic in nature. The FAA,

in deciding whether to grant exemptions, has a statutory

duty to consider the following additional matters identified

in 49 U.S.C. § 40101(a), (b), among other factors, as being in

the public interest:

43a

Assigning and maintaining safety and

security as the highest priority in air

commerce (49 U.S.C. § 40101(a)(1));

Preventing deterioration of

established safety procedures (49

U.S.C. § 40101(a)(3));

Assuring the availability of adequate

service without unreasonable

discrimination or unfair or deceptive

practices (49 US.C. § 40101(a)(4),

(b)(3));

Coordinating transportation by, and

improving relations among, air

carriers, and encouraging fair wages

and working conditions (49 U.S.C. §

40101(a)(5));

Strengthening the competitive

position of air carriers to at least

ensure equality with foreign air

carriers, including the attainment of

the opportunity for U.S. air carriers to

maintain and _ increase their

profitability in foreign air

transportation (49 U.S.C. § 40101(a)(6),

(a)(15), (e)(1));

Developing and maintaining a sound

regulatory system as to the present

and future needs of the commerce of

the United States and the national

defense (49 US.C. § 40101(a)(7),

(b)(1)(C));

44a

~ Preventing unfair, deceptive or

predatory practices (49 U.S.C. 5

40101(a)(9));

- Ersuring that consumers in ail

regions of the United States, including

those in small communities and rural

and remote areas, have access to

affordable, regularly scheduled air

service (49 US.C. § 40101(a)(11),

(a)(13));

- Encouraging and developing practices

to provide efficiency, innovation and

low prices (49 U.S.C. § 40101 (a)(12)).

This case should be remanded to the agency for

reconsideration in light of the aforesaid non-discretionary,

statutory mandates. FAA officials never identified their

underlying economic motives beyond vague references to

pilot training costs and airline administrative convenience.

However, relying on the FAA's past exemptions from the

rule, for international pilots and carriers (pet. notes 35, 36,

267 and associated text)(J.A. 013, 073) and domestic pilots

and carriers (id., note 259 and associated text); 60 Fed. Reg.

65833, 65843, Dec. 20, 1995), changes in international

regulatory policies and practices (id., note 263 and

associated text)(J.A. 072), including U.S. treaty obligations,

and in light of well-known economic conditions in the

domestic airline industry, petitioners proffer the following

suggestions as possible exemption practices. On remand,

the FAA could, for example:

a. limit the exemptions to pilots and/or carriers

with demonstrated safety records and/or stable economic

balance-sheets (pursuant to 49 U.S.C. § 40101(a)(2), under

45a

which the FAA must evaluate the safety implications of new

air transportation services).

b. limit the exemptions to domestic carriers and

operations only (pursuant to 49 U.S.C. § 40101 (a)(7),

(b)(1)(C), for developing and maintaining a sound

regulatory system as to the present and future needs of the

commerce of the United States and the national defense, and

consistent with the U.S. treaty obligations as a member of

the International Civil Aviation Organization).

c limit the exemptions to pilots and carriers

serving developing, regional, and secondary markets only

(pursuant to 49 U.S.C. § 40101 (a)(8), encouraging air

transportation at major urban areas through secondary or

satellite airports, consistent with regional airport plans of

regional and local authorities).

d. limit the exemptions to the same standards

adopted by the European Community through its Joint

Aviation Authority, ie., age 65 for one pilot in a multi-pilot

crew, where at least one other pilot is under age 60 and fully

qualified in the aircraft and operations undertaken

(pursuant to 49 USC. § 40101(a)(6)(B), to promote

international competitiveness of U.S.-based airlines).

e. grant broad exemptions to mitigate

disparities between the high-cost legacy carriers - most now

in or near bankruptcy - and newer, low-cost carriers

(pursuant to 49 U.S.C. § 40101 (a)(4), (5), and (6)(A),(B), to

promote efficient operations, fair employment, and

competitiveness of domestic airlines). The "early"

retirement mandate and defined benefit pension plans of the

legacy carriers threaten not only the solvency of the carriers

but also the solvency of the Pension Benefit Guaranty

orporation. Mandatory retirement at age 60 deprives these

46a

trust funds of their major interest/investment income while

extending payout years. |

The exemptions sought here are not orders for

employment but rather the removal of a prohibition of

employment. See Sibley Memorial Hospital v. Wilson, 488

F.2d 1338, 1340 (D.C. Cir. 1973) ("Control over access to the

job market may reside, depending upon the circumstances

of the case," in an entity other than the employer.) Through

its age 60 no-exemptions policy, the FAA restricts

employment contract opportunities between third parties

(pilots and airlines). The employment of exempted pilots

would remain subject to all policies, rules, regulations and

statutes governing air operations, to ensure the highest

possible degree of safety in the public interest. Ironically, 29

U.S.C. § 633a bars the FAA from removing its own pilots

from flight duties at age 60, even though they fly the same

types of aircraft in the same airspace as air carriers and

pilots subject to its no-exemptions policy.

The central issue raised in this case - the FAA's claim

of a medical/safety justification for its decades-long refusal

to grant even a single exemption from the age 60 rule - must

be adjudicated on the merits. Both the rule and the no-

exemptions policy have been controversial for decades. In

its 1995 Disposition of Comments (Fed. Reg. 65977, 65980,

Dec. 20, 1995; Disposition of comments and notice of agency

decisions), the FAA said more than 100 exemption petitions

were pending. In the last decade, four substantantive

challenges have clogged calendars of two circuits. The

undisputed evidence in the present case shows that the

agency's assertion of a medical or safety rationale was never

more than a pretext. The record here provides the first

serious challenge to the FAA's credibility concerning the

purpose and effect of the no-exemptions policy. This case is

ripe.

47a

This is not the first time that the agency has

misconstrued requests for exemption as requests to overturn

the regulation. The FAA in 1995, addressing more than 100

petitions for exemptions then outstanding, declared without

prior notice or public comment that it would consider no

petition for exemption from the rule unless it contained a

protocol that would allow the FAA to change the rule itself:

The FAA has determined that the petitioners

have not shown their circumstances to be

unique compared with those who comply

with the rule, and that the issues they raise

are more appropriately considered in

connection with whether the FAA should

propose to change the general rule.

60 Fed.Reg. 65977, 65980, id.; Disposition of comments and

notice of agency decisions. The disposition's summary

explained:

This action announces FAA's decisions on a

number of issues regarding the FAA's "Age

60 Rule". The issues include: responding to

the comments requested in 1993 regarding

various aspects of the Age 60 Rule, including

the "Age 60 Project, Consolidated Database

Experiments, Final Report", and issues raised

by pilots seeking exemptions from the Age 60

Rule, issues raised by a petition for

rulemaking by the Professional Pilots

Federation (PPF), requesting the FAA to

remove the Age 60 Rule.

Id. at 65977, n. 1.

That document examined virtually every aspect of

the age 60 debate - history, science, medical and cognitive

48a

testing, performance evaluations, statistical studies,

operational distinctions, international policies, etc. Rejecting

each as a basis for change, FAA made no distinction

between standards it would require for a single exemption

or for a change to the general rule. The agency said it made

no attempt to evaluate economic impacts: "The FAA has not

evaluated the economic impact of a proposed change." Id.

at 65984. By its circular reasoning, the FAA considers any

substantive petition for exemption not as an exemption from

the rule, but as a petition for a change in the rule. This court

is bound, not by this Kafkaesque policy, but rather by the

legal standards discussed above.

Multiple waivers, exemptions from the age 60 rule

have been granted by the FAA to both foreign and domestic

operators and pilots, without requiring any particularized

showing of individual characteristics. All were granted on

broad claims by requesters, acknowledged by the FAA,

based on economic factors. These included direct costs,

training amortization costs, pilot hiring/ replacement costs,

airline scheduling convenience, etc. Id.

The FAA conceded that it is required to consider

economic factors in addition to requirements enumerated in

49 U.S.C. § 40101. The agency said:

Changes to Federal regulations must undergo

several economic analyses. First, Executive

Order 12866 directs that each Federal agency

shall propose or adopt a regulation only

upon a reasoned determination that the

benefits of the intended regulation justify its

costs. Second, the Regulatory Flexibility Act

of 1980 requires agencies to analyze the

economic effect of regulatory changes on

small entities. Third, the Office of

Management and Budget directs agencies to

49a

assess the effect of regulatory changes on

international trade.

Commuter Operations and General Certification and

Operations Requirements; Air Carrier ai Commercial

Operator Training Programs; Final Rules, V0 Fed. Reg.

65831, 65899, Dec. 20, 1995.

By means of a rule change, the FAA imposed

stringent equipment, personnel, operational, maintenance,

and procedural standards on operators of aircraft having 10

to 30 seats. Id. The standard compliance date for most uf

the new standards and procedures was 15 months after

publication of the final rule. Waivers, exemptions from

compliance, were established for certain elements, some as

long as 15 years. Id. at 65849-53. In particular, the age 60

rule was imposed on the operators and pilots of the affected

aircraft, but blanket exemptions were extended

automatically for four years.

The FAA is unable to quantify the costs to

operators or to affected pilots. The nature and

magnitude of these costs depend upon the

alternatives available to each party, which the

FAA has been unable to identify in sufficient

detail to estimate costs. The FAA believes

that the four-year phase-in of this

requirement will help to minimize any

potential disruptions the rule may cause and

that the resulting cost are not likely to be

substantial. The FAA also believes that the

age 60 requirement is essential to achieve the

"one level of safety" goal established by the

Secretary of Transportation and that any cost

of this requirement is justified by its benefits.

Id. at 65902.

50a

When the FAA in 1992 extended the dates for its

enforcement of the International Civil Aviation

Organization version of the age 60 rule in US. airspace

against operators and pilots of foreign carriers, the FAA saw

no safety issue and granted their exemptions on economic

grounds - pilot training costs and the carriers’

administrative convenience.

As the pilots' petition told the FAA:

When the FAA announced in 1995 that the

age 60 rule would be applied starting four

years later to most part 135 operations,

including pilots, it specifically stated that the

reason for this decision was safety data.

However, when the International Civil

Aviation Organization requested such data in

a survey of member nations, the FAA -

notwithstanding the fact that most part 135

captains were required to hold the same

credentials as part 121 captains, and all part

135 pilots (ci\ptains included) were allowed to

y - and many did fly - past age 60 -

responded that it had never accessed any

such data. FAA told ICAO that such data

exists but that FAA did not even know

whether it was accessible.

Pet. at 63-4 (J.A. 070-071)(emphasis in original) (footnotes

omitted). It has been clear for many years that the agency's

pilot age policies have been arbitrary.

In sum, the panel misread the petition,

misconstruing a petition for exemptions as if it were a

request to invalidate the underlying regulation, and

misinterpreting an economic argument as a safety issue.

This court should find, based on the overwhelming

evidence in the record, that there was not, and still is not,

5la

any medical or safety basis for the FAA's no-exemptions

policy. The court should remand the case to the agency, to

reconsider the denial,of exemptions according to the

criteria mandated by 49 U.S.C. § 40101.

CONCLUSION

For the foregoing reasons, the panel should rehear

the case, and the Court should grant rehearing en banc.

/s/ Anthony P. X. Bothwell

ANTHONY P. X. BOTHWELL

Law Offices of Anthony P. X.

Bothwell

350 Bay Street - Suite 100 PMB314

San Francisco, CA 94133-1966

Tel. (415) 370-9571

JAMES R. KLIMASKI

LYNN I. MILLER

Klimaski & Associates, P.C.

1819 L Street, N.W. - 7th Floor

Washington, DC 20036

Tel. (202) 296-5600

Attorneys for Dallas E. Butler, et al.,

Petitioners

52a

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on November 18, 2004, I filed

with the Clerk's Office of the United States Court of Appeals

for the District of Columbia Circuit, via hand-delivery, the

required copies of the foregoing Amended Petition for

Rehearing with Petition for Rehearing En Banc, and further

certify that I served, via UPS Second Day Air transportation,

the required copies of same to the following:

Edward Himmelfarb

Robert S. Greenspan

U.S. DEPARTMENT OF JUSTICE

Appellate Staff, Civil Division

950 Pennsylvania Avenue, NW

Room 7646

Washington, DC 20530

Counsel for Appellant

The necessary filing and service upon Counsel were

performed in accordance with the instructions given me by

counsel in this case.

/s/ Kimberly J. Everitt

THE LEX GROUP®*

1750 K Street, NW

Suite 475

Washington, DC 20006

(202) 955-0001

53a

ADDENDUM

54a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-1386 September Term, 2004

Dallas E. Butler et al.,

Petitioners,

Vv.

Federal Aviation Administration,

Respondent.

On Petition for Review of an Order of

the Federal Aviation Administration.

Before: EDWARDS, HENDERSON and GARLAND,

Circuit Judges.

JUDGMENT

[ENTERED: SEPTEMBER 24, 2004]

This cause was considered on the record from the

Federal Aviation Administration (FAA) and on the briefs by

counsel. The petitioners, who are licensed and certified

pilots over age 60, seek review of an FAA order denying

their applications for exemption from the “Age 60 Rule,” 14

C.F.R. § 121.383(c), which prohibits a pilot from serving on a

commercial airplane after his 60th birthday. Although the

petitioners purport to seek an “exemption,” the petition

lacks specific information to justify exempting the

individual petitioners as required under the FAA

regulations. See 14 C.F.R. § 11.61 (“You must include the

following information in your petition for an

exemption...The reasons why granting the exemption

would not adversely affect safety, or how the exemption

would provide a level of safety at least equal to that

55a

provided by the rule from which you seek the

exemption....”). It is plain from the petitioners’ arguments

before the agency and before the court that they initiated

this proceeding in order to challenge directly the validity of

the rule itself, which is properly effected only through a

petition for rulemaking rather than a petition for exemption.

See 14 C.F.R. §§ 11.61, 11.73; see also Yetman v. Garvey, 261

F.3d 664, 668-69 (7th Cir. 2001); Keating v. FAA, 610 F.2d 611,

612 (9th Cir. 1979); Rombough v. FAA, 594 F.2d 893, 897 (2nd

Cir. 1979). Accordingly, it is

ORDERED that the petition for review is denied.

Pursuant to D.C. Circuit Rule 36, this disposition will

not be published. The Clerk is directed to withhold issuance

of the mandate herein until seven days after resolution of

any timely petition for rehearing or rehearing en banc. See

Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:

/s/

Mark J. Langer, Clerk

56a

Oral Argument

Scheduled for September 13, 2004

In the

United States Court of Appeals

for the

District of Columbia Circuit

No. 03-1386

DALLAS E. BUTLER, TOM GAMBLE, JEANNIE C. de

LAMOS, PAUL TURNER III, ALAN J. De SA, ARTHUR B.

WARD, WOODROW M. HASSINGER, RUDY MACK, SR.,

JOE R. McCABE, PHILIP B. NASH, MICHAEL L. OKSNER,

and WILLIAM M. SIEGEL,

Petitioners,

v.

MARION C. BLAKEY, Administrator, Federal Aviation

Administration, and NORMAN Y. MINETA, Secretary,

U.S. Department of Transportation,

Respondents.

Petition for Review of an Order denying Relief by the Federal

Aviation Administration, Department of Transportation,

Docket No. FAA-2002-12501-6781, issued on October 9, 2003

FINAL BRIEF FOR PETITIONERS-APPELLANTS

57a

JAMES R. KLIMASKI

LYNN I. MILLER

Klimaski & Associates, P.C.

1819 L Street NW - Suite 700

Washington, DC 20036-3830

(202) 296-5600

ANTHONY P. X. BOTHWELL

Law Offices of Anthony P. X. Bothwell

350 Bay Street

Suite 100 PMB-314

San Francisco, CA 94133-1966

(415) 370-9571

Attorneys for Petitioners-Appellants

June 11, 2004

58a

CERTIFICATE AS TO PARTIES,

RULINGS AND RELATED CASES

CERTIFICATE OF COUNSEL

REQUIRED BY D.C. CIR. RULE 28(a)(1)

(A) PARTIES AND AMICI

The 12 parties who petitioned the Federal Aviation

Administration, and who appeal the agency's decision, are:

Dallas E. Butier

Tom Gamble

Jeannie C. de Lamos

Paul Turner III

Alan J. De Sa

Arthur B. Ward

Woodrow M. Hassinger

Rudy Mack, Sr.

Joe R. McCabe

Philip N. Nash

Michael L. Oksner

William M. Siegel

The Southwest Airlines Pilots Association (SWAPA)

anticipates filing an amicus curiae brief in support of this

petition. No intervenors or other amici have been identified

in this matter.

(B) RULINGS UNDER REVIEW

The ruling at issue in this Court is an Order by John

M. Alien, Acting Director, Flight Standards Service, Federal

Aviation Administration, United States Department of

Transportation, Docket No. FAA-2002-12501-6781, issued on

October 9, 2003.

59a

A copy of that Order is attached to the Petition for

Review of Agency Order that the petitioners here filed

October 30, 2003.

The Order was announced in Summary Notice No.

PE-2003-74, at 68 Fed. Reg. 69761, 69764 (Dec. 15, 2003).

(C) RELATED CASES

The case under review was not previously before

this Court or any other court. No other related cases are

currently pending in this Court or any other court of which

counsel is aware.

TABLE OF AUTHORITIES

BASIS FOR JURISDICTION

STATEMENT OF ISSUES

STATEMENT OF THE CASE

STATEMENT OF FACTS

SUMMARY OF THE ARGUMENT

ARGUMENT

I

II.

Il.

60a

TABLE OF CONTENTS

Revised after entry of Appendix Citations

THE AGENCY IN ITS DECISION RELIED

ON INFORMATION THAT FAILED TO

MEET CONGRESSIONALLY MANDATED

Se PE iviisensiniciceniesinsibiancbtinhienteicaamiesiantiniaitnn

THE AGENCY DID NOT BASE ITS

DECISION ON SUBSTANTIAL EVIDENCE ........

THE RECORD AS A WHOLE JUSTIFIES

REJECTING THE CREDIBILITY OF THE

PA. 0 OF a asicienenemiinincnnnninbiniiins

THE AGENCY DECISION WAS

UNWARRANTED IN LIGHT OF FACTS

SUBJECT TO THIS COURT'S DE NOVO

REVIEW UNDER THE APA.....................ccccssccceseee

POOH ESO HOSTESS ESTEE SEHESEEEEETER OEE ESESS

SPOOR ESTEE EEE EEE ESE SESE TEESE SEER ESSE EEE EEE EEEEEEEEEEEEEEEE EEE EES

SPO SE TEESE HEE EERE ECE EEE EEE EHESEEESEEEEE EEE EES EES

SOCCER EEE SEES TEESE SES EEEEEEO STE ESESESEEREEES

SPR OH REESE ESE RESTS ESSE OEE EES

SPREE REESE EEE EEE SEES EEE EEE EOE EEE EEEEE SEE EEEEEEEEEE EEE ET EEEOHESE SES EE SEE EEES

6la

THE AGENCY DECISION WAS

ARBITRARY, AN ABUSE OF DISCRETION,

AND LACKING IN GOOD FAITH ...... ee eeeeeeeee: 19

THE AGENCY DECISION WAS

CONTRARY TO EQUAL PROTECTION OF

THE LAWS

THE AGENCY DECISION WAS

CONTRARY TO DUE PROCESS OF LAW

THE FAA SHOULD NOT

AUTOMATICALLY GROUND 59-YEAR-

OLD PILOTS WHO MEET ALL

APPLICABLE MEDICAL, PERFORMANCE

AND SAFETY STANDARDS

CONCLUSION

CERTIFICATE OF COMPLIANCE

STATUTORY AND REGULATORY ADDENDUM

62a

TABLE OF AUTHORITIES

Revised after entry of Appendix Citations

CASES, STATUTES, AND OTHER AUTHORITIES

Note: Appellants have marked the authorities upon which

they chiefly rely with asterisks.

Cases

Agosto v. Immigration and Naturalization Service, 436

ee FOI ie eee 20

ALPA v. Quesada, 276 F.2d 892 (2nd Cir. 1960) .....sssssssssssseeen 17

Aman v. FAA, 856 F.2d 946 (7th Cir. 1988)....s:cssssssssssssssssssesee 16

*Association of Data Processing Service Organizations,

Inc. v. Board of Governors, 745 F.2d 677 (D.C. Cir.

RI veccsniosiniscssisnsctonsnsisieicisbishiniaistsipiisicnaiciasipenlatenetalaneiaiiadinens 12,19

Baker v. FAA, 917 F.2d 318 (7th Cir. 1990).............ccccccsscesscsesese 7

Breeden v. Weinberger, 493 F.2d 1002 (4th Cir. 1974)............. 13

Besghe o. Gait, SSE UTS. SR GI) ciscsicscinsinnssininniclaanssiainistinsaicetansion 20

Dept. of Transportation, Federal Highway Admin. v.

LOG. TAO BB TO CA, I csi ctertivtiosimnitioncicny 10

Gables by the Sea, Inc. v. Lee, 498 F.2d. 1340 (5th Cir.

FFD ssccisenciiisnsivcsascieepniiisiavienschacthassctpieianaldinenidaiasaiaipiedaumpadineeia 17

Gray v. FAA, 594 F.2d 793 (10th Cir. 1979) ......ccscssscsseseseesesees 16

Haley, Bader & Potts v. FAA, Civil No. 85-1943, Dist.

Ct., D.C., filed Jun. 15, 1985; final order dated Jun. 27,

*Izaak Walton League of America v. Marsh, 655 F.2d 346,

SA: ars STII UIE Ds criceiccecscenscesesassscconesesecsnsesonsescosiscescncscses 8

Keating v. FAA, 610 F.2d 611 (9th Cir. 1979) 00.0... eececeseseseseeeees 16

Lawrence v. Texas, 123 S.Ct. 2472 (2003) ........ccccccssscessseseseeeseees 18

Modica v. U.S., 518 F.2d 374 (Sth Cir. 1975)......cesesesessesesesees 18

NLRB v. Payless Cashway Lumber Store, Inc., 508 F.2d

I SI IITA sshcirtchceecenduntenssnnscebéecostoesectensceuscccsecssosecseese 13

Natural Resources Defense Council, Inc. v. SEC, 606

I ID ITI occ ctctnnscnactsnccecnanseseensssescsonuscesseees 9, 22

*New York Times Co. v. U.S., 403 U.S. 713 (1971) .......c.cecceseees 10

O'Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974) ......cceeceeee. 17

Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J.,

cota canaachseahptnsnesenanecensesanscstesceteseetceesseescesseceneee 21

Professional Pilots Federation (PPF) v. FAA, 118 F.3d

2. SERRE ERS aoe 16, 17

Port Norris Exp. Co., Inc. v. I.C.C., 687 F.2d 803 (3rd

SNE I tai tUisaiadiceltaieinataenasseadntntinccaceestevntsesescocececceresenssoverensees 10

Rombough v. FAA, 594 F.2d 893 (2nd Cir. 1979)............s0000 6, 16

Sierra Club v. Hardin, 325 F.Supp. 99 (D.C. Alaska

ae adaaeieesaheieeetcstnatesatesenstsnesescnsecsssnsceceseoscesesecevsesvieceseesecceece 17

*Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) ...........000 20

Starr v. FAA, 589 F.2d 307 (7th Cir. 1978)............cccsssesssseeseeees 16

64a

*Steadman v. SEC, 450 US. 91 (USB) ...ccccresarscessssscsccossnsasssssses 10

Town & Country Elec., Inc. v. N.L.R.B., 106 F.3d 816

CEL UG, BIG P sivcnsicsnnnsiisinneinnaniiaigittoisiaasibinigeinbidiusijitiibiennialenianiiiinitiae 13

*Udall v. Tallman, 380 U.S. 1 (1965)............. seonensanandenensesiecaasacnesiee 9

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) ............ 10

CLS. o. Dela, GEE ES. Ge i irccetacrnstntesnisiniontnnistansiionvtiipens 12

Yetman v. Garvey, 261 F.3d 664 (7th Cir. 2001)............. 7, 10, 16

Statutes

SS UA, BF a isicinssihadcsiensasasicinipaicniniianapaemitts ined 19

TS UG, GF iiciecineniniinintismneaaisttainhscbiialegapibaniiaiinntaininiaiaag 10

SD CEA & Pep cies sesiinincininsecticihinetilatiinarnipliielalaibiaaaiiaatiah 17

i ie Fh ee sisinccseis ici icesdisisncecipieinslaenianiptinatcmitalonsonaediaiian 9

EF AEG, Be Oe ID etsceesinsnssctenerconntbintnnetiinloniniinige 6, 10

See RL aR ee 1, 4,6

BD TA, BR Oe asin csietisinistenajntainaietinadlecanciniacinavinininn 1

PC. C.F, SG, Be ee Cr Piictcrctnernccienicanesnencsnsnsssoniiniotaen 8

Regulations

BGG a BSA ericitchcendiniicieinciinieeisditaianeniddiaeiiain 19

*14 C.F.R. § 25.1523, 1525; Appendix D to Part 25,

CN RG cic sine tieshtbcsleninancsieanastll sine 15

a ie Oy ae I eininetectatnntcestnhiecinciheniiitdnsinnnennadioninsa 23,6

67 Fed. Reg. § 8455-8459 (Feb. 22, 2002)...........:.sssssssseseeeeees 8, 16

FAA System Safety Handbook § 3.4.........cssssssssssssssssessseesseees 12

Other Authorities

James Madison, Speech in the House of

Representatives (June 8, 1789), reprinted in Papers of

I: PUMiy TOU scinensnisisisatincnnitiossiionstissinenininledaiienseanandenmsdacnnonsitin 21

Notice of Proposed Rule-making, Maximum Age

Limitations for Pilots, 24 Fed. Reg. 5247 (Jun. 27,

BOTY siscsdietosciasialebsichissesncdahateitsesihcuabtenisignighiinsicstisticaiatniannanshaitine 11

Statement by 60 leading scientists including 20 Nobel

laureates, quoted in James Glanz, Scientists Say

Administration Distorts Facts, N.Y. Times, Feb. 19,

FD sisiinsccinicncanibsinnnntnesnapitsnisicinnhiiieninnbantassdhisemintesitbanestasisies 9

Aerospace Medical Association, The Age 60 Rule,

position paper (Jan. 15, 2004), at 16 0... ceessessssesseeeteeseeeeees 19

66a

GLOSSARY

ADEA Age Discrimination in Employment Act

ALPA Airline Pilots Association

FAA Federal Aviation Administration

NASA National Aeronautics and

Space Administration

NLRB National Labor Relations Board

OMB Office of Management and Budget

PPF Professional Pilots Federation

SEC Securities and Exchange Commission

BASIS FOR JURISDICTION

(A) According to 49 U.S.C. § 44701(f), the Federal

Aviation Administration (FAA) has statutory authority in

the public interest to grant the regulatory exemptions which

the pilots' petition requested in June 2002. The regulation

from which exemption is sought, 14 C.F.R. § 121.383(c), bars

any person from operating as a commercial airline

pilot beyond the age of 59. The pilots in this case are

experienced present and former commercial airline pilots

around age 60.

(B) According to 49 U.S.C. § 46110 (a), the United

States Court of Appeals for the District of Columbia Circuit

has statutory authority to grant review of an order of the

FAA.

(C) The pilots filed this petition for review by this

Court on October 30, 2003, less than 30 days after the FAA's

October 6, 2003 order. This filing satisfies the requirement of

49 U.S.C. § 46110 (a) that a petitioner must file a petition not

later than 60 days after the agency issues its order.

(D) This appeal is from a final order that disposes of

all the parties' claims.

67a

STATEMENT OF ISSUES

I. The Agency Decision in this case relied on information

that failed to meet Congressionally mandated standards.

Il. The Agency did not base its decision on substantial

evidence.

Ill. The record as a whole justifies rejecting the credibility of

findings made and relied upon in this Agency Decision.

IV. The Agency Decision was unwarranted in light of facts

subject to this Court's de novo review.

V. The Agency Decision was arbitrary, an abuse of

discretion, and lacking in good faith.

VI. The Agency Decision was contrary to equal protection of

the laws.

Vil. The Agency Decision was contrary to due process of

law.

VIll. The FAA should not automatically ground pilots age

59 and over who meet all applicable medical, performance,

and safety standards.

STATEMENT OF THE CASE

Dallas E. Butler and 11 other experienced

commercial airline pilots petitioned the Federal Aviation

Administration (FAA) for exemption from 14 C.F.R. §

121.383(c), a regulation that bars pilots from flying

commercial airliners after age 59. All of them either

currently operate as commercial air carrier plots or did so

until the age rule forced them out. Sixteen months after

receiving the June 10, 2002, petition, the FAA denied the

68a

petition for exemption. The pilots have petitioned this Court

for review of the agency decision.

STATEMENT OF FACTS

Twelve experienced pilots have requested exemption

from 14 C.F.R. § 121.383(c), commonly known as the age 60

rule. This regulation bars any person from operating as a

commercial airline pilot (ie, in Part 121 air carrier

operations) beyond the age of 59. These 12 pilots are

licensed and medically certified, fully trained, performance

qualified and experienced in flying such aircraft in air

carrier operations. Their names and birth dates are:

Dallas E. Butler April 25, 1938

Jeannie C. de Lamos February 9, 1942

Alan J. De Sa July 5, 1941

Tom Gamble January 13, 1945

Woodrow M. Hassinger October 24, 1940

Rudy Mack, Sr. February 9, 1941

Joe R. McCabe August 27, 193 8

Philip B. Nash April 4, 1938

Michael L. Oksner April 5, 1944

William M. Siegel September 6, 1943

Paul Turner III September 10, 1946

Arthur B. Ward April 27, 1937

The first FAA Administrator, Elwood Quesada, created the

age 60 rule in 1959 as a favor for his friend, C.R. Smith, the

Chairman of the Board of American Airlines, who had lost

labor disputes over the company’s unilaterally imposed age

60 retirement policy. J.A. 17-21 (Petition at 10-14). FAA in-

house lawyers from the beginning stated privately that there

was no evidence that could provide any "scientific or factual

justification" for the age regulation. J.A. 21-22 (Id. at 14-15);

J.A. 150 (Exhibit Q). The FAA purported to justify the

establishment of the rule on the basis of "general

69a

knowledge" that there was an inverse relationship between

pilot age and skill. J.A. 23 (Id. at 16); J.A. 152 (Exhibit S).

Over the years the agency has refrained from collecting,

analyzing and publishing data which would show that there

never was any safety basis for the rule. ].A. 29-48, 64 (Id. at

22-41, 57).

In the 1980s the National Institutes of Health refuted

assertions that there was any medical justification for the

rule. J.A. 30-34 (Id. at 23-27). The FAA nevertheless persisted

in promoting flawed statistical "studies" which grossly

distorted data to create a false impression that pilots over

age 59 were less safe. J.A. 30-31, 64-27 (Id. at 23-24, 57-65);

J.A. 156 (Exhibit U). In fact, "fail-safe" procedures in multiple

crew airliners eliminated risk of accident due to a pilot's

medical incapacitation regardless of age. J.A. 48-56 (Id. at 41-

49). The FAA Deputy Administrator conceded the

effectiveness of these "fail-safe" procedures in congressional

testimony. J.A. 56-57 (Petition at 49-50).

The Federal Air Surgeon privately acknowledged, in

writing, that the real basis for the age rule was economic,

not medical. J.A. 62 (Id. at 55); J.A. 158-161 (Exhibit CC), He

and other FAA officials conceded, in a private Capitol Hill

meeting, that the sole purpose of the age rule was to serve

economic interests of the airline industry, not to ensure

medical or safety concerns. J.A. 62-63 (Id. at 55-56); J.A. 162-

175 (Exhibits DD, EE, FF).

The United States is virtually the only major

commercial air power in the world that mandates retirement

of airline pilots at age 60. J.A. 76-77 (Id. at 69-70).

The FAA has statutory authority to grant the

requested exemption. 49 U.S.C. § 44701(f). And it has a

statutory duty to decide the matter on the basis of the public

interest in air safety and security, national defense and

70a

commercial aviation, and avoidance of discriminatory and

deceptive practices. J.A. 10-12 (Id. at 3-5)

SUMMARY OF THE ARGUMENT

Allowing qualified commercial airline pilots an

exemption to fly past age 59 is consistent with air safety

because the age 60 rule has never had anything to do with

safety. The FAA's sole motivation for its no-exemptions

policy is its predisposition to perform economic favors for

interests (i.e., the airlines) that the agency is supposed to

regulate. The policy of denying all exemptions based on

data distortions and loaded studies does not measure up to

congressionally mandated standards.

Basing exemption denials on age stereotype and

unscientific misrepresentation fails the test of substantial

evidence. The record as a whole, including internal FAA

documents revealing economic favoritism and ethical

blindness, shows that the agency is not a credible source of

findings with respect to this issue. This Court is entitled to

undertake a de movo review of the decision by an

administrative agency that has undermined its own

credibility. This review should take into account what is

known about the safety performance of the most

experienced United States pilots, such as the 12 requesting

exemption in this case, as well as the policies and practices

of other countries around the world. The agency

demonstrated lack of good faith because it refused to admit

past misconduct, and then unreasonably delayed and

distorted the petition by these 11 men and one woman who

seek to serve the public interest by continuing to fly.

Unbending age discrimination violates equal protection

when it is not a bona fide occupational qualification.

Arbitrary age 60 retirement of men and women who

continue to satisfy all objective criteria for the

7la

responsibilities they perform is likewise inconsistent with

due process.

Now more than ever, the nation needs its most

experienced, reliable pilots in command of commercial

airliners. Those who meet all of the relevant standards and

who request exemption from the age rule should be allowed

to continue to fly, for the sake of the flying public.

ARGUMENT

THE AGENCY DECISION IN THIS CASE

RELIED ON INFORMATION THAT FAILED

TO MEET CONGRESSIONALLY MANDATED

STANDARDS.

In this case, 12 experienced airline pilots around age

60 requested exemption from the age 60 rule mandating

their retirement. 14 C.F.R. § 121.383(c). Congress expects that

some pilots will receive exemptions. Rombough v. FAA, 594

F.2d 893, 897 (2nd Cir. 1979). Still, the FAA policy denies

exemptions to all such petitioners. The pilots’ petition

established that the requested exemptions would be

consistent with air safety, and the FAA age rule never

involved safety. Economic favoritism for airlines is the only

motivation for the agency's no-exemptions policy. The FAA,

however, is supposed to regulate in the public interest. The

agency decision below did not rebut, but merely ignored the

factual history of the age 60 rule's economic favoritism. J.A.

12-13, 17-18 (Petition at 5-6, 10-16); J.A. 106-107, 133-144

(Exhibits C, K, M). The denial violated the agency's statutory

duty to base exemption decisions on the public interest in

air safety and security, national defense, domestic

commercial aviation, nondiscrimination, and good-faith

dealing with other agencies. 49 US.C. §§ 4470I(f) and

40101(a) et seg. (The Petition itemizes the statutory

mandates.) /.A. 10-12 (Petition at 3-5). The agency's assertion

72a

that the pilots' exemption petition did not address these

standards is simply untrue. J.A. 190 (Decision at 8).

The agency decision ignored evidence that the FAA

based the policy on false and misleading safety data. ].A. 30-

31, 64 (Petition at 23-24, 57). The agency's assertion that the

pilots’ challenge to the basis of its policy does not meet some

unspecified requirements for exemption is gratuitous. ].A.

191 (Decision at 9). The decision ignored evidence proving

that the exemptions would maintain and/or improve air

safety concerning pilots' medical screening and fitness, J.A.

57-59 (Petition at 50-52); effectiveness of performance

testing, J.A. 59-60 (Id. at 52-53), the "fail-safe" two-pilot

communication rule, J.A. 48-57, 61 (Id. at 41-50, 54), and

positive experience-safety correlation. J.A. 59 (Id. at 52).

The decision disregarded evidence that the age

policy did in the past, and may in the future, harm military

aviation and small communities’ air service. J.A. 78-80 (Id. at

71-73).

The decision failed to address the agency's violation

of the Information Quality Act and pertinent Office of

Management and Budget guidelines. The agency was aware

of deficiencies in the Flight Time Study on which it publicly

relied. Yetman v. Garvey, 261 F.3d 664, 677 (7th Cir. 2001).

Analytical flaws, fallacies and falsehoods of that study are

common knowledge in the scientific community. J.A. 64-70

(Petition at 57-63). The agency continued relying on this

study notwithstanding the fact that it has been discredited.

].A. 65-66 (Id. at 58-59). The decision dismissed the

argument that the FAA intentionally misrepresented data

concerning various studies, including the Flight Time Study,

saying that Baker v. FAA, 917 F.2d 318 (7th Cir. 1990), as

well as Yetman disposed of that claim. J.A. 193 (Decision at

11). The FAA, however, cannot rely on flawed studies that

violate the Information Quality Act's guidelines. Treasury

73a

and General Government Appropriations Act for Fiscal Year

2001, Pub. L. No. 106-554, §515 (2001). In reviewing the

agency decision, this Court must consider the relevant

mandatory federal data quality standards. Judicial review of

an administrative order must address evidence that the

agency ignored serious consequences and _ realistic

alternatives. (Cf. Izaak Walton League of America v. Marsh,

655 F.2d 346, 369 n. 56 (D.C. Cir. 1981). The Office of

Management and Budget (OMB) promulgated Information

Quality Act final guidelines that govern federal agencies

that maintain and disseminate analyses of health or safety

risks having important public policy or private sector

impact. 67 Fed. Reg. 8455 (Feb. 22, 2002). These guidelines,

calling for "additional quality checks beyond peer review,"

set analytic standards of transparency, replicability and

robustness. Further, according to the guidelines, "to the

degree that an Agency action is based on science," an agency

such as the FAA must use:

(I) the best available, peer-reviewed science

and supporting studies conducted in

accordance with sound and objective

scientific practices; and

(ii) data collected by accepted methods or

best available methods (if the reliability of the

method and the nature of the decision

justifies use of the data).

Id. at 8455-8458. The standards apply to "every step of an

agency's development of information, including creation,

collection, maintenance, and dissemination." Id. at 8459. As

the guidelines provide, "Otherwise, the agency should not

disseminate any of the studies that did not meet the

applicable standards." Id. at 8467.

74a

The Court must defer to OMB's straightforward

guidelines interpreting the data quality statute. See Udall v.

Tallman, 380 U.S. 1 (1965). The policy in this Circuit is clear.

“Our review of an agency's procedural compliance with

statutory norms is an exacting one." Natural Resources

Defense Council, Inc. v. SEC, 606 F.2d 1031, 1048 (D.C. Cir.

1979). Unfortunately, the Executive Branch in the past few

years has "systematically ... misrepresented scientific

knowledge and misled the public about the implications of

its policies." The information quality guidelines attempt to

remedy this problem.

The FAA no-exemptions policy and its denial of the

petitioners' request relied on data distortions in flawed

studies that obviously do not meet the standards that the

Information Quality Act guidelines mandate.

If the falsity of the agency's age-safety

representations to House and Senate committees as well as

the Office of Technology Assessment and the Government

Accounting Office had been timely exposed, the agency

could have faced criminal prosecution. The federal penal

codes provide that:

whoever, in any matter within the

jurisdiction of the executive, legislative, or

judicial branch...knowingly and willfully -

(1) falsifies, conceals, or covers up by any

trick, scheme, or device a material fact; (2)

makes any materially false, fictitious, or

fraudulent statement or representation; or (3)

makes or uses any false writing or document

knowing the same to contain materially false,

fictitious, or fraudulent statement or entry;

1 Statement by 60 leading scientists including 20 Nobel laureates,

quoted in James Glanz, Scientists Say Administration Distorts Facts, N.Y.

Times, Feb. 19, 2004, at A21.

75a

shall be fined under this title or imprisoned

not more than 5 years, or both.

18 U.S.C. § 1001.

The agency's decision and the information on which

the agency based its decision failed to meet congressionally

mandated standards concerning the quality and veracity of

data and the public interest.

Il. THE AGENCY DID NOT BASE ITS DECISION

ON SUBSTANTIAL EVIDENCE.

The substantial evidence test, 5 U.S.C. § 706(2)(E),

requires the agency to decide on the entire record. Universal

Camera Corp. v. NLRB, 340 U.S. 474, 487-489 (1951). This

test requires the reviewing court to weigh the evidence and

determine that the record contains such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion. Steadman v. SEC, 450 U.S. 91 (1981). A court has

little difficulty reversing a decision totally unsupported by

credible evidence. See Dept. of Transportation, Federal

Highway Admin. v. I.C.C., 733 F.2d 105 (D.C. Cir. 1984);

Port Norris Exp. Co., Inc. v. LC.C., 687 F.2d 803 (3rd Cir.

1982).

The deciding official must give the evidence weight

to the extent that she or he believes or presumes it to be true.

The FAA has a statutory duty to avoid deceptive practices.

49 U.S.C. § 40101(a)(9). The public interest demands that the

agency meet a standard of honesty in making and defending

its decisions. When the government deceives the people, it

violates fundamental public policy. See New York Times Co.

v. U.S., 403 U.S. 713 (1971). Agency misrepresentation of fact

fails the test of substantial evidence.

76a

The agency decision below quoted the Seventh

Circuit as saying in Yetman, 261 F.2d at 677, that petitioners

there did not establish how the FAA's awareness of Flight

Time Study deficiencies impacted the Court's substantial

evidence inquiry. J.A. 193-194 (Decision at 11-12). There is a

nexus, however, between agency falsification of fact and

judicial review of substantiality. When decisive factors in

the agency's rejection of a petition rest on distortion and

misrepresentation, the evidentiary basis lacks even minimal

substance. The test does not oblige this Court to defer to an

agency when the latter intentionally or recklessly relies on

false information.

The petitioners in this case extensively documented

that the agency's policy of refusing all age exemption

requests relied on false representations that the mandatory

retirement rule was based on safety considerations.

Reviewing the rule's origin and history and the agency's

defense of the rule, the petition proved that FAA officials

have misrepresented the rule's purpose and effect. The facts

establish that the Administrator, Elwood Quesada, created

the age rule in 1959, as a personal favor for an airline

executive who had lost labor disputes over an airline

retirement policy. Notice of Proposed Rulemaking,

Maximum Age Limitations for Pilots, 24 Fed. Reg. 5247 (Jun.

27, 1959). Since then, the FAA has rigidly enforced the

policy in the mistaken belief that exemptions would impose

undue cost and inconvenience on the airlines. The petition

also showed how the agency obstructed discovery of

evidence relevant to the retirement age policy.

The decision's allegation that "detrimental age

decrements" justified denying the petition further illustrates

that the agency based its decision on stereotype, not science.

].A. 191 (Decision at 9). Rather than addressing the evidence

of its own economic favoritism (including internal agency

documents and statements by FAA officials that the pilots

77a

presented as exhibits), the decision instead relied on a

union's blatantly false assertion that the petition offered no

evidence that the age rule was a favor to airline executives,

].A. 188 (Id. at 6).

The decision explained that the Yetman court found

that the petitioners there did not meet their burden to

provide strong evidence that experience outweighs danger

of age-related sudden and subtle incapacitation. J.A. 194 (Id.

at 12). But the decision below ignored the petitioners

introduced this necessary evidence, J.A. 48-57, 59-71

(Petition at 41-50, 52-54).

An arbitrary decision is the inverse of substantial

evidence. The question of "whether the administrator was

arbitrary must be determined on the basis of what he had

before him when he acted...." Association of Data

Processing Service Organizations, Inc. v. Board of

Governors, 745 F.2d 677, 684 (D.C. Cir. 1984). In 1971 the

agency, through its own negligence, lost the FAA docket

concerning creation of the age 60 rule. In the absence of the

true record, subsequent cases concerning the age rule relied

on the agency's ex post facto rationalizations. However, in

litigation under the Freedom of Information Act (FOIA),

petitioners discovered that the lost docket was in the files of

a former Federal Air Surgeon. Haley, Bader & Potts v. FAA,

No. 85-1943, (D.C.D.C. filed Jun. 15, 1985) (final order Jun.

27, 1985). Petitioners included the "lost" docket and its

documents as exhibits to the petition. J.A. 106-151 (Petition

Exhibits C, D, E, F-1, G, H, I, J, K, M, N, O, Q). The decision

below, however, denied these records’ existence, as the

agency did for all these years. The agency's failure to

consider this relevant and critical evidence that petitioners

introduced was arbitrary and capricious.

An agency must follow its own rules. U.S. v. Nixon,

418 U.S. 683, 696 (1974). The FAA sets forth criteria for risk

78a

assessment in its System Safety Handbook, which states:

"Assessment of risk is made by combining the severity of

consequence with the likelihood of occurrence." FAA

System Safety Handbook, § 3.4. The FAA, however, did not

apply its analytical method to the petitioners’ evidence

establishing that the likelihood of an accident resulting from

the exemptions requested here was essentially zero.

(Petition at 41-54). The agency's failure to follow its own

rules and instead denying the pilots' exemption requests

was also arbitrary and capricious.

For the reasons stated above, the FAA's decision fell

short of the substantial evidence standard.

Ill. THE RECORD AS A WHOLE JUSTIFIES

REJECTING THE CREDIBILITY OF THE

AGENCY'S FINDINGS.

The question of credibility of witnesses and the

weight of their testimony is one for the trier of facts. To

determine credibility, however, a reviewing court cannot

rule mechanically. If the reviewing court does so, it defers to

the findings that arise from conflicting evidence.

- Accordingly, when the record as a whole undercuts the

agency's credibility, a court may reject the administrative

findings. Town & Country Elec., Inc., 106 F.3d 816 (8th Cir.

1997); NLRB v. Payless Cashway Lumber Store, Inc., 508

F.2d 24 (8th Cir. 1974). A court may also find lack of

credibility when the agency bases its ruling on improper or

irrational criteria. Breeden v. Weinberger, 493 F.2d 1002 (4th

Cir. 1974).

FAA studies supporting the no-exemptions age

policy lack factual credibility. Yet, the decision here relied

extensively on these studies in analyzing the policy. The

petition fully documented the agency's practice of

disseminating and relying on data aviation experts and the

agency know are distorted. J.A. 7 et seq., 156 (Petition,

79a

Exhibit U). The decision's patently false statements of fact

further undermine credibility. The decision relied on FAA

published falsehoods about pilot age-safety data.

Further analysis of the decision underscores the lack

of credibility. First, the decision contains the preposterous

statement that the petitioners did not provide "any

information" substantiating exemption. J.A. 191 (Decision at

9). The amended petition, however, contained 81 pages of

factual narrative, 295 footnotes and 39 exhibits supporting

exemption. Second, the decision claimed that the petitioners

did not introduce any new, significant arguments and/or

information from that of prior exemption or rulemaking

petitions. J.A. 191 (Id.) To the contrary, the petition

presented significant, new arguments and information

(including the internal FAA docket never before seen in an

agency or court proceeding).

Third, the decision disregarded the petition's

extensive number of exhibits proving that the age rule was

an act of economic favoritism with no medical basis. The

decision instead asserted that the petitioners did not base

their economic favoritism argument on facts. J.A. 191 (Id.)

To reach this conclusion, the decision simply ignored the

factual history of economic favoritism contained in the

petition. J.A. 12-13, 17-18 (Petition pp. 5-6, 10-16); J.A. 106-

107, 133-144 (Exhibits C, K, M). The decision falsely implied

that Frank Austin, M.D., was not the Federal Air Surgeon

when he admitted that the real reason for the age policy was

economic, not medical. J.A. 62 (Petition at 55); J.A. 158-161

(Exhibit CC). Yet the decision did not dispute that Dr.

Austin, Deputy Air Surgeon Jon Jordan (the current Federal

Air Surgeon) and other officials admitted that the age policy

was merely an economic favor for the airlines and had no

medical basis. J.A. 62-63 (Id. at 55-56).

80a

The decision ignored evidence that the agency

deliberately avoided collecting and analyzing accessible

data proving that the age rule had no medical or safety

basis. J.A. 29-48, 59-61, 64 (Id. at 22-41, 52-54, 57). The

decision ignored scientific studies refuting the FAA age rule.

J.A. 15-17, 28 (Id. at 8-10, 21). Lastly, the decision discounted

the evidence establishing that the FAA refused to

acknowledge that regular pilot performance and medical

checks prevent risk. The decision simply brushed aside the

evidence that the FAA repeatedly evaded the truth.

The decision claimed, without any substantiation,

that multiple pilot crews do not necessarily provide a

redundant safety mechanism because one pilot might not

catch and correct the other pilot's infirmity in time. J.A. 194

(Decision at 12). To reach this conclusion, the decision

discounted the "fail-safe" two-pilot communication rule. /.A.

48-57 (Petition at 41-50). The - decision ignored the

requirement that commercial airplane design ensures that

one pilot could safely fly the plane when the other became

incapacitated. 14 C.F.R. § 25.1523, 25.1525 (2004); Appendix

D to Part 25, (b)(9), (10), (c).

Fourth, the relevant and newly-found historical

evidence made no difference to the agency. In fact, the

decision actually claimed that petitioners did not present

any "recent" evidence, i.e., evidence less than a decade old.

J.A. 194 (Decision at 12). In actuality, the petitioners

presented the most up-to-date evidence (current to the date

of the petition) concerning agency policies and practices,

congressional inquiries, industry studies, international

developments, science and legal studies, and petitioners’

qualifications.

The decision asserted, "Finally, petitioners claim that

currently there is a pilot shortage...." J.A. 196 (Id. at 14). The

petitioners made no such claim. The decision also stated that

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petitioners claimed that modifying the age rule would

adversely affect the numbers of pilots leaving military

service or those in the airline industry. J.A. 197 (Id. at 15).

While such an adverse impact has occurred at times, J.A. 78-

79 (Petition at 71-72), a reasonable policy of granting age

exemptions will prevent future pilot shortages impairing

regional airlines and the Armed Forces. Despite these

misrepresentations, the decision conceded that rigidly

enforcing the age 60 rule would, in the future, likely harm

military aviation and regional and charter lines serving

small and rural communities. ].A. 79-80 (Id. at 72-73).

The decision pointed out that age exemption

petitions had been unsuccessful in seven cases. Id. at 7,

citing Yetman, 261 F.2d at 664; PPF v. FAA, 118 F.3d 758

(D.C. Cir. 1997); Aman v. FAA, 856 F.2d 946 (7th Cir. 1988);

Keating v. FAA, 610 F.2d 611 (9th Cir. 1979); Rombough, 594

F.2d at 893; Gray v. FAA, 594 F.2d 793 (10th Cir. 1979); and

Starr v. FAA, 589 F.2d 307 (7th Cir. 1978). Those petitioners

litigated all these cases after the FAA reportedly "lost" the

entire age 60 rule docket. None of these cases presented the

docket evidencing agency misrepresentation and fraud as

the instant case does. Further, none of these cases relied on

scientific data integrity criteria which the 2002 Information

Quality Act guidelines imposed. 67 Fed. Reg. 8455-8458

(2002). The FAA rendered the instant decision in 2003.

The Seventh and Tenth Circuits warned that courts

could overturn exemption denials if petitioners established

that the FAA failed to consider effects of medical technology

advances upon a mandated age 60 cutoff. Starr at 589 F.2d

314; Gray at 594 F.2d 795. According to this same line of

reasoning, overturning denials is essential when evidence

establishes that the FAA's medical argument for its age

policy lacks scientific basis. Given the petition's evidence

about the lack of medical necessity, this Court should

overturn the age exemptions denial here. Such action is

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inescapable given the evidence that the FAA knowingly

misled the international community, J.A. 70-71 (Petition at

63-64), as well as other federal agencies, courts, Congress,

the press and the people about the age 60 rule.

Significantly, the decision below did not dispute that

FAA lawyers knew from the rule's inception that no

scientific studies or facts ever justified the age rule. J.A. 22

(Petition at 15); J.A. 150-151 (Exhibit Q).

Thus, the record as a whole shows that the FAA

lacks credibility in justifying the age 60 rule and no

exemptions policy.

IV. THE AGENCY DECISION WAS UNWARRANTED IN

LIGHT OF FACTS SUBJECT TO THIS COURT'S

DE NOVO REVIEW UNDER THE APA.

The Administrative Procedures Act (APA)

authorizes de novo review of agency action when the action

is adjudicatory in nature and the agency fact finding process

is inadequate. 5 U.S.C. § 706(2)(F). In the absence of specific

statutory authorization, a court must base de novo review on

the agency's administrative record. Gables by the Sea, Inc. v.

Lee, 498 F.2d. 1340, (5th Cir. 1974); Sierra Club v. Hardin,

325 F. Supp. 99 (D.C. Alaska 1971).

The decision pointed out that several courts had

upheld "the basis of the [age 60] rule," J.A. 189 (Decision at

7), citing PPF v. FAA, 118 F.3d 758 (D.C. Cir. 1997);

O'Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974); ALPA v.

Quesada, 276 F.2d 892 (2d Cir. 1960). These cases are

inapposite. They relied on the FAA safety representations,

which, as this record proves, fabricated material facts.

Foreign courts have rejected the age rule based on

the same type of evidence that petitioners introduced. J.A.

77 (Petition at 70, n. 276). Taking into account court

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decisions in other nations is appropriate, as the United

States Supreme Court indicated in Lawrence v. Texas, 123

S.Ct. 2472, 2474, 2481, 2483 (2003). This Court may consider

these rulings because:

When a case is properly before the court for a

trial de novo, the court must reach its own

factual and legal conclusions based on the

preponderance of the evidence, and should

not limit its consideration to matters

previously appraised in the administrative

proceedings.

Modica v. U.S., 518 F.2d 374, 376 (5th Cir. 1975).

An American court has not considered foreign precedent.

Petitioners' evidence establishes that the age 60 rule is not

only out-dated, but out of touch with the world. Europe,

Canada, Australia, Japan and other nations do not follow

the FAA's age 60 policy.

The evidence establishes even more incongruity

concerning the age 60 rule. First, the rule does not apply to

federal agency pilots, including FAA pilots, who fly

passenger jets, sharing the skies and airports with

commercial airliners. Second, the rule does not apply to

military pilots, including those flying the President on Air

Force One. Third, the rule does not apply to test pilots or

NASA astronauts. Therefore, there is no credence in the

FAA's. position that the age 60 rule promotes the

Congressionally-defined public interest, protecting the

flying public by licensing the ablest, safest pilots.

After more than two years of study, the Aerospace

Medical Association has confirmed that all known medical

and safety data still do not support airline pilot restrictions

based solely on age. J.A. 293 et seq., 308 [Aerospace Medical

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Association, The Age 60 Rule, position paper (Jan. 15, 2004),

at 16].

Vv. THE AGENCY DECISION WAS ARBITRARY, AN

ABUSE OF DISCRETION, AND LACKING IN

GOOD FAITH.

Respect for administrative discretion does not mean

deference to administrative misconduct. As this Court has

held in another context, "an agency action which is

supported by the required substantial evidence may in

another regard be ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law’." Assoc.

of Data Processing Service Organizations, Inc., 745 F.2d at

683.

The facts discussed above reveal that the FAA

decision here was arbitrary and an abuse of discretion,

within the meaning of 5 U.S.C. 706(2)(A). The agency's bad-

faith conduct in the present case includes its knowing

reliance on falsified data, misrepresentation of the record

and delaying tactics. The FAA made no effort to meet the

120-day target date that 14 C.F.R. § 11.63 prescribes for

deciding an exemption petition. Without notice, explanation

or excuse, the agency delayed its decision for 16 months.

The agency did not act until after the Professional Pilots

Federation website reported that the petitioners were about

to file an unreasonable-delay action against the agency in

United States District Court.

The misrepresentation and fraud described in parts I

through IV above have interfered with airline passengers’

right to travel in aircraft flown by the most experienced,

safest pilots available.

The Court should overturn this decision, based on a

record of such misconduct.

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VI. THE AGENCY DECISION WAS CONTRARY TO

EQUAL PROTECTION OF THE LAWS.

Government action that defeats its own supposed

purposes cannot survive the scrutiny associated with equal

protection - it even fails the test of rationality. Moreover, for

constitutional issues, de novo review is appropriate. Agosto

v. Immigration and Naturalization Service, 436 U.S. 748,

753-754 (1978). A regulation that purports to be a

transportation safety measure, but which in fact has no

reasonable relation to safety, is unenforceable in light of

countervailing national interest, according to United States

Supreme Court precedent. Southern Pacific Co. v. Arizona

325 U.S. 761 (1945). The actual effects of the FAA's automatic

rejection of all age exemptions do not support, and appear

to harm, the policy's stated purpose of public safety and its

unstated purpose of rendering an economic favor for airline

companies. A discriminatory regulation that disserves its

Own purpose cannot mass constitutional muster under

rational basis scrutiny.

Absent the most compelling reasons to the contrary,

equal protection bars discriminatory treatment of

individuals similarly situated. See Bush v. Gore, 531 U.S. 98

(2000). Discrimination based on age bias and bogus science

is inconsistent with equal protection

The FAA ordinarily permits alcoholics and cardiac

patients under 60 to prove safety/ ability through additional

medical and performance testing, even where data shows

these groups have a high and unpredictable rates of relapse.

Yet the agency incongruously denies a similar right to pilots

with more than 30 years of good medical and performance

records, and who the FAA concedes (due to its own

systemic controls) to be the super select and "essentially

purged of disease." ].A. 57-61 (Petition at 50-54). Yet, the

FAA automatically treats pilots with good performance

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records and who are fit and healthy after age 59 as if they all

were disabled.

The FAA's no-exemptions policy violates equal

protection.

Vil. THE AGENCY DECISION WAS CONTRARY TO

DUE PROCESS OF LAW.

Understanding the vital the role of the judiciary in

our constitutional scheme, James Madison foresaw that:

independent tribunals of justice will consider

themselves in a _ peculiar manner the

guardians of those rights; they will be an

impenetrable bulwark against every

assumption of power...to resist every

encroachment upon rights....

James Madison, Speech in the House of Representatives

(June 8, 1789), reprinted in Papers of Madison, XII, 206.

Justice Harlan understood that:

the full scope of the liberty guaranteed by the

Due Process clause...is not a series of isolated

points.... It is a rational continuum which,

broadly speaking, includes a freedom from oy

all substantial arbitrary impositions and

purposeless restraints....

Poe _v. Ullman, 367 US. 497, 543 (1961) (Harlan, J.,

dissenting).

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And this Court has explained:

The stringency of our review, in a given case,

depends upon analysis of a number of

factors, including the intent of Congress, as

expressed in the relevant _ statutes,

particularly the agency's enabling statute; the

needs, expertise, and impartiality of the

agency as regards the issue presented; and

the ability of the court effectively to evaluate

the questions posed. Only through such a

flexible approach can we _ review the

multifarious types of agency actions as

responsible participants in an enterprise of

practical governance.

Natural Resources Defense Council, 606 F.2d at 1050.

The Court must weigh the agency's statutory duty to

base decisions on fact, not fiction; on safety, not stereotype;

and to comply with the Constitution's mandate of due

process. A regulatory decision based on bias and falsehood

is inconsistent with due process requirements. Although the

FAA has statutory power to decide who receives a license to

fly, the agency cannot exercise this power in an arbitrary or

irrational way.

When the FAA denied the petitioners’ exemption

request on the basis of myth instead of fair consideration of

facts, the agency denied the petitioners due process.

Vill. THE FAA SHOULD NOT AUTOMATICALLY

GROUND 59-YEAR-OLD PILOTS WHO MEET

ALL APPLICABLE MEDICAL, PERFORMANCE

AND SAFETY STANDARDS.

The decision below did not dispute the petitioners’

observation that enlightened executives of major United

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States airlines said they would welcome a change in the

FAA age 60 policy. It did not d

This text is long and has been trimmed here. Open the source document for the complete record.