Amicus Curiae Brief — Butler v. Federal Aviation Administration

In CG) he 2005

Supreme Court of the Cited Peta

+

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,

Vv.

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

a

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE AND

BRIEF OF AGE60RULE.COM (SAMUEL D. WOOLSEY, J.D.)

AS AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

+

Anthony P. X. Bothwell

Counsel of Record

LAW OFFICES OF

ANTHONY P. X. BOTHWELL

350 Bay Street

Suite 100 PMB 314

San Francisco, California 94132

(415) 370-9571

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

TO THE COURT AND ALL PARTIES:

Through counsel, Movant, Age60Rule.com (Samuel D.

Woolsey, J.D.), requests leave to file an amicus curiae brief in

support of the grant of certiorari, in the above-captioned

case. Movant Woolsey is the sole author of this brief.

Following careful review, but without editorial or other

input, Anthony P.X. Bothwell (Bothwell) counsel of record

for Age60Rule.com, submits on behalf of Movant. Bothwell

also is counsel of record for Dallas E. Butler, et al., the

Petitioners (with the consent of both Movant and

Petitioners, there being no conflict of interest).

Movant Woolsey began investigating and reporting on the

regulatory, legal, medical, and factual history of the FAA's

age 60 rule in the early 1990s. For years, Woolsey has been

approached by interested parties from throughout the legal,

medical, media, and aviation communities, including some

from the FAA, seeking information and expert advice on

issues related to, and the FAA's decades-long defense of, the

rule. In 2001, Woolsey created Age60Rule.com as a non-

profit educational and research resource, together with the

related internet website, www.age60rule.com, to more easily

disseminate his substantial volume of data and archived

materials to an increasingly interested and growing public.

The amicus curiae brief submitted here offers a cogent and

original analysis pertaining to the threshold issues this Court

will face before deciding on the grant of certiorari as

requested.

Respondent Federal Aviation Administration, through the

Solicitor General, has withheld permission to file this brief.

Although the Court generally disfavors motions to file

amicus briefs where any party has withheld consent,

undersigned counsel believes that the attached brief will be

uniquely helpful to the Court in evaluating the request

pending in this case.

April 6, 2005

ANTHONY P. X. BOTHWELL

Counsel of Record

350 Bay Street, Suite 100PMB314

San Francisco, CA 94133-1947

Tel. (415) 370-9571

<a aa aa

i

TABLE OF CONTENTS

Page

TABLE OR AUT IRORIT TES casa .n.ccnscccncoccececsvascossssccscsacscescesense ii

INTEREST OF AMICUS CURIAE ..0.....ccccccccscsccsssssecsssssssssseeceees 1

STATEMENT OF THE ISSUES ..00.0........cccscsccsccsscseccscsssecsessccesees 1

SUMMARY OF THE ARGUMENT ..u.0.......cccssesssccsecssscccessecesees 1

A. JUDICIAL OVERSIGHT IN THE MODERN

AMERICAN ADMINISTRATIVE STATE .0.0.o..csccccceseeseece. 2

1. ALPA v Quesada: Deference to Advocacy..........10..0-- 3

2. ALPA v Quesada: The 2nd Circuit as

SN isisithesisthidithicanssssthisssinlpicnoenmcstndbuisbibsitecurisccecsaien: 9

3. The 2nd Circuit's Second Failure in Oversight......... 11

B. THE LEGACY OF UNBRIDLED DEFERENCE.............. 12

|, 12

Ian ID sc essaninsisdasessccniniSborintalaerdiasiscieust dys 16

he Mra TaN a nnn csccaecassascstscesesecszansosnen 18

I lenceria lcbit arc kaedhcbbchoabinth naradncadaeetobs cass: coue 19

ll

TABLE OF AUTHORITIES

Page(s)

Cases:

ALPA v Quesada,

182 F. Supp. 595 (S.D. N.Y. 1960);

276 F.2d 892 (2d Cir. 1960);

yw Ly 1 Re.» IORcn ane a ne passim

Aman v FAA,

fe 7, 2 Ae, Nene M TENN 15,18

Baker v FAA,

ee ee as Pi istnssianbadccnisoniniesndigusnisinnts 17, 18

Brogan v US,

Re I cinta as sasisinsticandsnieeidabesieniidbacandiatnenvaniaslaabis 18

Delta Air Lines v U:S.,

490 F. Supp. 907 (N.D. GA 1980)...................s..sessesssoee 14,15

Marbury v Madison,

Be Ce BO ee cnspscnsnicediicasehcssicn aniempeiabicintvestinelcdbasilastismiacactiaiies 2

O'Donnell v Shaffer,

Be is il: Br concn cdanesndasdetindicicdeinnieai 12

Starr v FAA,

589 F.2d 307, 312-313 (7th Cir. 1978)..............ssecccesseees 12, 18

Yetman v. Garvey,

261 F.3d 664 (7th Cir. 2001)......cecccseccsssecssessesseecessessseees 18

ee

Statutes:

Be OAs: GH Me cians nich lncecsigctascntsidbiaiesateaaubldegaaseicie 18

SP SARA. FH PD sinisinaciididnisinstiiviicstestcneteaaissnabin cas 18

Be Ri F Be <itnciatnratestcssliiaiiainpibdeualannaseslin ci ia ieee

Rule:

Pe. I. S50e. FP Fe osciccenisiincdssicaeamiuntiietaledaaccgime ee 9

Other Authorities:

24 Fed. Reg. 2257 (Mar. 21, 1959) NPRM, Physical

Standards for Airmen, Medical Certificates........cccccccecc06.-... 10

| 24 Fed. Reg. 7309 (Sep. 11, 1959) Final Rule, Physical

) Standards for Airmen; Medical _ Certificates,

Amendment to Medical Standard’........cccccccccccccoccceccccccccccceeees 10

Age Discrimination Against Airline Pilots; Hearing

before the Select Committee On Aging, House of

Representatives, 96th Cong., 1st Sess. March 21, 1979.

Cotman, PU: Bi Bis isc ccnscsssissinneansenieniiiasdeaiuneiiioe cee 14

RE ie Mee ae PL RRR di MNRAS on

Airline Pilot Age, Health and Performance: Scientific

and _ Medical Considerations, Report of a Study by

the Committee to Study Scientific Evidence Relevant

to Mandatory Age Retirement for Airline Pilots,

Institute of Medicine, National Academy of Science,

Washington, C0, Mime PIB ai cnccicsnisinsicamaceieasi 13

ae

iv

Better Management Needed of Medical Research on

Aging, 38th Report by the Committee on

government Operations, 89th Cong., 2d. Sess.,

September 26, 1966. H.Rep. 2080, Appendix B (FAA

GRRE ccccccccssnnsssnsccesnrsecniticigeesebiinmeniaidiieaanandiadieainiatateae 14

Booze CF, Characteristics of Medically Disqualified

Airmen Applicants During Calendar Year 1971, FAA

Office of Aviation Medicine, AM-74-5, May 1974................. 14

Cong, Rac. Asam, 4, TSB G8 LGBT ccccsessscssssessssssnssntcnssenmscnssentons 2

FAAct Sec. 100Gfa) (72 Stat, 7IB) sccccscesssecescsscessveesnnssitnesenmnenabsil 2

Federal Aviation Act of 1958, H.R. No. 2360, 85th

Cong., 2d Sess. (1958), reprinted in US. Code &

Cong. & Admin. News, 3741 et seq. (P.L. 85-726) ............00000: 2

Flight Safety Foundation, Inc., FCF/CAA Medical

Study (Report No.1), Fhysical Qualifications of Air

Traffic Control Personnel, New York, 21 Feb. 1958............. 10

Flight Safety Foundation, Inc., FCF/CAA Medical

Study (Report No.2), Medical Aspects of Civil

Aviation, New York, 31 Mar. 1958 .............:cssssesseeseeseeees 10, 11

GAO Fact Sheet, Aviation Safety, Information on

FAA's Age 60 Rule for Pilots, GAO/RCED-90-45FS,

SOU CRIN TOD kcceveccsstsenicasiaeetuictatnticinudaaiedaie eels 15, 17

Golaszewski RS, The Influence of Total Flight Time,

Recent Flight Time and Age on Pilot Accident Rates,

Acumenics Research and Technology, Inc., Bethesda,

Maryland, Order No. DTRS57-83-P-80750, June 30,

RGGI .....csoressccascevesesnechieeesuesesbbstnniaaaiiealininiiiaissaaiataadeniiannnnan 16

|

Vv

Letter, E.R. Quesada to Rep. Orrin Harris, Chairman

[House] Committee on Interstate and Foreign

Commerce dtd. July 24, 1958, reprinted in U.S. Code

& Cong. & Admin. News at 3761 ..0.........cccccccsssesesesesssesessseeneees 2

McFarland, R, et.ai., Work and Occupational Skills in

Handbook of Aging and __the _Individual,

Psychological and Biological Aspects (Birren, J., Ed.)

University of Chicago Press (1959) .............c:cessssesseseeoen >, 6, 7,8

Memorandum, Louise Coomes, AGC-24 to Associate

General Counsel, Regulations and Codification

Division, subject: Missing Regulatory Dockets 40, 41,

BE a 12

Lr

Minutes, Foundation and Executive Committee

Meeting, Daniel and Florence Guggenheim Aviation

Safety Center, NE Ta eee etactatenndndemitieas tibiae te el 4

eR ee eT ee 13

Report of the National Institute on Aging Panel on

the Experienced Pilots Study, Department of Health

and Human Services, NIH, NIA, Bethesda, Md.

a TPs TUE somuisiarnetsscesnisiintistsatnyeniaibieeetanimemente 15

Ruppenthal, K.M., Compulsory Retirement of Air Line

Pilots, 14 Indus. & Lab. Rel. Rev., 528 (1961) .........c.cccccccscseeseee. 9

INTEREST OF AMICUS CURIAE!

Age60Rule.com (Samuel D. Woolsey, JD) is an independent

non-profit educational research resource for issues related to

the Federal Aviation Administration's age 60 rule. All

Age60Rule.com materials are available to the public through

the internet website: www.age60rule.com.

STATEMENT OF THE ISSUES

Two threshold issues confront this Court before Petitioners’

requests for exemptions can be properly considered. These

issues are: (1) The roll of judicial oversight in the modern

American administrative State; and (2) the consequences of

judicial abdication of its proper roll in that oversight.

SUMMARY OF THE ARGUMENT

In this Court's consideration of this petition for a writ or

certiorari, it must first define the essential elements of the

FAA's decades-long defense of its age 60 rule. This is

necessary not only because of the narrowness of the rule —it

applies only to pilots and carriers operating large aircraft in

common carriage — but because, as explained below, no such

discipline has been adopted previously by any American

court. The result has been a judiciary blinded first by

prejudice, then by _ precedent; an agency utterly

contemptuous of the judiciary to which it is—or should be —

by statute, subject; and a near half-century of tension

clogging both agency and judicial calendars.

| This brief was authored and is funded by Samuel D. Woolsey, JD.,

with neither input nor asssistance from counsel for either party.

Anthony P.X. Bothwell, Esq., counsel of record for Age60Rule.com,

submits on behalf of Age60Rule.com.

A

JUDICIAL OVERSIGHT IN THE MODERN AMERICAN

ADMINISTRATIVE STATE

Virtually every treatise on this subject opens urging a

presumption of regularity and judicial deference to agency

expertise. None, however, discuss the consequence should

this oversight descend into blind affirmation and unbridled

deference. The result of either, most certainly of the two,

together, is a loss of the authority, independence, and

respect wrought for itself two centuries ago by John

Marshall in his seminal Marbury v Madison.

The issues of presumption and deference are significant here

because when created in 1958,2 the FAA's actions were

intentionally made subject to judicial review.5 Further,

during floor debate, Rep. Meader (Mich.) complained: "This

bill vests dictatorial power in one man. In this bill, we are

creating an aviation czar."4 A criticism the incoming

Administrator, Elwood Quesada, had already accepted:

The Administrative Procedures Act, under which these

[FAA] regulations will be issued, and a provision for

appeals to the courts, provides the necessary safeguards

against arbitrary action on the part of the issuing

authority ... 5

2 Federal Aviation Act of 1958, H.R. No. 2360, 85th Cong., 2d Sess.

(1958), reprinted in U.S. Code & Cong. & Admin. News, 3741 et seq. (P.L.

85-726). Hereafter FAAct.

3 FAAct Sec. 1006(a). (72 Stat. 795).

4 Cong. Rec. Aug. 4, 1958 at 16087.

5 Letter, E.R. Quesada to Rep. Orrin Harris, Chairman [House]

Committee on Interstate and Foreign Commerce dtd. July 24, 1958,

reprinted in U.S. Code & Cong. & Admin. News at 3761

Despite these legislative concerns, statutory protections, and

agency acceptance, no clearer examples of blind affirmation

and unbridled deference exist than in the judiciary's

response to the first challenges to the age 60 rule, suits to

first delay then prohibit its enforcement.* There, both the

district and appellate courts abandoned their duties as

jurists to become advocates for the rule, for the agency, and

for its Administrator.

1. ALPA v Quesada: Deference to Advocacy:

If nowhere else in the administrative State, the plaintiffs in

ALPA v Quesada had a right to expect—and the judiciary a

duty to deliver—a fair hearing on the evidence, free of

animosity toward themselves, or favor for the agency or the

person of the Administrator. Although pursuing a legal

right established in three prior binding arbitrations,’ the

pilot plaintiffs were denied both.

In rejecting their plea for a preliminary injunction, the

district court's Judge Bicks opened with a scathing

condemnation of the plaintiff pilots and their motives:

Any attempt to weigh the countervailing considerations

of dollar loss to the approximately 40 pilots against the

public [footnote omitted] safety in air carrier operations

borders on vulgarity, ... §

followed by an exaltation of Administrator Quesada worthy

of Rep. Meader's Czar:

6 ALPA v Quesada, 182 F. Supp. 595 (S.D., N.Y., 1960); 276 F.2d 892 (2d

Cir. 1960); 286 F.2d 319 (2d Cir. 1961).

7 See Notes 22, 23, below, and Petition notes 21-26, Exhibits B, C, and

associated texts.

8 ALPA v Quesada, 182 F. Supp. 596.

. as against the determination made by Lt. Gen.

Quesada, Commanding General of the 9th Tactical Air

Command from the time of invasion of Normandy until

the termination of air hostilities in Europe, with an

accumulated experience of 12,000 (twelve thousand)

hours as a pilot, now serving as Administrator of the

Federal Aviation Agency, ... °

Nor was Judge Bicks' endorsement of Administrator

Quesada's supporting evidence any less deferential:

. the report from the President of the Aerospace

Medical Association: 'Our Association- supports the

Federal Aviation Agency in making this regulation in

the interest of public safety * * * Insight into the validity

of this regulation in the realm of public safety is very

well summarized in the editorial from the Washington

Post of December 8, 1959, entitled, 'Pilot Age and Safety’

[footnote omitted] '; (3) the statement of Harry F.

Guggenheim, aviation authority and chairman of the

governing body of the Cornell-Guggenheim Aviation

Safety Center, released May 19, 1959, ... 1°

The statement is misleading, incomplete, and in reverse

order. The extended remarks were actually those of

Quesada at a Daniel and Florence Guggenheim Foundation

board meeting on May 18, but released the next day with

attribution to Guggenheim.!! The December 8th newspaper

piece was a by-line, not an editorial, appeared three days

after the rule's publication, and was based largely on the

Foundation press release. The statement attributed to the

Aerospace Medical Association also appeared after the rule's

9 Tbid.

10 [bid.

11 Minutes, Foundation and Executiv: Committee Meeting, Daniel and

Florence Guggenheim Aviation Safety Center, May 18, 1959.

publication (January 1960) as the personal and editorial

comment of its president. This was not an endorsement by

the Association as it was based on, and quoted extensively

from, the newspaper article.!2

The only portion of Judge Bicks' opinion that might appear to

support a safety rationale for the rule was a comment from

the Handbook of Aging and the Individual, authored by

Ross McFarland, edited by James Birren (1959):

... The process of aging is of greater significance for

airmen than for most occupational groups because of the

exacting demands on their individual abilities. * * *

Slowing reaction times for complex performance may

reduce a pilot's ability to take the necessary actions

required by modern, high speed jet aircraft. These

changes may vary greatly from one person to another in

both nature and extent, but even minor deterioration in

many of the psychological and physiological functions

may interact to produce a significant loss in general

efficiency. 13 (Italics added, see note 16 and text, below.)

Here, too, Judge Bicks' recitation is incomplete, out of

context, and misstates McFarland's message. In lines

omitted from Bicks' opinion, McFarland balances the older

pilots' "slowing reaction times" with "improved safety

records" due to their greater knowledge, experience, and

judgment:

[I]t may be expected that the judgment and

experience of the older pilots may also contribute to the

improved safety records and be of special value in the

12 See Petition notes 60, 61, Exhibit T and associated texts.

13, McFarland, R, et.al., Work and Occupational Skills in Handbook _ of

Aging and the Individual, Psychological and Biological Aspects (Birren,

J., Ed.) University of Chicago Press (1959), 452-497, 471.

———

6

handling of large and expensive equipment. Although

the younger pilot may be as competent in the actual

flying of a plane, repeated flights under many adverse

circumstances give the older man a wider range of

knowledge upon which to base his decision. ...14

Throughout his essay, McFarland repeatedly promotes the

value of experience over age. Three examples:

... the ratio of fatal accidents to all accidents is highest in

the youngest age groups ...

... that there is no definite increase in the number of

accidents with age suggests that factors other than age

may be important determinants ...

Undoubtedly, the most important advantage which

the older pilot has is the experience he has gained in

flying various types of equipment under all conditions.

.... The individual who has not learned by experience to

exercise a high order of judgment sooner or later gets

into difficulties and is eliminated from the active flying

group.)

Further, McFarland's concern was not safety, but efficiency,

note the italicized phrase above, "a significant loss in general

efficiency." McFarland expanded on this point, again, with

words omitted from Judge Bicks' opinion:

14 Ibid.

15 [d., all three at 476.

It should be kept in mind ... that the present vitality

and rapid growth of the aviation industry are intimately

related to the youthfulness of the personnel and might

be best maintained by an early retirement age. 1°

As for McFarland's several suggestions that air carrier pilots

should retire "at about" 60, (one example):

Although it is not yet possible to establish a

retirement age for civil airline pilots based on

scientifically determined facts, enough is known about

the aging process to suggest that these pilots should

retire at about the age of 60. ...17

the record shows that both McFarland and Birren had

attended, by invitation, a confidential presentation by

Quesada to enlist scientific support before initiating his

rule.18 Held three weeks before publication of the NPRM,

the attendees were presented with transition training times

for older pilots, union seniority issues, and costs!?— nothing

alluding to safety—and asked to keep the meeting

"confidential."20 That this secret meeting became the basis

for McFarland's "age 60" suggestions is demonstrated by the

specific age he mentions—60—and a reference to the

proposed rule in his text:

16 Id., at 471

17 Ibid.

18 See Petition, notes 35-38 and associated text, together with Exhibits J,

K, and L.

19 These data were later declared inadequate to support the mandatory ©

retirement rule by FAA in-house counsel. See Petition, footnote 43,

Exhibit Q and associated text.

20 ~=See Petition, Exhibit K and text.

The United States Federal Aviation Agency is proposing

to rule that the retirement age shall be fixed at 60 and

that no civil airline pilot shall be allowed to qualify to fly

jet passenger aircraft after the age of 55.2!

The remainder of Bicks' opinion dismisses the three

arbitrations that had established the pilots’ right to continue

flight past age 60 on the basis that the government had not

been represented, together with a gross misrepresentation of

Western Airlines' "safety" defense. Judge Bicks:

We are not informed of the proof before this arbitrator,

but in appraising the weight to be given to it in this

proceeding, it should be observed that "at some age--say

90--" he "would take judicial notice of impairment beyond all

reason." Furthermore, and importantly—it does not

appear that the public interest—in the person of a

representative of the appropriate governmental

agency — was represented.” (Italics added, see below.)

Here, too, Bicks' statement is incomplete, out of context, and

misleading. The more complete passage reads:

... (4) Federal authorities have chosen to attribute nearly

all airplane accidents to weather conditions, mechanical

failure, or other causes not related to pilots' physical

deficiencies; (5) temporary physical impairment can

occur in any given individual at almost any age, and this

is the apparent reason that commercial airplanes carry

co-pilots, regardless of the youth of the pilot; (6) the

Carrier here has shown no relationship between age of

pilot from its own experience or from any other carrier's

21. Handbook of Aging and the Individual, at 471.

2 ALPA v Quesada, at 598.

experience; and finally (7) the normal way to determine

physical ability or inability is through reasonable and

universally accepted medical examinations, which are

available to the carrier here.

Thus, there is no testimonial basis and no “fact of

life" on which we could be expected to take a kind of

‘judicial notice" that supports the view that it is unsafe

to let a pilot perform after the age of 60. This is not to say

that there is not some age—say 90—when we would take

judicial notice of physical impairment beyond all reason. It is

enough to say that the evidence here does not support

the theory that attainment of age 60 is in itself enough to

disqualify a pilot.% (Bicks' reference in italics.)

Through his personal biases, citation to irrelevant, post-hoc

testimony, incomplete, out of context, and misleading

citations to relevant evidence, and failure to identify any

credible evidence to support either the rule or his decision,

Judge Bicks abandoned his role as judge to become an

advocate, unable to see beyond the person of his idol, "Lt.

Gen. Quesada, Commanding General of the 9th Tactical Air

Command from the time of invasion of Normandy until the

termination of air hostilities in Europe, ..."

2. ALPA v Quesada: The 2nd Circuit as Accomplice:

ALPA appealed Judge Bicks' denial of the temporary

injunction, and lost.7* In its first affirmation of the district

23 Extract appears in: Ruppenthal, K.M., Compulsory Retirement of Air

Line Pilots, 14 Indus. & Lab. Rel. Rev., 528, 534-35 (1961). The original

arbitration is not available. But the portion appearing here was reported

by an authority in the field, published contemporaneously in a peer-

reviewed journal, of appropriate subject matter, more than 20 years ago.

(Ref: FRCP 901(b)(8)). See also Petition, notes 21-25 and associated texts.

2% ALPA v Quesada 276 F.2d 892 (2d Cir. 1960)

10

court's decision, the 2nd. Circuit's panel continued Judge

Bicks' practice of misstating the evidence.

Pursuant to [his] statutory authority the Administrator

and his medical staff in the fall of 1958 began a study

concerning the aging process and the diseases and

physiological deterioration that accompany it in an

effort to determine whether a maximum age should be

set for service by commercial pilots.*

The statement is incomplete, incorrect, and misleading. The

FAA did not initiate its study of a maximum age limit for

commercial airline pilots until February, 1959.26

The 1958 study was not on age-60, but on medical

certification standards, initiated in response to two reports

on that subject by the independent Flight Safety Foundation

(FSF).2”7 This 1958 study led to another 1959 rulemaking on

medical certifications, overlapping that for the age 60 rule

by four months.22 Except for one suggestion appearing in

the first FSF Report concerning air traffic controllers only,

neither study addressed age or age limits for any class of

3 I[d., at 895.

2 See Petition, notes 3-27, Exhibits A-D, and associated text.

27 Flight Safety Foundation, Inc., FCF/CAA Medical Study (Report

No.1), Physical Qualifications of Air Traffic Control Personnel, New

York, 21 Feb. 1958, at 86-7; Flight Safety Foundation, Inc., FCF/CAA

Medical Study (Report No.2), Medical Aspects of Civil Aviation, New

York, 31 Mar. 1958, at 69, 71. See Petition, notes 7, 16, 17 and associated

text.

28 =24 Fed. Reg. 2257 (Mar. 21, 1959) NPRM, Physical Standards for

Airmen, Medical Certificates; 24 Fed. Reg. 7309 (Sep. 11, 1959) Final Rule,

Physical Standards for Airmen; Medical Certificates, Amendment_to

Medical Standards.

29 Report No.1, at 86-7. See also Petition, notes 7, 16, 17 and associated

text.

at

11

airmen. The second FSF report examined pilots, supported

medical waivers for them, made no mention of an age limit,

and found no reason to change their medical criteria for the

newly introduced jet transport aircraft.»

While one might be misled by the similar issues raised in the

two rulemakings, even a cursory review would have

revealed their differences —in both finding and purpose. On

its face, the 2nd Circuit's decision suggests that it may have

been unaware of the separate rulemaking on medical

standards, and considered only the FAA's briefs and Judge

Bicks' advocacy for its age 60 ruling.

3. The 2nd Circuit's Second Failure in Oversight:

With a subsequent request for a permanent injunction also

denied by Judge Bicks, ALPA again appealed to the 2nd

Circuit, and were again rebuffed.) In this second rejection,

the Circuit incidentally upheld Judge Bicks' refusal to order

a deposition of Quesada, losing any chance to discover and

assess the full scope of the evidence advanced by the FAA in

support its rule.%2

Moreover, by these four decisions, the age 60 rule was

affirmed as a valid exercise of the Administrator's

regulatory authority, becoming the "precedents" on which

all later courts relied in their refusals to reexamine the issue:

... As things are now, if the Age 60 Rule is reasonable, as it

has been held to be, it is not abuse of discretion to reject

any individual application for exemption even if the

applicant demonstrates that he personally is a superman

30 Report No.2, at 69, 71. See also Petition, notes 7, 16, 17 and associated

texts.

31 286 F.2d 319 (2d Cir. 1961)

32, [d., at 320. See also note 34 and associated text, below.

12

immune from the impairments that age normaily

inflicts. (Italics added.)

This unremitting reliance on the Bicks/2nd Circuit's

decisions is unfortunate, as the FAA lost the entire age-60

docket in 1974,4 while preparing for its first substantive

defense of the rule. Thus, neither challengers, defenders,

nor courts have since had access to the materials that would

support or refute a valid, original basis for the rule.

B

THE LEGACY OF UNBRIDLED DEFERENCE:

The legacy of unbridled deference is utter contempt and

unending litigation.

1. Unbridled Deference:

In assessing the legacy of unrestrained deference within the

age 60 context, it must be understood that the FAA did not

in 1959, and has never since, argued that advancing age, per

se, compromises safety in air carrier operations. The FAA's

argument has always been that the incidence of critical

medical defects increases with age, and it is these medical

defects, primarily incapacitations due to heart attacks, that

in turn, potentially increases the risk of accident—but never

argued in the narrow, Part 121 air carrier context.

3 Starr v FAA, 589 F.2d 307, 312-313 (7th Cir. 1978).

4 Memorandum, Louise Coomes, AGC-24 to Associate General

Counsel, Regulations and Codification Division, subject: Missing

Regulatory Dockets 40, 41, and 42 dated July 11, 1973.

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

errerererteicererteieae iii

13

In that context, Congressionally mandated* findings of two

federal scientific agencies (the Institute of Medicine (IOM),

and National Institute on Aging (NIA)), should be

significant, if not compelling. In the first, following an

exhaustive review of the literature, the IOM found (1981):

.. . For significant acute events (such as cardiovascular

events and stroke), age 60 does not mark the beginning

of a special risk or a special increase in risk, although, on

average, risk increases with age. Subtle changes that

may adversely affect pilot performance also increase

with age. ... However, age 60 is not an age of special

significance for these subtle changes either.>”

Addressing risk in air carrier operations, specifically, the

IOM found:

Acute incapacitation of the pilot is not significant as

a cause of airline accidents. No [air carrier] accidents

were attributed to incapacitation during the period 1968-

1977. Because the cockpit crew includes a co-pilot and a

flight engineer who can take over the controls, most

incapacitations, when they occur, do not cause accidents.

w

These observations were not novel in 1981. They merely

repeated many of the FAA's own admissions over the

% =6©Pub.L. 96.171, Dec. 29, 1979. Through five specific questions,

Congress ordered the Secretary of Transportation to determine whether

the age 60 rule was warranted.

7” Airline Pilot Age, Health and Performance: Scientific and Medical

Considerations, Report of a Study by the Committee to Study Scientific

Evidence Relevant to Mandatory Age Retirement for Airline Pilots,

Institute of Medicine, National Academy of Science, Washington, D.C.,

March 1981, at 4.

38 Ibid.

14

preceding decades. Examples: In 1966, FAA declared that

air carrier pilots were "a highly select group . . . more free of

serious pathology than a sample of the general population

of similar age."*? Starting in 1973 and continuing through at

least 1990, the FAA declared, in at least nine annual/bi-

annual reports, that airline pilots are "essentially purged of

disease prevalence’ that contributes to higher

[disqualification] rates for other non-pilot groups."* In 1978,

in testimony before Congress, the Federal Air Surgeon

conceded that "the precision in medicine is the same

regardless of age,"#! and the FAA's Deputy Administrator

affirmed that the FAA held that co-pilots made the air

carrier system "fail-safe" for pilot incapacitation.*? In 1980,

the year before the IOM report was issued, FAA conceded in

court that it had and applied a protocol for the detection,

diagnosis, tracking, and grant of waivers.for Part 121 air

carrier pilots with cardiovascular disease. In that case,

FAA conceded that its liberalized airline pilot exemption

policy had begun in 1972, covered six of nine "absolutely

disqualifying" medical conditions by 1980; but the required

"special testing -and evaluation requirements" were only

39 ~=—s Better Management Needed of Medical Research on Aging, 38th

Report by the Committee on government Operations, 89th Cong., 2d.

Sess., September 26, 1966. H.Rep. 2080, Appendix B (FAA statement), p.

19.

40 Booze CF, Characteristics of Medically Disqualified Airmen

Applicants During Calendar Year 1971, FAA Office of Aviation Medicine,

AM-74-5, May 1974, at 4. See also, Petition, notes 217-221 and associated

texts. The several authors of these FAA studies were FAA/CAMI

employees Booze, S. Dark, and L. Downey.

41 Age Discrimination Against Airline Pilots; Hearing before the Select

Committee On Aging, House of Representatives, 96th Cong., Ist Sess.

March 21, 1979. Comm. Pub. No. 96-183, at 51.

42 [d., at 53. See Petition, footnotes 214, 62, 131, and associated texts.

4 Delta Air Lines v U.S., 490 F. Supp. 907 (N.D. GA 1980). The protocol

is reprinted in the opinion as "Appendix A."

15

"rarely" performed.# A subsequent GAO report reveals that

by 1989, the FAA had expanded these exemptions to all

"absolutely disqualifying" medical conditions for Part 121

air carrier pilots except insulin dependent diabetes—and a

60th birthday.

Following review of the IOM report, three public hearings,

and scores of written submissions, the National Institute on

Aging Panel similarly found no "medical evidence to

support age 60, or any other specific age for mandatory pilot

retirement" (underling in the original), recommended the

grant of exemptions to air carrier pilots, and provided a

protocol therefor.4? The NIA panel declined to make a

conclusive recommendation on the rule due to the lack of

operational data on which to base such decision, harshly

blaming the FAA directly for this deficiency.*

In rejecting the first petition for exemptions following these

reports,4? the 7th Circuit ignored the above, relied heavily on

the 28 year-old ALPA v Quesada, spoke much of "increased

risk of incapacitation" and "deteriorating skills," but made

no correlation of either to air carrier pilots or their risk of

accident; made no reference to multi-crews, co-pilot

presence, or "fail-safe" Part 121 air carrier systems; and cited

to no air carrier accidents or incidents charged to these

“4 Id., at 914.

45 GAO Fact Sheet, Aviation Safety, Information on FAA's Age 60 Rule

for Pilots, GAO/RCED-90-45FS, November 1989. At 16.

46 Report of the National Institute on Aging Panel on the Experienced

Pilots Study, Department of Health and Human Services, NIH, NIA,

Bethesda, Md. 20205, August, 1981. (At 1, 2.)

47 [d. at 22-25.

48 = I[d., at 17.

#7 Aman v FAA, 856 F.2d 946 (7th Cir. 1988).

EM SF CITT III I OE TERE aS a eR I

16

defects from the earliest days of commercial aviation

onward. The court identified and cited to two expert

witnesses for interested parties (the Air Transport

Association and ALPA), and three not included in the

exemption docket—Flinn, Billings, and Acker—all

supporting the rule. (At 953.) Conversely, for the pilots, it

declared: "A detailed recitation of the petitioners’ evidence

would serve no useful purpose." (At 954.) With respect to

the Congressionally mandated IOM and NIA reports, the

court made no reference to the IOM findings, and repeated

the NIA Panel's recommendation "that the rule be retained

as a general policy," accepting, without question, the FAA's

refusal to grant the exemptions as recommended. (At 948.)

This is abdication, not deference.

2. Utter Contempt:

Following the IOM and NIA criticisms of its (then) 2-

decades old medical/incapacitation arguments, FAA

commissioned, in 1982, the Golaszewski Flight Time Study

to produce a statistical proof of increasing risk above age

60.59 Using unvalidated data and an invalid methodology

defined only in a footnote, FAA manufactured multiple

charts falsely illustrating an increase in risk beginning

precisely at age 60. Unfortunately —for the FAA—its own

Office of Aviation Safety had rejected and refused to publish

the study at delivery "because there are major data

deficiencies [and] other problems ... discussed by experts in

50 Golaszewski RS, The Influence of Total Flight Time, Recent Flight

Time _and Age on Pilot Accident Rates, Acumenics Research and

Technology, Inc., Bethesda, Maryland, Order No. DTRS57-83-P-80750,

June 30, 1983.

17

the aviation field and in my office."5! Despite this summary

rejection from within and universal criticism without? FAA

has promoted this study and its flawed results to the courts,

to the public, to Congress, and to the international aviation

community ever since as "the best scientific evidence" that

risk increases above age 60.% Among FAA's targets of

misinformation were the 7th Circuit in Baker,4 and the

Government Accounting Office (GAO). Through proxies,

this discredited and misleading formulation from this

discredited and rejected study was also falsely promoted to

Congress’ Office of Technology Assessment (OTA) as a

NASA Ames product, and to the Australian courts and

Human Rights Commission.%”.

Because the agency was aware of the study's flaws and its

own misrepresentations, its submission to the 7th Circuit in

Baker was probably simple fraud. For the same underlying

reasons, an FAA official's representation to the GAO was

51 Kenneth M. Chin, Executive Officer, Office of the Assistant

Administrator for Aviation Safety, FAA, letter to Samuel D. Woolsey

([month illegible] 24, 1991). See Petition, note 81 and related text, Exhibit

U.

92 See Petition, notes 243-246, 248-250, 257 and associated texts for range

and credentials of authorities criticizing the study, as well as their

descriptions of the flaws.

3 See, e.g., Petition, notes 32, 113, 119, 127, 134 and associated texts. The

"fourth report" cited by FAA in the instant case (Denial, page 11) was a

replication of its earlier Golaszewski misrepresentations (See Petition,

notes 143-49 and texts.)

o4 «Baker v FAA, 917 F.2d 318 (7th Cir. 1990)

55 GAO Fact Sheet, Aviation Safety, Information on FAA's Age 60 Rule

for Pilots, GAO/RCED-90-45FS, November 1989, at 17.

56 = See Petition note 248.

57 See, Petition, Notes 244-258 and associated texts.

18

potentially prosecutable as a felony under 18 U.S.C. §

1001(a)(2), (3), and/or (c)(2). See Brogan v US, No. 96-1579

(1998) where even the "exculpatory no" is not excused.

Today, the FAA's best defense of its rule is the long list of

judicial affirmations, starting with those of Judge Bicks and

the 2nd Circuit in ALPA v Quesada.*

3. Unending Litigation:

When the 7th Circuit, in Baker, observed that the

pilot/petitioners faced a "Catch-22"—"they cannot get

exemptions until they show they can fly large passenger

aircraft safely, and they cannot show they can fly such

planes safely until they get exemptions" —it revealed, albeit

unwittingly, that it had been flummoxed. As noted above,

the FAA has never argued that increasing age, per se,

increases risk. In its formulations in 1959, before Judge

Bicks in ALPA v Quesada, the 7th Circuit in Starr, Aman,

and there, Baker, the DC Circuit in Yetman v Garvey, and

here, Butler, et al.,59 the FAA's argument has been that, in

the general population, certain medical defects, primarily

incapacitations, become more likely with increasing age.

The FAA has never argued, however, that the air carrier

pilot population is similarly afflicted (see notes 39, 40 and

text, above), that these medical defects are not detectable in

older populations (see note 41 and text, above), are

unmanageable when detected in air carrier pilots (see notes

43-45 and text above), or compromise safety in the multiple-

crew, fail-safe, Part 121 air carrier operating system if/when

they do occur (see note 42 and text, above).

58 See FAA's Denial of Exemptions, p. 7.

59 bid. Review the Denial for a larger, but still incomplete list.

60 See Petition, Notes 180-208 and associated texts.

19

The courts will continue to face an unceasing stream of

appeals on this issue unless and until they demand of the

FAA a fair and honest appraisal of this core question: Do the

FAA's claimed "critical medical defects," if/when they occur

in the unique, super-select Part 121 air carrier pilot population,

compromise safety in the FAA's fail-safe, Part 121 air carrier

system? Independent of age.

Nothing less will restore to the judiciary—and to this

Court—the authority, independence, and respect you must

command if you are to fulfill your legitimate oversight

obligations in the American administrative State.

CONCLUSION

This Court should remand to the court below with

instructions to determine first whether the Administrator is

a credible witness in her denial of the requested exemptions.

If she is found to be, the court below should then determine

whether she had before her properly admissible, credible

evidence relevant to safety in the Part 121 air carrier system

sufficient to justify her denial of the requested exemptions

on that basis. If the first question is found in the negative,

however, the court should be ordered consider the requests

de novo, or assign them to a special master, with discovery,

for examination and recommendation.

Respectfully submitted:

Anthony P.X. Bothwell, Esq.

Counsel of Record,

Age60Rule.com (Samuel D. Woolsey, JD)

Amicus Curiae