Petition for Writ of Certiorari — Professional Pilots Federation v. Federal Aviation Administration
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97 1267 FEB 3 1998
No.
OPE OF THE CLERT
IN THE
Supreme Court of the United States
October Term, 1997
PROFESSIONAL PILOTS FEDERATION,
WILLIAM T. REINERS, III, PHILIP T. SHAW,
Petitioners
v
FEDERAL AVIATION ADMINISTRATION,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
erect ee
NICHOLAS H. COBBS
Counsel of Record
LAW OFFICES OF NICHOLAS H. COBBS
1815 H Street, N.W., Suite 600
Washington, D.C. 20006
(202) 452-8222
MICHAEL J. PANGIA
GILMAN & PANGIA
1815 H Street, NW, Suite 600
Washington, D.C. 20006
(202) 466-5100
i
QUESTIONS PRESENTED
The court below held that a Federal Aviation
Administration regulation that requires scheduled airline pilots
to cease work at age 60 was a reasonable exercise of agency
discretion. In so ruling, the court held that the FAA was not
bound by the requirement of the Age Discrimination in
Employment Act (“ADEA”) that any age-based prohibition on
employment meet the requirements for a bona fide
occupational qualification (“BFOQ”). The Equal Employment
Opportunity Commission, the agency that administers the
ADEA, has consistently taken the position that the Age 60
Rule is not a BFOQ. The questions presented are:
(1) Whether the Federal Aviation Administration’s
general power to regulate air commerce and safety implies the
power to relieve airline employers of their specific statutory
obligation to avoid age-based discharge under the ADEA.
(2) Whether a federal agency regulation that
contravenes the policy of another federal agency acting within
the scope of its governing statute should be subject to a more
exacting standard of review than a regulation that does not
infringe on conflicting governmental policies.
il
RULE 29.6 LISTING
The sole corporate petitioner is the Professional Pilots
Federation. PPF is a non-profit membership corporation and
has no parent companies, subsidiaries, or affiliates.
ee
ili
TABLE OF CONTENTS
EERE OI Sa Aa NA SB cee RE i
EEE eat Sera TNR ig i ERE ii
a Oa CG a ask he bia we A a oS 5 iii
I ig ae eee iV
a SEUNG OU Salas vos 1
Ee a os ea gage be arc Sowa 2
Statutes and Regulations Involved .............. 2
I a ak oboe eee. 2
I ho ria i alga re belie oon woe 2
The History of the Age 60 Rule ........... 4
The Age 60 Rule andthe ADEA .......... se
ame Present Procestiings .. . . o.oo ee 1]
mmnsons Son Granting the Wet 2... 2. oe ee te i3
I. The Decision Below Is in Conflict with the
ADEA, EEOC Regulations, and this Court’s
Decision in Western Air Lines v. Criswell. ... . 13
Il. The Court Below Applied an Insufficiently
Rigorous Standard of Review to a Regulation
That Infringed on Important Statutory Policies
aR areata bs) ae Te MUO las he ee 19
III. The Decision Below Is in Conflict with
the Reasoning and Outcome of Decisions in the
re ee IR he 23
I ORG eg Vela eee Oe Bh, 27
Appendix A, D.C. Circuit Opinion............. a-1
Appendix B, FAA Disposition............... a-40
Appendix C, Order Denying Rehearing ......... a-77
Appendix D, Statutes and Regulations .......... a-78
i i ge
iV
TABLE OF AUTHORITIES
Cases
Air Line Pilots Ass’n Int’l v. Quesada,
Ot ee ee CREE so. et onda bee Re ou eee y
Aman v. FAA,856 F.2d 946
Per a 6, 7, 11, 24-26
Baker v. FAA, 917 F.2d 318 (7 Cir. 1991) 11, 21, 24-26
Burlington Truck Lines, Inc. v. United States,
SIR Sees SED 6k 695 i eR eae 19
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Er Wis Oe BSR a a 20, 21
Christie v. Quantas Airways Limited (No. 2),
68 IR 248 (Aust. Indus. Ritns. Ct. 1996) ........ 25
Coupé v. Federal Express Corp.,
121 F356 ee Ge Cr. ISS) ow ee ek es 11, 23, 26
Department of the Treasury v. FLRA,
Rae ae ae as Cs ES 5 EN ERG Se 20
EEOC v. American Airlines Inc.,
CaF 2 a eh oo 8 EE 10, 26
EEOC vy. Boeing Corp.,
643 Pb 119 OCs, 1908)... bee es 10,24, 26
EEOC v. Northwest Airlines, Inc.,49 Fair Empl. Prac. Cas.
(BNA) 1433 (W.D. Wash. 1987) .............. 10
EEOC v. Pan American World Airways, Inc., 52 Fair Empl.
Prac. Cas. (BNA) 940 (N.D.Cal. 1988) .......... 10
Gray v. Powell, 314 U.S. 402 (1941)... ce cee 21 i
Iervelino v. Delta Air Lines, Inc.,
Fae ue WE CAA EE oo ka ces ca REA ee 1]
IRS Fresno Serv. Center v. FLRA,
Tae ae eee Cee Gat. Te 5 i 66 ES 20
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.,
ES Vk Be ee es CE A SRA RG 20
;
}
;
4
j
4
ee
Vv
O'Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. by ee
Patterson v. McLean Credit Union,
ee ee Ce os es ee ee 14
Southern Steamship Co. v. NLRB,
Pee eee BORD 6 WSN ES RS eee 20
Starr v. FAA, 589 F.2d 307, (7 Cir. 1981) ......... 9
Trans World Airlines, Inc. v. Thurston,
OU Ge, Bid CI os 6 ee ek 10, 16, 26
Tuohy v. Ford Motor Co., 675 F.2d 842
Sere ON cs oe oe 10, 26
Wan v. Alaska, 451 U.S. 259, (1981) ........... 17
Western Air Lines, Inc. v. Criswell,
ie es Pe oo hk eR 10, 16-18, 26
Williams v. Hughes Helicopters, Inc.,
WG P28 1587 BO ie, BOD oe ov vk wie i ce ll
Statutes
Administrative Procedure Act
F Siti BES 6 Fila o eck « k Va Wee wiCo va ee 2
Plas SO Ss sab eee Ce vee ce 20
OO a ER, Koha oe eee EAE di a ee 2
Age Discrimination in Employment Act
FF Se Oe kao x 6 a eG ba ee 2
SP a I, hk s ck Gee OR we 9, 13-15
BAP es Ek 6k as SR ee ee
Federal Aviation Act (Reenacted in Codified Form)
rap. L. 3-726, 72 Stat. 737 CO9SO . ok. os. ek cA, 4
Pub. L. 103-272, 108 Stat. 745 (1994) .......... 4
OF eee NTE ok ys heh Ee kes %, ka, 23
OF es SORTED 6 ik bk ek eu 4,14
NF SPs POOPNII) 6 6 08 sk ho Ca ok ek 4,14
OF is SON Sv i's Gh Wee 4
vi
Rte PURO 6S AOS EEE ECR. On CRO 11
Pub. L. No. 96-171, 93 Stat. 1285 (1979) .......... 6
Rules
PG Se EEE oe kes eh wlrwed ss Oe wncEer er 3
Oe i as SER OO Soe ewe AD ye
SP Rae es PEER OPOUEICE) vv ae ei Ween eee ean 10
SP us BHO ob ob 8 eS ERE 2, 16
Congressional Hearings and Reports
Age Discrimination and the FAA Age 60 Rule: Hearings Before
the House Select Comm. On Aging, 99" Cong. (1985) .. 7
House Select Comm. On Aging, Age Discrimination Against
Airline Pilots, 96" Cong., 1* Sess., (1979) ......... 6
Federal Register
re en, Ss EEE Gb se ss dc-eck-e Peewee 4 4
ee Hs CE ia 00 6 hee wee te ee 4-5
oy | Og.) See ae ip 5
i oe Se UCL ED o's s 6400 8 be ree eR )
Fe Os SE BENET 66-0 66 NW 08 whe ee ee 7
a ee er er ee 8
Oe ey es DU EROND ON is CRN NR 8
Cr Pee, See Se CED ee ECU OER 8
Oe EG FU Ses CEPR 6 oo see woe Feed ak 14
ye a a rn a to a A l
ee ee ee ee ee
Vii
Other Authorities
Age 60 Project, Hilton Systems Technical Report
WE A ed er ern gue tt 7
Comment, Mandatory Retirement of Airline Pilots: An Analysis
of the FAA’s Age 60 Retirement Rule, 33 Hastings
REND aad ene ieee a et gi oe on 5
Nat'l Inst. Of Health, Dep’t of Health & Human Sves., Report
on the National Institute of Aging Panel on the Experienced
PENNS C0 eR eae 6
Ruppenthal, Karl M., Compulsory Retirement of Air Line
Pilots, 14 Indus. & Labor Rel. Rev. 528 oS eae 5
Schwartz, Bernard, Administrative Law (3d ed. iver). 2}
IN THE
Supreme Court of the United States
October Term, 1997
PROFESSIONAL PILOTS FEDERATION, WILLIAM T.
REINERS, III, PHILLIP T. SHAW,
Petitioners
v.
FEDERAL AVIATION ADMINISTRATION .
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The Professional Pilots Federation, William T. Reiners,
III, and Philip T. Shaw respectfully petition for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. A, injfra.,
a-1-39) is reported at 118 F.3d 758. The underlying
administrative decision of the Federal Aviation Administration,
Disposition of comments and notice of agency decisions
concerning the Age 60 Rule, (App. B., infra, a-40-76 ) is
—— ee
2
published at 60 Fed. Reg. 65,977.
JURISDICTION
The court of appeals entered its judgment on July 15,
1997. A petition for rehearing was timely filed and was denied
on November 5, 1997. (App. C, infra, at a-77). The
jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
STATUTES AND REGULATIONS INVOLVED
This case involves the construction and interrelationship
of sections of the former Federal Aviation Act, 49 U.S.C. §§
44701, 44702, the Age Discrimination in Employment Act, 29
U.S.C. §623, the judicial review provisions of the
Administrative Procedure Act, 5 U.S.C. §706, the “Age 60
Rule,” promulgated by the Federal Aviation Administration, 14
C.F.R. §121.383(c), and regulations of the Equal Employment
Opportunity Commission that prescribe the requirements for
bona fide occupational qualifications, 29 C.F.R. §1625.6.
These statutes and regulations are set forth in the appendix.
(App. D, infra at a-78-83).
STATEMENT OF THE CASE
Introduction
The matter here presents a conflict arising because one
federal agency, acting under its governing statute, continues to
enforce a regulation that requires conduct that violates the
explicit language of a later enacted federal statute and the
regulations of the federal agency charged with enforcement of
the later statute. Consequently, this case involves the standard
of review that is appropriate to an agency regulation that
a er ee ae
3
conflicts with a statute and regulations administered by another
agency.
The “Age 60 Rule,” 14 C.F.R. §121.383(c), prohibits
an employer from employing a pilot to operate commercial
aircraft under Part 121 of the Federal Aviation Regulations, 14
C.F.R. Part 121, once he has reached his sixtieth birthday.
The FAA has never granted an exemption from the rule,
although it routinely grants exemptions to younger pilots with
disqualifying medical conditions. The Age Discrimination in
Employment Act (“ADEA”), prohibits age-based
discrimination, including mandatory retirement, unless the
employer can demonstrate that an arbitrary age limit constitutes
a “bona fide occupational qualification ["BFOQ”] reasonably
necessary to the normal operation of the particular business.”
29 U.S.C. §623(f). Since 1981 it has been the stated position
of the Equal Employment Opportunity Commission, the agency
that administers the ADEA, that the Age 60 Rule is not a per
se BFOQ because pilot medical fitness and proficiency can be
appraised adequately without an inflexible age prohibition.
In December, 1995, after years of study and public
hearings on whether the Age 60 Rule should be changed or
eliminated, the FAA announced that the rule would not be
changed and would be extended to certain commuter operations
that previously had not been subject to it. The District of
Columbia Court of Appeals affirmed the FAA’s decision over
a vigorous dissent. Petitioners seek the aid of this Court to
clarify longstanding ambiguities in an important area of federal
law, establish an appropriate standard for review of federal
agency decisions that conflict with statutes and regulations
administered by other agencies, and resolve conflicts between
the decision below and decisions of this Court and other courts
of appeals.
| en
The History of the Age 60 Rule
In 1958 Congress passed the Federal Aviation Act, Pub.
L. 85-726, 72 Stat. 737, transferring the safety functions of the
Civil Aeronautics Board to the newly created Federal Aviation
Administration. Under the act the FAA administrator was
given broad but vague authority to promulgate “regulations in
the interest of safety for the maximum hours or periods of
service of airmnen,” 49 U.S.C. §44701(a)(4), to prescribe
“regulations...for other practices, methods, and procedure the
Administrator finds necessary for safety in air commerce,” 49
U.S.C. §44701(a)(5), to regulate “in a way that best tends to
reduce or eliminate the possibility or recurrence of accidents,”
49 U.S.C. §44701(c), and to consider “the duty of an air
carrier to provide service with the highest possible degree of
safety,” 49 U.S.C. §44702(b)(1)(A).'
Pursuant to these powers in June, 1959, the FAA
issued a notice of proposed rulemaking to establish an age
limit for pilots engaged in operations under Part 121 of the
Federal Aviation Regulations, which governs major scheduled
passenger and cargo service but not to corporate or charter
flights, irrespective of the number of passengers carried. 24
Fed. Reg. 5,248 (1959). The imposition the rule was justified
on account of a perceived risk of “sudden incapacity” from
cardiovascular disease, decline in physical stamina, and a
purported decline in older pilots’ ability “to perform
effectively in a complex and stressful environment.” Jd at
'The Federal Aviation Act of 1958 was reenacted into positive
law in codified form in July, 1994. The reenactment was not intended
to make any substantive changes in the governing law. See Pub. L.
103-272, 108 Stat. 745 (1994).
t
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5,249.* On December 5, 1959, the rule was promulgated
without holding any public hearing. 24 Fed. Reg. 9,767
(1959).
The Age 60 Rule has remained essentially unchanged
since its establishment. It provides that:
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 60" birthday. No person may
Serve as a pilot on an airplane engaged in
operations under this part if that person has
reached his 60* birthday.
14 C.F.R. §121.383(c).
The safety justification for the rule is dubious. The
rule’s initial implementation was Strongly colored by
labor/management politics. See Comment, Mandatory
Retirement of Airline Pilots: An Analysis of the FAA’s Age 60
Retirement Rule, 33 Hastings L.J. 241, 243-46 (1981); Karl
M. Ruppenthal, Compulsory Retirement of Air Line Pilots, 14
Indus. & Labor Rel. Rev. 528, 539-45 (1961). See also R.
618-27° (ex parte letters between the president of American
*The FAA continued to cite the risk of incapacitation as a
justification for the Age 60 Rule in the decision here under appeal.
App. B at a-54. The risk in Part 121 operations is extremely remote.
A medical expert testified at the FAA hearings that there have been no
passenger fatalities due to pilot incapacitation in Part 121 operations in
the past 30 years. R. 498 (testimony of Dr. Robin Barr).
*Refers to the record in the Joint Appendix on Appeal in the
court below.
Airlines and the FAA administrator advocating
implementation of the rule after arbitration panels held that
there was no safety justification for age 60 retirement.)
Because of its political overtones, the rule’s merit remained
in sharp dispute. The Seventh Circuit Court of Appeals
observed that “Since its enactment, the age sixty rule has been
the subject of continuous controversy and intermittent
reconsideration by the FAA.” Aman v. FAA, 856 F.2d 946,
948 (7" Cir. 1988). Between 1962 and 1984 the rule was
subjected to more than half a dozen studies, reports, and
proposed rulemakings, without undergoing any change. Jd.
The rule was also exposed to congressional scrutiny.
In 1979 the House Select Committee on Aging held hearings
on the rule, resulting in a law that directed the National
Institute of Health to study the rule to determine if it was still
scientifically justified. See, App. A at a-4; House Select
Comm. On Aging, Age Discrimination Against Airline Pilots,
96" Cong., 1* Sess., (1979).; Pub. L. No. 96-171, 93 Stat.
1285 (1979). The NIH Report concluded that there was “no
convincing medical evidence to support age 60, or any other
specific age, for mandatory pilot retirement,” [emphasis
Original], but recommended that the r:'+ be retained so that
the FAA could “engage in a systematic ,~*;ram to collect the
medical and performance data necessary to consider relaxation
of the current Age 60 Rule.” Nat’! Inst. Of Health, Dep’t of
Health & Human Sves., Report on the National Institute of
Aging Panel on the Experienced Pilots Study (1981), 1-2 (R.
149-50). See also App. A at a-4.
In 1990, in response to criticism of the Age 60 Rule
expressed by the Seventh Circuit in the Aman case and in
further hearings before the House Select Committee on
lL
7
wae Nana ah
Aging,* the FAA commissioned the “Hilton Study,” a “2-year
Study to consolidate accident data and correlate it with flying
experience and age of pilots.” App. B at a-46. The Study,
which was conducted by an independent research organization
under the supervision of the FAA’s Civil Aeromedical
Institute, concluded that there was “no support for the
hypothesis that pilots of scheduled carriers had increased
accident rates as they neared the age of 60,” but that, on the
contrary, there was a “slight downward trend” in accident
rates as pilots neared that age. App. A at a-4-5; Age 60
Project, Hilton Systems Technical Report 8025-3C(R2) at 6-
a
In light of the Hilton Study’s conclusion, the FAA
published a notice in the Federal Register announcing a public
meeting to discuss the rule, inviting comment as to whether
the rule should be changed, and, if so, in what respects. 58
Fed. Reg. 21,336 (1993). A public meeting was held in
September, 1993, and approximately 1,200 written comments
were received. App. B at a-46.
In the meantime, following a series of accidents
involving commuter airlines, the FAA initiated a separate
proposed rulemaking to include certain commuter operations
that had been conducted under Part 135 of the Federal
Aviation Regulations under the more stringent requirements
of Part 121°. App. A at a-5; 60 Fed. Reg. 16,230 (1995). In
‘See Age Discrimination and the FAA Age 60 Rule: Hearings
Before the House Select Comm. On Aging, 99* Cong. (1985).
‘Ironically, none of the accidents involved older pilots.
According to the National Transportation Safety Board reports the
captains of the three ill-fated aircraft were aged 42, 35, and 29. The
first officers were 25, 29, and 25. R. 557. Indeed, at least two of the
8
the notice, the FAA announced that the Age 60 Rule would
apply to the commuter operations whether it was revised or
not. App. B at a-47. More than 2,000 additional written
comments that discussed the Age 60 Rule were received in
response to the proposed rulemaking on the commuter
operations rules. Id.
In December, 1995, the FAA issued a “Disposition of
comments and notice of agency decisions,” announcing that
the Age 60 Rule would not be changed and that it would be
extended to the commuter operations that were to be made
subject to Part 121. See App. B, a-40 et seq.; 60 Fed. Reg.
65,977 (1995). Following a lengthy discussion of the history
of the rule and the medical and statistical studies, the FAA
dismissed concerns about violations of the ADEA on the
grounds that “safety...is paramount,” App. B at a-72,
observing that “concerns regarding aging pilots and
underlying the original rule have not been shown to be invalid
or misplaced.” App. B at a-53.
The Age 60 Rule and the ADEA
Because the ADEA had not been enacted when the
Age 60 Rule was promulgated, the initial challenges to the
rule did not address age discrimination issues. The rule was
first challenged as an abuse of the FAA’s discretion under the
Federal Aviation Act and upheld as a reasonable exercise of
discretion. Air Line Pilots Ass’n Int’l v. Quesada, 276 F.2d
892 (1960), cert. denied, 366 U.S. 962 (1961). O’Donnell
v. Shaffer, 491 ~ 2d 59 (D.C. Cir. 1974).
three accidents involved improper procedure by the flight crews that
were the apparent result of inexperience and lack of proper training.
See 60 Fed. Reg. 16,232 (1995).
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oa aed Reba asi 04 He
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With the enactment of the ADEA in 1967, it became
illegal for an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.”
29 U.S.C. §623(a)(1). An exception was allowed in
circumstances where “age is a bona fide occupational
qualification reasonably necessary to the normal operation of
the particular business.” 29 U.S.C. §623(f)(1).
Initially the ADEA was administered by the
Department of Labor which issued interpretations that cited
the Age 60 Rule as an example of a BFOQ. Courts
accordingly deferred to the agency interpretation. See, e.g.,
Starr v. FAA, 589 F.2d 307, 313 (7* Cir. 1978). Then, in
1981, the administration of the ADEA was transferred to the
newly created Equal Employment Opportunity Commission.
The EEOC issued new interpretations concerning the BFOQ
exception, deleting the Age 60 Rule as an example of a
BFOQ, among others, “to avoid the appearance that those
examples had received the imprimatur of the Commission,”
and singling out the “controversial” Age 60 Rule as “Most
notable in this regard.” 46 Fed. Reg. 47,725 (1981).
The EEOC’s opposition to the Age 60 Rule has
remained outspoken and vigorous. In the administrative
proceedings below the EEOC submitted letters to the FAA in
both the Age 60 Rule docket and the Commuter Rule docket
asserting the Commission’s position that “The EEOC does not
believe that a chronological age limitation for commercial
pilots is a BFOQ because pilot skills and health can be
assessed accurately on an individual basis regardless of age.”
R. 379. See also, R. 555-59. The EEOC cited five previous
occasions in which it officially objected to the rule. R. 556,
eS
10
In addition, the EEOC aggressively, and often
successfully, pursued litigation against employers who
attempted to use the Age 60 Rule to justify mandatory
retirement of pilots who were not operating under Part 121 or
flight engineers who were no subject to the rule.° See, e.g.,
EEOC v. Boeing Corp., 843 F.2d 1213 (9 Cir. 1988), cert.
denied, 488 U.S. 889 (1988); EEOC v. Pan American World
Airways, Inc., 52 Fair Empl. Prac. Cas. (BNA) 940
(N.D.Cal. 1988); EEOC v. Northwest Airlines, Inc., 49 Fair
Empl. Prac. Cas. (BNA) 1433 (W.D. Wash. 1987). Many
private litigants also successfully challenged employer
retirement policies on the grounds that the Age 60 Rule did
not qualify as a BFOQ for pilots or flight engineers who were
not directly subject to the rule. E.g., Western Air Lines, Inc.
v. Criswell, 472 U.S. 400 (1985); Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111 (1985); ; Tuohy v. Ford Motor
Co., 675 F.2d 842 (6" Cir. 1982).’
Prior to the present proceedings, and a related
challenge in the Sixth Circuit, Coupé v. Federal Express
Corp., 121 F.3d 1022 (6th Cir. 1997), petition for cert.
*All aircraft flying under Part 121 are required to have at least
a pilot and a copilot. 14 C.F.R. §121.385(c)(1). In addition, many
types of large commercial aircraft require a second officer, or flight
engineer who is also a pilot. The flight engineer’s duties include
management of cabin pressurization, engine and fuel management, and
control of the electrical and hydraulic systems.
’ The courts are not unanimous on this point. Other courts
have upheld jury determinations that age was an appropriate BFOQ for
flight engineers or corporate pilots because of the particular
circumstances of their operations. E.g., EEOC v. American Airlines,
Inc. , 48 F.3d 164 (5" Cir. 1995); Williams v. Hughes Helicopters,
Inc. , 806 F.2d 1387 (9 Cir. 1986); Jervolino v. Delta Air Lines, Inc.,
796 F.2d 1408 (11th Cir. 1986).
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filed, No. 97-1012 (Dec. 18, 1997), neither the EEOC nor
private litigants directly asserted that the Age 60 Rule was in
violation of the ADEA for pilots operating under Part 121.
See, e.g., Aman v. FAA, 856 F.2d 946, 956, n. 13 (7 Cir.
1988); Baker v. FAA, 917 F.2d 318 (7 Cir.), cert. denied,
499 U.S. 936 (1991) (reviewing the FAA’s, refusal to grant
exemptions to the rule while declining tv review asserted
ADEA conflict.).
The Present Proceedings
Following the FAA’s announcement that the Age 60
Rule would be maintained and extended, the three petitioners
here filed a petition for review of the FAA’s order in the D.C.
Circuit, asserting jurisdiction under 49 U.S.C. §46110(a).°
The appeal had two bases: (1) that the Age 60 Rule was in
conflict with the ADEA’s prohibition on employment
discrimination, and (2) that the FAA’s decision constituted an
abuse of discretion under the Administrative Procedure Act,
5 U.S.C. § 701, et. seg., because, among other reasons, the
FAA failed to consider reasonable alterna: “s to age
discrimination and failed to explain adequate’y why older
pilots were treated differently from other piic. groups who
demonstrated an equal or greater safety risk. App. A at a-6-7.
The panel rejected petitioners ADEA challenge on the
grounds that the ADEA is directed solely to employers and
*Two petitions for review were filed and then consolidated.
The original petition sought review of the FAA’s December 20, 1995
order. In addition, petitioner Reiners had filed a petition for exemption
from the rule and the Professional Pilots Federation had filed a petition
to repeal the rule. These petitions, formally denied on December 28,
1995, were the subject of the second petition for review.
12
thus “places no substantive limitation upon the [FAA’s]
authority to act as a regulator of the airline industry,” so that
“The general prohibition of the ADEA, addressed as it is to
employers, should not be read by mere implication to override
the specific grants of authority to the FAA in 49 U.S.C.
§44701.” App. A at a-8. The panel therefore concluded that
it need not address the issue of whether the Age 60 Rule
qualified as a BFOQ. Id.at a-9. The dissent joined in this
portion of the opinion. /d. at a-26.
The panel majority also upheld the FAA on the APA
challenge. On the assumption that it was required to afford
the FAA’s determination “considerable deference,” App. A at
a-10, the panel determined that the FAA had given “adequate
consideration” to petitioners’ arguments, Jd. at a-13, that the
agency’s rejection of their objections was “not unreasonable,”
Id. at a-14 or had been “adequately explained,” Jd. at 19, and
that, therefore, “the FAA was not arbitrary and capricious, in
violation of the APA.” Id. at A-24.
Judge Wald, in sharp dissent, argued that “the FAA’s
justification for the rule simply does not pass muster under the
APA,” App. A at a-26. After reviewing inconsistencies in
the FAA’s application in the rule, the agency’s review of the
medical and statistical data, its policy of granting waivers to
younger pilots with a history of cardiovascular or
neurological disorders while denying them to older pilots, and
noting that in European and Asian countries the age 60
limitation has been widely abandoned, she concluded that “the
FAA has failed to provide a reasoned explanation for its
decision to retain the Age 60 Rule.” Jd. at a-39. She also
dissented from the court’s denial of the petition for rehearing.
App. C at a-77, and filed a detailed dissent to the court’s
denial of petitioners’ suggestion for rehearing en banc.
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-
mY
;
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13
REASONS FOR GRANTING THE WRIT
I
THE DECISION BELOW IS IN CONFLICT
WITH THE ADEA, EEOC REGULATIONS,
AND THIS COURT’S DECISION IN
WESTERN AIR LINES V. CRISWELL.
The ADEA prescribes that it is unlawful for an
employer “to discharge any individual...because of such
individual’s age.” 29 U.S.C. §623(a)(1). Age-based
discharge may be permitted, however, “where age is a bona
fide occupational qualification reasonably necessary to the
normal operation of the particular business....” 29 U.S.C.
§623(f)(1).
The court below concluded that the Age 60 Rule, a
regulation not required by the FAA’s governing statute, did
not violate the ADEA because the FAA was not bound by a
Statute that was addressed to employers, and because the
“general prohibition” of the ADEA “should not be read by
mere implication to override the specific grants of authority to
the FAA in 49 U.S.C. §44701.” App. A at a-8. Finding the
Federal Aviation Act supreme, the D.C. Circuit saw no need
to determine whether the Age 60 Rule qualified as a BFOQ
under the ADEA. In so holding, the court of appeals departed
from established principles of statutory interpretation and left
airline employers in a position where they are required to
violate the express command of the ADEA without having to
demonstrate that they come within the act’s exception for a
BFOQ.
The underlying premise of the court’s opinion is that
i4
the ADEA’s prohibition is “general” while the FAA’s grant of
authority is “specific.” This assumption is belied by the plain
language of the statutes themselves. The ADEA is as specific
in its prohibition of age based discharge, 29 U.S.C.
§623(a)(1), as it is about limiting the permissible exceptions
to specific circumstances that include proving that age is a
BFOQ, 29 U.S.C. §623(f)(1). The Federal Aviation Act, by
contrast, makes no reference to any power to prescribe age
limits as part of its regulatory powers and only the most
general reference to a power to regulate the “periods of
service” of airmen and “practices...necessary for safety in air
commerce.” 49 U.S.C. §44701(a)(4), (5).°
By granting primacy to the vague generalities of the
Federal Aviation Act, the court below violated settled
principles of statutory interpretation. See, e.g.; Patterson v.
McLean Credit Union, 491 U.S. 164, 181 (1988) (“We should
be reluctant...to read an earlier statute broadly where the
result is to circumvent the detailed remedial scheme
constructed in a later statute.”); Morton v. Mancari, 417 U.S.
535, 550-51 (1993) (“Where there is no clear intention
otherwise, a specific statute will not be controlled or nullified
by a general one....”).
*The Federal Aviation Act gives the administrator authority to
regulate “maximum hours or periods of service of airmen,” referring to
the FAA’s authority to regulate the hours and frequency with which
airmen could be required to be on duty. 49 U.S.C. §44701(a)(4). See,
€.g., Flight Crewmember Duty Period Limitations, Flight Time
Limitations and Rest Requirements, 60 Fed. Reg. 65,951-52 (1995).
The court below quoted the statute to refer to the “period of service for
airmen,” App. A at a-8 (emphasis added), apparently assuming that this
“period” encompassed age limitations. This was both a misquotation
and a misreading of the statute.
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15
Implicit in the analysis of the FAA and the D.C.
Circuit is the assumption that safety is “paramount,” App. B
at a-74, and that therefore the objectives of the Federal
Aviation Act take precedence over those of the ADEA. This
analysis ignores the fact that the ADEA itself, the EEOC’s
regulations interpreting the ADEA, and a leading decision of
this Court allow for public safety to be weighed as a factor in
determining whether age based prohibitions qualify as a
BFOQ. The ADEA allows an age cutoff to be a BFOQ if it
is “reasonably necessary to the normal operation of the
particular business.” 29 U.S.C. §623(a)(1). EEOC
regulations interpreting the statute provide that:
(a) Whether occupational qualifications will be
deemed to be “bona fide” to a specific job and
“reasonably necessary to the normal operation
of the particular business,” will be determined
on the basis of all the pertinent facts
surrounding each particular situation. It is
anticipated that this concept of a bona fide
Occupational qualification will have limited
scope and application. Further, as this is an
exception to the Act, it must be narrowly
construed.
(b) An employer asserting a BFOQ defense
has the burden of proving that (1) the age limit
is reasonably necessary to the essence of the
business, and...(3) that some of the individuals
so excluded possess a disqualifying trait that
cannot be ascertained except by reference to
age. Ifthe employer’s objective in asserting a
BFOQ is the goal of public safety, the
employer must prove that the challenged
16
practice does indeed effectuate that goal and
that there is no acceptable alternative which
would better advance it or equally advance it
with less discriminatory impact.
29 C.F.R. §1625.6 (emphasis added).
The EEOC regulations were explicitly approved by this
Court in Western Air Lines v Criswell, 472 U.S. at 412,
which also confirmed that “Congress expressly decided that
problems involving age discrimination in employment should
be resolved on a “case-by-case basis’ by proof to a jury.” Id.
at 422. Moreover, Criswell established that safety
considerations do not justify a departure from the statute’s
requirement that the employer establish a BFOQ, but rather
that safety considerations were to be weighed as part of the
determination of whether a specific age constituted a BFOQ
for a particular job. Id. at 419. The Court also observed that
safety considerations “do not relieve the employer from its
burden of establishing a BFOQ by the preponderance of the
credible evidence.” Id. at 419, n. 29.
Although Criswell did not involve pilots operating
under Part 121, there is no suggestion in the opinion that the
Court approved of the rule as it applied to those pilots.
Indeed, in TWA v. Thurston the Court observed that the pilots
in that case were not challenging the rule as it applied to
captains, but noted that the “EEOC wishes to avoid any
appearance that it endorses the rule.” 469 U.S. at 121, n. 17.
This implies that the Court viewed the legality of the Age 60
Rule as unsettled.
Criswell, the leading case construing the BFOQ
exception, involved airplane operational jobs closely
17
analogous to the pilot jobs covered by the Age 60 Rule.
Surprisingly, it was not distinguished nor even cited in the
D.C. Circuit’s decision. The Criswell decision cannot be
ignored, however, because it requires an employer to justify
age-based retirement by proving that it is a BFOQ fora
particular job. The decision below relieves the employer of
that burden. Thus, the decision of the court below is in direct
conflict with Criswell.
It is an established principle of statutory construction
that when two statutes are in conflict a court should “give
effect to each...while preserving their sense and purpose.”
Watt v. Alaska, 451 U.S. 259, 267 (1981) (citations omitted).
Where, as here, the conflict is between a regulation and a
statute, the policy is even more compelling. But instead of
trying to reconcile the competing policies of the differing
statutes by following the analysis set forth in Criswell, the
court below arbitrarily determined that the FAA could ignore
the congressional policies expressed in the ADEA. Therefore,
despite the express disapproval of the EEOC, the FAA could
(1) relieve the employer of the burden of proving that there is
no acceptable alternative to an age prohibition that will
advance the goal of public safety, and (2) require that an age-
based prohibition on employment be applied not on a case-by-
case basis, but to all pilots engaged in Part 121 operations,
irrespective of the equipment used, the route flown, or
whether passengers are carried. The D.C. Circuit’s approach
repudiates the plain language of the ADEA, the EEOC
regulations, and the directives of this Court in Criswell.
The importance of the civil rights policies underlying
the ADEA was recently confirmed in this court’s decision in
Oubre v. Entergy Operations, Inc., _U.S.___, 1998 U.S.
Lexis 646 (No. 96-1291, January 26, 1998), which held an
18
employee’s voluntary waiver of her ADEA claim to be
voidable because enforcement of the waiver “would frustrate
the statute’s practical operation as well as its formal
command.” 1998 Lexis 646 at *9. Here, the right of the
airline pilot to require his employer to establish that an age-
based prohibition qualifies as a BFOQ is similarly frustrated.
Although the ADEA is not directed to government
agencies in their regulatory capacity, it does not follow that an
agency is free to regulate in a manner that subverts
“congressional policy and the regulations of the agency that
administers that policy. The holding of the court below
_constitutes serious error for three reasons: (1) It implies an
exception to the ADEA that is not expressed in statute nor
supported by any legislative history or subsequent case law;
(2) It creates a situation in which the employer is required, by
one agency, to violate the regulations of another agency; (3)
It ignores this Court’s determination in Criswell that (a)
exceptions to the ADEA must be evaluated on a “case-by-case
basis,” and that (b) age limits justified on grounds of safety
should be subject to analysis under the ADEA’s exception for
a bona fide occupational qualification.
eee PR ea MIS A
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i
THE COURT BELOW APPLIED AN
INSUFFICIENTLY RIGOROUS STANDARD OF
REVIEW TO A REGULATION THAT INFRINGED
ON IMPORTANT STATUTORY POLICIES.
Even if the court of appeals were correct in its holding
that FAA’s regulatory power may override the civil rights
policies underlying the ADEA, it does not follow that the
agency’s discretion to thwart the established policy of Congress
and other administrative agencies is as broad as it would be if
these considerations were absent. The court below reviewed
the FAA’s decision here affording the agency the “usual—and
considerable—deference we show an agency when it adopts a
rule implementing a statute it is charged with administering.”
App. Aata-10. The dissent, by contrast, urged that because
the ADEA “manifests our country’s rejection of measures that
discriminate against individuals solely because of their age” it
follows that the FAA cannot “ignore the ADEA altogether,”
and that congressional policies embodied in the ADEA impose
a “duty on the FAA to try to obtain data that might allow it to
do away with its current reliance on an arbitrary across-the-
board age cutoff.” App. A at a-38. Although the dissent
purported to concur with an “arbitrary and capricious” standard
of review, App. A at a-26, n.2, Judge Wald’s analysis properly
faulted the FAA for not giving special consideration to federal
age discrimination policy in its exploration of alternatives to
the Age 60 Rule.
In Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 173-74 (1962) this Court articulated the principle
20
that when an agency administers its statute in a manner that
potentially conflicts with another agency there is the danger
that “it may trench upon the other’s jurisdiction, and, because
of lack of expert competence, contravene the national policy”
administered by the other agency. Consequently, the Court
held that in such situations, absent a “compelling justification,”
an agency’s remedy must be “precisely and narrowly drawn.”
Thus, where competing statutory policies are involved, an
agency must be especially diligent to try to accommodate all of
the policies, not just its own. “Frequently the entire scope of
Congressional purpose calls for careful accommodation of one
statutory scheme to another, and it is not too much to demand
of an administrative body that it undertake this accommodation
without excessive emphasis upon its immediate task.” Southern
Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).
This heightened standard of review is fully consistent
with the principles of deferential administrative review
enunciated in Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29 (1993) and Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
Under the Administrative Procedure Act, a reviewing court
shall “hold unlawful and set aside agency action, findings, and
conclusions found to be...in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right....” 5
U.S.C. §706(2)(C). “[T]he court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842-43. It follows that an agency is not
entitled to deference when it interprets another agency’s
statute. See, e.g., Department of the Treasury v.. FLRA, 837
F.2d 1163, 1167 (D.C. Cir. 1988) (“when an agency
interprets a statute other than that which it has been entrusted
to administer, its interpretation is not entitled to deference”);
IRS Fresno Serv. Center v. FLRA, 706 F.2d 1019, 1023 (9th
21
Cir. 1983) (“While this court may give ‘considerable’ weight
to the Authority’s interpretation of the Labor-Management
Chapter, no such deference is owed to the Authority’s reading
of an EEOC regulation or to the Authority’s resolution of the
conflict between the statute and the EEOC regulation.”).
To the extent that the court below perceived a
heightened standard of review to conflict with the Chevron
“principle of deference to administrative interpretations,” , 467
U.S. at 844, there is all the more reason for this Court to
correct misguided policy. One commentator has noted:
Where the agencies themselves conflict in their
interpretations, there is no room for the doctrine
of limited review. In such a case, the dispute
about the agencies’ interpretation must be
treated as a zero-sum game to be resolved by
the judicial umpire. While this may be contrary
to Gray v. Powell'°-Chevron, it accords with
common sense.
Bemard Schwartz, Administrative Law §10.38 (3d ed. 1991).
As Judge Wald ably pointed out in her dissent, and as
the Seventh Circuit predicted in the Baker case, see infra at 24-
25, the Age 60 Rule can no longer be justified in light of the
recently developed data that disproves the assumptions
underlying the rule and the FAA’s inconsistent application of
the rule. For example, the FAA applies the rule to air cargo
operations that do not endanger any passengers, while
exempting air taxis and corporate operations that may carry
substantial numbers of passengers. App. A at a-30-31. The
"Gray v. Powell, 314 U.S. 402 (1941).
22
FAA refuses to grant waivers to pilots over the age of 60 in
demonstrably good health while it routinely grants medical
waivers to younger pilots who have a history of cardiovascular,
neurological, and psychological disorders. Jd. At 29. The
FAA contends that it would be dangerous to permit pilots over
the age of 60 to fly, even if carefully screened, although the
medical studies that the FAA relies upon recommend that these
pilots be granted waivers. Id. at a-36. These policies are
maintained without exception even though European and Asian
pilots fly past the age of 60 and routinely fly into U.S. airspace
without any observable risk to safety. Id. at a-36.
These inconsistencies would justify review of the panel
majority’s holding even if the FAA’s policy did not infringe on
congressional civil rights policy, as expressed in the ADEA,
EEOC regulations and Criswell. But the presence of these
competing policies, and the FAA’s stubborn refusal to consider
alternatives that would avoid a conflict with the ADEA,
required that the D.C. Circuit apply a stricter standard of
review than the “arbitrary and capricious” standard that was
applied.
The issue here is an important one because it goes to the
heart of agency rulemaking power under the Administrative
Procedure Act. Although it may be proper to allow an agency
great discretion when it acts solely within the confines of its
own governing statute, courts should not be so deferential
where agency rules intrude on the governing statutes and
regulations of other agencies. Power unrestrained soon
becomes power abused. The court below erred in affording the
FAA’s Age 60 Rule a degree of deference that was
inappropriate to a regulation that deprived pilots of the civil
rights guarantied to them by statute.
ey ‘ Siig
iil
THE DECISION BELOW IS IN CONFLICT
WITH THE REASONING AND OUTCOME
OF DECISIONS IN THE 6™, 7™,
AND 9TH CIRCUITS.
Although no court has held the Age 60 Rule to be
invalid as applied to Part 121 pilots, other circuit courts that
have reviewed the rule have reached conclusions that stand in
stark conflict to the conclusions of the court below. In view of
the importance of the underlying issues of administrative law
and civil rights law, the need for direction from this Court is
manifest.
Less than three weeks after the court below issued its
decision, the Sixth Circuit Court of Appeals rendered its
opinion in Coupé v. Federal Express Corp., in which the court
upheld the district court’s holding that the Age 60 Rule
constitutes a BFOQ as a matter of law for a pilot engaged
solely in cargo operations. The Sixth Circuit reasoned that
“The FAA adopted the age 60 rule for reasons that might well
support a BFOQ defense if the FAA were the employer.” 121
F.3d at 1026. Thus, while the court below holds that the Age
60 Rule supersedes the ADEA, and therefore does not require
Status as a BFOQ, the Sixth Circuit holds that the Rule
qualifies as a BFOQ as a matter of law. The reasoning of the
two circuits and the premises on which they derive their
outcomes are exactly opposite.
The Ninth Circuit, on the other hand, has asserted that
the Age 60 Rule does not qualify as a BFOQ, although its
24
holding applied to pilots who were not operating under Part
121. In EEOC v. Boeing Co., the court rejected a
manufacturer’s contention that The Age 60 Rule could establish
a BFOQ for corporate test pilots, observing that “No authority
called to our attention justifies deference to an [FAA]
determination in the administration of the ADEA.” 843 F.2d
at 1217. Moreover, the court noted that:
There is serious doubt that the FAA rule reflects
a determination by FAA that age 60 is a BFOQ
as defined by the ADEA for the commercial
pilots to whom it applies, much less a BFOQ
for Boeing pilots. Although the FAA’s Age-60
Rule has been sustained as a proper exercise by
FAA’s rulemaking and regulatory power, it has
never been tested against ADEA’s requirements
for BFOQ even for the commercial pilots.
Id, at 1220.
Where the Ninth Circuit asserted that the Age 60 Rule
does not qualify as a BFOQ, the Seventh Circuit criticized the
factual assumptions underlying the rule in the Aman and Baker
cases and warned that the rule would no longer withstand
judicial review under the Administrative Procedure Act unless
the FAA could produce more compelling scientific data linking
the age cutoff to pilot performance. In Aman, a group of pilots
sought to be exempted from the Age 60 Rule after being
carefully screened by medical and psychological experts. On
review of the FAA’s blanket denial of the petitions, the
Seventh Circuit remanded the case for further findings,
observing that the FAA’s “progress in developing an
understanding of the relationship between aging and flight
performance has been disappointing.” 856 F.2d at 949.
25
On remand, the FAA analyzed the data further and
again denied all the petitions. The FAA’s decision was
reluctantly upheld by a panel majority in the Baker case on the
premise that the panel was “not prepared to overrule the agency
in a matter of such immense sensitivity as this one,” but with
the admonition that “Obviously there is a great body of opinion
that the time has come to move on. The agency must give
serious attention to this opinion.” 917 F.2d at 323. The
dissenting judge bluntly termed the agency’s refusal to grant
exemptions “a fraud.” Id. at 327.
Aman and Baker were decided before the Hilton Study
confirmed that older pilots were as safe or safer than younger
pilots. In addition, since those cases were decided, many
foreign countries, including the 15 nation European Joint
Aviation Authorities have abandoned an age 60 limit. App.
B at a-73."" Thus, developments since Aman and Baker have
further undermined any justification for an age 60 cutoff.
Moreover, as the dissent noted below, a key factor in the Baker
court’s reluctance to hold the rule invalid was that the pilots in
that case had the stringent burden of proving that the FAA’s
grant of exemptions would not impair safety. Here, the FAA
is required to provide a sufficient explanation demonstrating
that its actions are reasonable. See App. A at a 28, n.3, 917
F.2d at 322, n. 6 . It is highly doubtful that the precarious
majority in Baker would have approved the rule in its current
“Because of treaty obligations, these pilots may legally fly in
the United States while their American colleagues may not. App. A at
a-21. Some foreign courts have held that age-based retirement
requirements are illegal. The Australian Industrial Relations Court
reinstated a Quantas Airlines pilot who was required to retire age 60,
after finding no connection between the mandatory retirement age and
aircraft safety. Christie v. Quantas Airways Limited (No. 2), 68 IR 248
(Aust. Indus. Ritns. Ct. 1996).
posture.
The disparate outcomes of the decisions of the courts
that have struggled with the Age 60 Rule and other mandatory
employment age limits, manifest a more general need for the
guidance and direction of this Court. As it stands, age is a
bona fide occupational qualification for pilots engaged in cargo
operations, Coupé v. Federal Express, but not for corporate
pilots who carry passengers, Tuohy v. Ford Motor Co. Itisa
BFOQ for helicopter test pilots, Williams v. Hughes
Helicopters, but not for passenger airplane test pilots, EEOC
v. Boeing. It is a BFOQ for some flight engineers, TWA v.
Thurston, but not for other flight engineers engaged in similar
operations, EEOC v. American Airlines This Court’s
intervention is needed to establish more clear guidelines for
when an employer must prove that age is a BFOQ and what
criteria need to be considered in the determination of a BFOQ.
In sum, the court of appeals’ opinion here conflicts with
the outcome or reasoning of at least three other circuits, in
addition to this Court’s own opinion in Criswell. Its premise
is antithetical to the premise of the Sixth Circuit in the Coupé
case. Its result and rationale are antithetical to the Ninth
Circuit’s decision in Boeing. Its analysis of the evidence is at
odds with the Seventh Circuit’s analysis in Aman and Baker.
Direction from this Court is needed to clarify these confusing
and contradictory opinions.
. &
RS SRA ni OE AS cil
Se x
27
CONCLUSION
This case combines important issues of administrative
law and equally important civil rights issues that affect the
careers of thousands of pilots and impacts all occupations in
which safety can serve as an excuse for age-based prohibitions.
Certiorari should be granted in order to (1) define the proper
approach that courts should apply to the interpretation of
conflicting statutes and regulations; (2) establish a clear
standard of review for agency regulations that impair the
enforcement of statutes and regulations administered by other
agencies; and (3) resolve longstanding conflicts among the
circuits and between the court below and this court as to the
proper status of the Age 60 Rule under the ADEA.
Respectfully submitted,
NICHOLAS H. COBBS
Counsel of Record
LAW OFFICES OF NICHOLAS H. COBBS
Suite 600, 1815 H Street, NW
Washington, D.C. 20006-3604
(202) 452-8222
MICHAEL J. PANGIA
GILMAN & PANGIA
Suite 600, 1815 H Street, NW
Washington, D.C. 20006-3604
(202) 466-5100
Appendix
a-l
APPENDIX A:
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PROFESSIONAL PILOTS FEDERATION,
ETAL.,
PETITIONERS
V. No. 95-1604
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
Consolidated with
Nos. 96-1025, 96-1026
On Petitions for Review of Orders of the
Federal Aviation Administration
Argued: October 3, 1996
Decided: July 15, 1997
Before: WALD, GINSBURG, and RANDOLPH, Circuit Judges.
Nicholas H. Cobbs, argued the cause for petitioners, with
whom Michael J. Pangia was on the briefs.
Christine N. Kohl, Attorney, U.S. Department of Justice,
argued the cause for respondent, with whom Frank W. Hunger,
Assistant Attorney General, and Robert S. Greenspan,
Attorney, were on the brief.
a-2
Edgar N. James and Marta Wagner were on the brief for
amicus curiae Allied Pilots Association. Martha L. Walfoort
entered an appearance.
Aidan D. Jones was on the brief for amicus curiae South-
west Airlines Pilots’ Association.
Opinion for the Court filed by Circuit Judge GINSBURG.
Opinion concurring in part and dissenting in part filed by
Circuit Judge WALD.
OPINION
GINSBURG, Circuit Judge: The Professional Pilots
Federation and two individual pilots petition for review of two
decisions of the Federal Aviation Administration: not to
institute a rulemaking to relax the FAA Rule that requires
commercial airline pilots to retire at age 60, and to extend
application of the Rule to commuter airline operations. The
Pilots contend, first, that the Rule unlawfully requires airlines to
violate the Age Discrimination in Employment Act, see 29
U.S.C. § 621 et seq., and, second, that the FAA acted arbitrarily
and capriciously, in violation of the Administrative Procedure
Act, when it decided to retain and expand the scope of the Rule.
Finding merit in neither contention, we deny the petitions for
review.
" te ae
I. Background
The FAA first promulgated the Age 60 Rule in 1959
pursuant to its mandate under the Federal Aviation Act of 1958
a-3
to ensure air safety. 24 Fed. Reg. 9767 (December 5, 1959).
See 49 U.S.C. § 44701(a)(4) (authorizing Administrator to
promulgate “regulations in the interest of safety for the ...
periods of service of airmen"), 49 U.S.C. § 44701(c) (requiring
Administrator to regulate "in a way that best tends to reduce or
eliminate the possibility or recurrence of accidents in air
transportation"); 49 U.S.C. § 44702(b)(1)(A) (requiring
Administrator to consider “the duty of an air carrier to provide
service with the highest possible degree of safety" when issuing
an airman, air carrier, or other certificate); Air Line Pilots
Ass'n, Int'l v. Quesada, 276 F.2d $92, 897-98 (2d Cir. 1960).
The agency concluded that the Rule would promote air safety
after finding “that available medical studies show that sudden
incapacitation due to heart attacks or strokes becomes more
frequent as men approach age sixty and present medical
knowledge is such that it is impossible to predict with accuracy
those individuals most likely to suffer attacks." Quesada, 276
F.2d at 898. The Second Circuit, reasoning that it was not for
a court to substitute its own “untutored judgment for the expert
knowledge" of the agency, accepted this conclusion and
dismissed an early challenge to the Rule. Jd.
The FAA has reconsidered the Rule on several
occasions. In the early 1960s, the agency began, but never
completed, a study to determine the feasibility of testing
individual pilots over the age of 60 in order to determine
whether they remained fit to fly. See Aman v. FAA, 856 F.2d
946, 948 (7th Cir. 1988). In 1970 the Air Line Pilots
Association called upon the FAA to replace the blanket
prohibition of the Age 60 Rule with a regime of individualized
performance tests and medical evaluations, but the agency
decided to retain the Rule because "an increase in the number of
medical examinations administered to a given pilot ... would not
be an effective deterrent to incapacitation inasmuch as the
indices of such incapacitation are not now sufficiently
a-4
developed." See O'Donnell v. Shaffer, 491 F.2d 59, 61 (D.C.
Cir. 1974).
In 1979 the Congress directed the National Institutes of
Health to determine whether the Rule was still medically
warranted. See Pub. L. No. 96-171, 93 Stat. 1285; see also
Pilots Rights Ass'n v. FAA, 86 F.R.D. 174, 176 (D.D.C. 1980).
In its final report, the NIH concluded that there was "no special
medical significance to age 60 as a mandatory age for retirement
of airline pilots" but recommended that the age 60 limit be
retained nonetheless because there was still no “medical or
performance appraisal system that can single out those pilots
who would pose the greatest hazard because of early, or
impending, deterioration in health or performance." Report of
the National Institute on Aging, Panel on the Experienced
Pilots Study 1 (August 1981).
In 1982 the FAA considered relaxing the Rule in order
to allow a small group of pilots to continue flying until age 62
in order to generate data on their performance under actual
operating conditions. 47 Fed. Reg. 29,782 (July 8, 1982). The
FAA ultimately determined, however, that "no medical or
performance appraisal system can be identified that would single
out pilots who would pose a hazard to safety." 49 Fed. Reg.
14,692, 14,695 (April 12, 1984). Unable "to distinguish
those pilots who, as a consequence of aging, present a threat to
air safety from those who do not," the agency decided not to
experiment with changing the Rule. /d.
The present litigation was stimulated, at least in part, by
a 1993 study of the Age 60 Rule that was performed by Hilton
Systems, Inc. for the FAA's Civil Aeromedical Institute. The
Hilton Study correlated accident data for the period from 1976
to 1988 with pilot age and flying time. This analysis revealed
"no support for the hypothesis that pilots of scheduled air
a-5
carriers had increased accident rates as they neared the age of
60." Hilton Study at 6-2. On the contrary, the study found a
"slight downward trend" in accident rates as pilots neared the
age of 60. The authors cautioned, however, that this decrease
might have resulted from "the FAA's rigorous medical and
operational performance standards screen[ing] out, over time,
pilots more likely to be in accidents."
Shortly after publication of the Hilton Study the FAA
announced that it was again considering whether to institute a
rulemaking concerning the Age 60 Rule and invited comments
from the public on various aspects of the Hilton Study. 58 Fed.
Reg. 21,336 (April 20, 1993). The agency held a public hearing
in September 1993 at which 46 members of the public made
presentations. The agency also received more than a thousand
written comments.
In July 1993 the Professional Pilots Federation filed with
the FAA a rulemaking petition to repeal the Rule. The Pilots
maintained that "time and empirical evidence have shown that
the blanket elimination of the country’s most experienced pilots
is not justified in the interests of safety and, therefore, is
arbitrary and capricious, and violates this country's policy of
prohibiting employment discrimination on the basis of age."
In early 1995 after a series of accidents involving
commuter airlines, the FAA proposed in a separate rulemaking
to bring certain commuter operations, previously conducted
under Part 135, under Part 121. 60 Fed. Reg. 16,230 (March
29, 1995). These operations would then become subject to the
more stringent safety standards of Part 121, including the Age
60 Rule, relaxation of which the agency was still considering in
the wake of the Hilton Study.
(MMi,
In December 1995 the FAA denied the Pilots’ petitions
to repeal the Age 60 Rule and decided not to institute a
rulemaking in response to the Hilton Study. 60 Fed. Reg.
65,977 (December 20, 1995). The agency determined that the
"concerns regarding aging pilots and underlying the original rule
have not been shown to be invalid or misplaced," and concluded
that the Rule was still warranted as a safety measure. Id. at
65,980. The FAA therefore retained the Rule, which provides
that:
No certificate holder may use the services of any person
as a pilot on an airplane engaged in operations under
[Part 121] if that person has reached his 60th birthday.
No person may serve as a pilot on an airplane engaged
in operations under [Part 121] if that person has reached
his 60th birthday.
14 CFR § 121.383(c) (1996). In addition the FAA adopted its
proposed rule bringing under Part 121 certain commuter
operations previously conducted under Part 135. 60 Fed. Reg.
65,832 (December 20, 1995). As a result, these commuter
operations became newly subject to the Age 60 Rule. The
Pilots petitioned this court for review of both rulemaking
decisions.
II. Analysis
The Pilots challenge the FAA's decision not to institute
a rulemaking to repeal the Age 60 Rule and its decision to apply
the Rule to commuter airlines as violations of both the ADEA
and the APA. First, the Pilots assert that by requiring the
airlines to discriminate on the basis of age the Rule is in "direct
conflict" with the ADEA. Second, they claim that the agency
violated the APA by: (1) not affording adequate consideration
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to the reasonable alternatives proposed by various commenters;
(2) reaching a decision that is against the
weight of the evidence; and (3) failing to provide any reasoned
basis for treating older pilots differently than other groups of
pilots who create as great or greater a safety risk.
A. The ADEA
The Pilots argue that the Age 60 Rule violates the
ADEA because it requires the airlines to discriminate against
older pilots and because the FAA need not have relied upon an
age-based Rule in order to achieve its objective of air safety.
The agency, we are told, could instead have implemented a
scheme of medical evaluations and individualized testing in
order to determine whether each pilot remains fit to fly. In
any event, in the ADEA the Congress spoke directly to the
role that age may play in employment decisions and the FAA
cannot—as a matter of logic if not of statutory
interpretation—countermand that clear statutory command
through an exercise of its rulemaking authority.
The TAA responds that the ADEA speaks only to
employers—including federal agencies acting in their role as
employers—and therefore places no substantive limitation upon
the agency's power to regulate airline safety pursuant to the
mandate of the Federal Aviation Act. In the alternative, the
FAA contends that if the ADEA does apply to the air safety
rules it promulgates, then the Age 60 Rule comes within the
exception in § 623(f)(1) of that statute for a bona fide
occupational qualification. 29 U.S.C. § 623(f)(1).
The FAA bases its first point upon the central provision
of the ADEA itself, which states that "it shall be unlawful for an
employer" to discriminate in employment upon the basis of age.
§ 623(a). The FAA argues that it promulgated the Age 60 Rule
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in its capacity not as an employer but as a regulator; in that
capacity the agency is specifically authorized, inter alia, to
prescribe "regulations in the interest of safety for the maximum
hours or period of service of airmen." 49 U.S.C. § 44701(a)(4);
see also id. at § 44702. Absent a provision in the ADEA
comparably specific or otherwise capable of overriding the
authorization of § 44701—"not withstanding any other
provision of law" comes to mind—the ADEA places no
limitation upon the rulemaking authority of the FAA.
The FAA also contrasts the ADEA with the
Rehabilitation Act, in which the Congress expressly subjected
the programmatic activities of the Government to the stricture
against discrimination. See 29 U.S.C. § 794(a) (providing that
no qualified person shall be discriminated against for a disability
“under any program or activity conducted by any Executive
agency"); see also Buck v. DOT, 56 F.3d 1406, 1408-09 (D.C.
Cir. 1995). Absent a similarly plain and unequivocal expression
of intent, the FAA urges that we ought not lightly infer that the
Congress intended to compromise its single-minded pursuit of
safety in the air.
We agree with the FAA that the ADEA places no
substantive limitation upon the agency's authority to act as a
regulator of the airline industry. The statute prohibits both an
employer in the private sector and an agency of the federal
government from discriminating upon the basis of age in making
employment decisions. 29 U.S.C. §§ 623, 633(a). Nothing in
the Act can plausibly be read to restrict the FAA from making
age a criterion for employment when its acts in its capacity as
the guarantor of public safety in the air. The general prohibition
of the ADEA, addressed as it is to employers, should not be
read by mere implication to override
the specific grants of authority to the FAA in 49 U.S.C. §
44701. If the Congress intends to limit the means available to
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the FAA in its pursuit of air safety, we trust it will say so rather
than leave the matter to the courts to infer. Therefore, we
conclude that the ADEA does not limit the authority of the ©
FAA to prescribe a mandatory retirement age for pilots; as a
result, we need not reach the question whether the Age 60 Rule
constitutes a bona fide occupational qualification within the
meaning of § 623(f)(1) of that Act.
B. The APA Challenges
We will defer to the FAA's decisions to retain the Age
60 Rule and to bring commuter airlines under the Rule unless
those decisions are "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A); Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 41 (1983). More particularly, the
agency must have offered a reasoned explanation for its chosen
course of action, see FEC v. Rose, 806 F.2d 1081, 1088 (D.C.
Cir. 1986), responded to "relevant" and "significant" public
comments, Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58
(D.C. Cir. 1977), and demonstrated that it afforded adequate
consideration to every reasonable alternative presented for its
consideration. See Public Citizen v. Steed, 733 F.2d 93, 103-04
(D.C. Cir. 1984).
With respect to its decision not to convene a rulemaking
in order to repeal or modify the Age 60 Rule, the FAA argues
that the appropriate standard of review is the even more
deferential standard we apply to an agency's decision not to
institute a rulemaking proceeding. Cellnet Communication,
Inc. v. FCC, 965 F.2d 1106, 1111-12 (D.C. Cir. 1992). That
more deferential standard of review is indicated, however, only
when the agency has clearly shown that “pragmatic
considerations" would render the usual and somewhat more
searching inquiry problematic because "the agency has chosen
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not to regulate for reasons ill-suited to judicial resolution, e.g.,
because of internal management considerations as to budget and
personnel or for reasons made after a weighing of competing
policies." See Bargmann v. Helms, 715 F.2d 638, 640 (D.C.
Cir. 1983) (reviewing FAA decision not to institute rulemaking
to require first-aid kits on commercial aircraft). In the case now
before us the decision not to institute a rulemaking looking
toward repeal of the Age 60 Rule was purportedly based upon
the merits of the existing Rule. We see no need, therefore, to
afford the agency more than the usual—and
considerable—deference we show an agency when
it adopts a rule implementing a statute it is charged with
administering. We shall therefore apply the arbitrary and
capricious standard of the APA.
2. Consideration of alternatives
Various parties filing comments before the FAA
proposed two alternatives to the present Rule. First, they
suggested periodic performance checks designed to determine,
on an individual basis, whether a pilot remains fit to fly.
Second, they proposed allowing a group of pilots over the age
of 60 to continue flying commercial passenger aircraft in order
to gather the data that the FAA would need to make a reasoned
decision about whether the current retirement age of 60 could
safely be moved up to perhaps age 62 or 63. The Pilots now
press both alternatives upon us.
a. Periodic performance checks
The FAA rejected periodic performance checks on the
ground that they only "verify the state of a pilot's performance
at the time of the checks." They do not detect "early or
subclinical cognitive defects that may subtly degrade
performance" and "do not predict whether an individual pilot's
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performance will degrade at any time in the future as a result of
age." The Pilots assert that rather than afford adequate
consideration to this proposal the agency blindly relied upon
its 1984 determination that there are no valid tests capable of
screening out pilots likely to suffer from age-related impairment.
The FAA, we are told, did not even acknowledge that a detailed
testing protocol had been presented to the agency
during a 1985 hearing before the House Select Committee on
Aging. The FAA also purportedly failed adequately to respond
to the EEOC's observation that several non-Part 121 operators,
most notably the Boeing Corporation, have adopted
individualized testing in order to settle various suits brought
against them under the ADEA. The Pilots fault the FAA for
responding to the EEOC's detailed comment with the simple
assertion that it had "not been apprised of the testing protocols
or of the results of any such testing, ha[d] not seen them
discussed in the medical literature, and ha[d] not been party to
the agreements."
The FAA responds by pointing out that it did evaluate
the specific testing regimens proposed by the commenters
before finally concluding that testing individual pilots is an
inadequate substitute for the Age 60 Rule. In the final rule
document the agency observed that available tests: (1) evaluate
only a pilot's present performance and cannot be used to predict
the sudden onset of an age-related impairment, such as early or
subclinical cognitive defects; (2) cannot measure the subtle
degradation of skills that may prove serious in the cockpit; and
(3) do not evaluate how a pilot responds to stress and fatigue.
The FAA contends that its response to the comment
submitted by the EEOC was entirely adequate in light of the
purely anecdotal evidence that the EEOC offered in support of
its assertion that individualized testing has proven to be a viable
substitute for a bright-line rule based upon age. The EEOC's
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principal evidence is that it reached a settlement agreement with
Boeing under which that company's pilots were for a time
allowed to continue flying until the age of 63. The FAA
acknowledges as much but is quick to point out that: (1) the
EEOC lawyer who oversaw the Boeing litigation observed in a
1991 article published by the Flight Safety Foundation that the
full impact of the agreement upon safety remained to be
assessed; (2) no account of Boeing's experience has yet been
published; (3) Boeing pilots are corporate pilots who do not fly
under Part 121; and (4) a Boeing representative had testified
before the agency that "neither the information uncovered as a
result of this effort nor subsequent Boeing ... experience with
our medical and neuropsychological protocols ... gives us
confidence that means are currently available to detect or
predict age-related problems which may have [an] adverse
[effect] on safety."
The Pilots also claim that the agency's rejection of
individualized testing for pilots over the age of 60 is inconsistent
with its acceptance of monitoring and testing for younger pilots
with certain known medical conditions. The FAA maintains
that it did in fact offer an adequate explanation for the apparent
inconsistency when it specifically found that, although a
younger pilot with a diagnosed medical condition
may be monitored,
such is not the case in aging, since there are no generally
applicable medical tests that can, at this time, adequately
determine which individual pilots are subject to
incapacitation secondary to either acute cardiovascular
or neurological events or to more subtle adverse
conditions related to decline of cognitive functioning.
60 Fed. Reg. at 65,984. For example, a pilot with a diagnosed
heart condition can be tested and monitored in order to
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determine whether there is a significant risk that he will suffer
a heart attack. The FAA allows this pilot to continue flying
provided that his doctors have determined that the risk of his
suffering a sudden unexpected impairment due to his heart
condition is de minimis. There are no tests, however, that can
accurately detezmine the risk of an apparently healthy but older
pilot suddenly being stricken by any one of the many potentially
disabling conditions that may accompany advancing age.
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. The EEOC did not offer any data
in support of its assertion that allowing pilots to fly until the age
of 63 would not compromise safety; the FAA simply cannot be
faulted for failing to explain away data that are not part of the
record.
Finally, we conclude that the FAA adequately explained
the difference in treatment it affords to pilots over the age of 60
who have no known medical condition and to younger pilots
who do have a known medical condition. The risk of allowing
the younger pilot to continue flying is negligible provided—and
it is this critical proviso that our colleague in dissent seems to
ignore—that "the agency has been able to develop a means of
assessment and surveillance specifically
designed to demonstrate the individual's capabilities and to
identify any adverse changes." Doctors are not only unable to
determine whether an older but apparently healthy pilot will be
afflicted with a dangerous condition; they are also unable to
predict with which of the myriad conditions that accompany
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advancing age an individual pilot is likely to be afflicted.” The
FAA cannot practically monitor for the onset, and thereby avoid
the consequences, of all potential hazardous medical conditions
in an older pilot. Therefore, it was not unreasonable for the
FAA to allow younger pilots with particular medical conditions
to continue flying while, at the same time, not allowing pilots
over the age of 60 to do so.
b. Selecting a group of pilots over the age of 60.
The FAA also rejected the suggestion that a group of
pilots over the age of 60 be permitted to continue flying under
Part 121 in order to generate the data needed for the FAA to
make an empirical judgment about whether the Age 60 Rule is
reasonable. The Pilots contend, without elaboration, that the
FAA failed to offer adequate consideration to this alternative.
The FAA responds that it rejected this proposal because it did
not have confidence that it could identify a cohort of vintage
pilots who would not be susceptible to subtle impairments or to
sudden incapacitation:
The FAA withdrew [a similar plan] in 1984 because
valid selection tests for the group did not exist. The
FAA was concerned that, without valid selection tests,
these pilots would create an unacceptable safety risk in
part 121 operations. The commenter does not suggest
any data that indicates [sic] that a group described [sic]
would be able to identify any such tests. The FAA has
the same concerns today.
“Contrary to the impression created by the dissent, the FAA did not
suggest “that it is more difficult to monitor known medical conditions in
an older pilot than in a younger pilot." Dissent at 3-4, n.3. Rather, the
agency's concern was that it is more difficult to detect an unknown
medical condition than to monitor a known medical condition.
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60 Fed. Reg. at 65,984.
As long as the FAA cannot identify good candidates for
the experiment that the Pilots propose, we can hardly conclude
that its refusal to run the experiment is arbitrary and capricious.
On the contrary, it would be unreasonable for the court to
require that the FAA periodically suspend its safety regulations
in order to determine anew, upon the basis of (potentially
disastrous) experience, whether they are still needed. Nor have
the Pilots shown that such experimentation with the safety of
passengers is permitted by the Federal Aviation Act. Indeed,
the Congress arguabiy forbade it by requiring the FAA to
“consider the duty of an air carrier to provide service with the
highest possible degree of safety in the public interest." 49
U.S.C. § 44701(d)(1)(A).
Nothing in the record suggests that the FAA has, but
refuses to act upon, the "valid selection tests" it would need in
order to identify a group of low-risk pilots over the age of 60
who might safely continue to fly. Therefore we must conclude
that the FAA did not act arbitrarily and capriciously— and was
quite possibly acting as required by law—when it refused to
waive the Rule in order to allow a selected group of pilots to fly
commercial passenger aircraft after attaining the age of 60.
2. The rationality of age-based risk assessment
The Pilots assert that, in the course of defending the Age
60 Rule, the FAA drew several distinctions that reveal a
" ‘basic inconsistency in its reasoning’ by applying similar
concepts differently in parallel situations." See Air Line Pilots
Ass'n v. FAA, 3 F.3d 449, 453 (D.C. Cir. 1993). In particular,
the Pilots maintain that the FAA's treatment of younger pilots,
of pilots who do not fly under Part 121, and of foreign pilots
.
a-16
cannot be reconciled with its treatment of Part 121 pilots over
the age of 60.
a. Younger pilots
The Pilots claim that it is arbitrary and capricious for the
FAA to ground older and more experienced pilots while
allowing younger pilots to fly even though a younger pilot is
more likely than an older pilot to cause an accident. To the
commenters who argued that this is a contradiction, the FAA
responded (in essence) that, however valuable experience may
be, it is no match for a heart attack. Implicit in the FAA's
decision is the view that a 40-year-old pilot with 15 years of
experience is a safer bet than a 61-year-old pilot with 36 years
of experience. The 61-year-old pilot's additional experience is
outweighed, that is, by the heightened probability that he will
lose his ability to fly safely—whether through gradual wear and
tear or a sudden episode—and the disastrous consequences if he
does. The FAA also maintains that the Pilots’ argument is
fundamentally flawed because it assumes that the FAA based its
decision to retain the Age 60 Rule solely upon accident data.
Accident data are one consideration, among many, that
influenced the FAA's decision to select age 60 as the cut off,
other data, such as the percentage of pilots suffering sudden
heart failure, or a significant loss of vision or hearing, were also
considered, and those data provide ample grounds for drawing
a distinction between younger and older pilots. Indeed,
according to the agency, all studies of the subject come to the
conclusion that some mandatory retirement age for pilots is
appropriate. The studies diverge only with regard to the precise
age at which retirement should be mandated.
Finally, the FAA questions the assumption, implicit in
the Pilots' argument, that relatively inexperienced pilots are
replacing more experienced pilots as a result of the Age 60
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Rule. Young pilots are rarely if ever given command of an
aircraft before they have had significant experience. Older
pilots, therefore, are typically “replaced by pilots who have
substantial experience as pilots in the first officer position, and
often as flight engineers before that."
We conclude that the FAA adequately justified its
decision to distinguish between younger pilots and those over
the age of 60. The agency reasonably concluded that the risk
inherent in allowing an older pilot to fly outweighs the benefit
of having a more experienced person in command. In contrast,
the risk of allowing a younger pilot to serve in a non-command
role is negligible while the benefit of allowing him to gain
experience is high.
b. Younger pilots with known medical conditions
The Pilots observe that the FAA sometimes will allow
a younger pilot with a serious medical problem to continue
flying even if his problem is characterized by a high rate of
ecurrence. It is arbitrary and capricious, the Pilots assert, to
forbid an apparently healthy pilot over the age of 60 to fly
because of the risk that he might have a first heart attack while,
at the same time, allowing a younger pilot to fly in spite of the
dramatically higher statistical risk that he might suffer a second
heart attack.
The FAA defends its policy of granting exemptions to
pilots who have experienced a serious medical problem on the
ground that it does so only when the risk of a recurrence can be
assessed adequately. A known condition can not only be
monitored but also, as in the case of alcoholism and some heart
conditions, controlled:
When a special issuance medical certificate is granted,
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the condition in question has been clearly identified, and
the agency has been able to develop a means of
assessment and surveillance specially designed to
demonstrate the individual's capabilities and to identify
any adverse changes. If that is not possible, certification
is not granted.
60 Fed. Reg. at 65,984. Meanwhile, the subtler forms of
physical and mental decline that may accompany aging often
cannot be detected, let alone monitored or controlled.
In sum, the FAA determined that there are techniques
for monitoring the health of pilots with certain medical
conditions but that there is not yet any way of predicting
whether and when an older pilot is likely to develop a condition
with a potentially serious impact upon his ability to fly an
airplane safely. This difference between the two groups is fully
adequate to warrant the distinction that the FAA has drawn
between them.
c. Corporate aircraft and air taxis.
The Pilots next assert that the FAA has applied the Age
60 Rule arbitrarily without regard for either the type of aircraft
being flown or the type of service being provided. Thus, the
Rule applies to cargo carriers, where no passengers are at risk,
but not to corporate aircraft and air taxis, where passengers are
at risk. The Pilots claim that this is utterly irrational. The FAA
responds that the distinction between common carriers of
passengers and cargo, which are subject to the Age 60 Rule,
and private carriers of passengers and cargo, which are not, is
found in the governing statute. The Congress directed the FAA
to consider the differences between "air transportation," defined
as the transportation of passengers or property by a common
carrier, 49 U.S.C. §§ 40102(a)(5), (24), & (25), and “other air
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commerce." See 49 U.S.C. § 44701(d)(1)(B). The Congress
also specifically required the FAA to consider the duty of air
carriers, defined elsewhere as common carriers, 49 U.S.C. §§
40102(a)(2), (5), (24), & (25), “to provide service with the
highest possible degree of safety in the public interest." See 49
U.S.C. § 44701(d)(1)(A). Accordingly, the agency considers
it appropriate to regulate common carriers more stringently than
it regulates “other air commerce." Insofar as that leaves
corporate aircraft and air taxis beyond the reach of the Rule, the
distinction is not unreasonable, says the agency: corporate
pilots do not serve the public as do common carriers; and while
air taxis do serve the public, unlike commuter airlines their
safety record has not been a source of concern for the FAA or
the NTSB, perhaps because their operations—typically
involving only a few short haul passengers and less
sophisticated equipment—place lesser demands upon their
pilots.
We conclude that the FAA adequately explained its
decision to apply the Age 60 Rule to pilots of commuter aircraft
but not to pilots of corporate aircraft and air taxis. The
Congress clearly left the FAA free to regulate corporate aircraft
operations at less than the "highest possible degree of safety."
See Quesada, 276 F.2d at 898 ("The Administrator did not act
unreasonably in placing greater limitations on the certificates of
pilots flying planes carrying large numbers of passengers who
have no opportunity to select a pilot of their own choice. The
Federal Aviation Act contemplates just such distinctions
between the regulations governing ‘air commerce’ and those
governing other air transportation").
As for excluding air taxi operations while extending the
Rule to commuter operations, we accept the FAA's point that
the NTSB had asked the agency specifically to consider
extending the Rule to commuter operations. 60 Fed. Reg at
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16,235. In responding to the NTSB's request, the FAA was not
obliged—contrary to our colleague in dissent, see dissent at
6—to consider whether the Rule might further improve safety
if applied to still other operations. Nor, we note, could such an
extension of the Rule in any way benefit the petitioners, indeed,
as the Seventh Circuit has observed, it would foreclose them
from a source of post-60 employment. See Starr v. FAA, 589
F.2d 307, 313 (1978).
d. Foreign pilots
Finally, the Pilots claim that it is arbitrary and capricious
for the FAA to allow a foreign carrier operating in U.S. airspace
to employ pilots who are over the age of 60 while prohibiting a
U.S. common carrier from employing even the healthiest of
pilots beyond that age. The FAA responds that as a signatory
of the Chicago Convention, see 61 Stat. 1180, T.LAS. 1591
(December 7, 1944) the United States is required to recognize
as valid any license issued by any other signatory, provided that
the requirements underlying such licenses are “equal to or above
the minimum standards which may be established from time to
time pursuant to this convention." See 61 Stat. at 1189; see
also 49 U.S.C. §§ 40105(b)(1)(A) & (B) (FAA must “act
consistently with obligations of the United States Government
under an international agreement," and "shall consider
applicable laws and requirements of a foreign country"). The
standards that have been established under the Chicago
Convention permit (but do not require) a country to allow
commercial pilots to fly beyond the age of 60. For this reason,
the FAA maintains, it must as a matter of law allow foreign
pilots to fly notwithstanding the Age 60 Rule.
We agree with the FAA that the mandate of § 40105
requires this inconsistency in the treatment of domestic and
foreign carriers and their pilots. Perhaps, however, experience
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with foreign pilots over the age of 60 flying commercial aircraft
in U.S. airspace will provide the FAA with the comparative data
it needs in order to evaluate empirically the continuing need for
the existing rule.
3. The weight of the evidence
The Pilots assert that the FAA not only placed
unwarranted emphasis upon evidence that supports retaining the
Rule but also downplayed significant evidence tending to
undercut that support. Thus, the FAA stressed that an NIH
panel had found in 1981 that pilot performance deteriorates
with age while ignoring the same panel's recommendation that
selected pilots over the age of 60 be allowed to fly in order to
generate data about the performance of older pilots.
The FAA responds that it did not give short shrift to the
NIH's recommendation that a limited number of older pilots be
allowed to fly in order to generate data. The FAA remains
unwilling to act upon this proposal because it knows of no
method for selecting a group of low-risk pilots over the age of
60.
We agree with the FAA that it did not ignore the
recommendations contained in the 1981 report of the NIH. As
we have seen, see § II.B.1 above, the FAA decided not to allow
pilots to continue flying past the age of 60 because it did not
know then, as it does not know now, of any way to identify a
group of pilots over the age of 60 who are less likely than other
equally venerable aviators to experience some loss of their
faculties.
The Pilots also fault the FAA for failing to acknowledge
that the NIH has withdrawn its support for the Ruie. The Pilots
here refer to the declaration of a former director of the National
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Institute on Aging, Dr. T. Franklin Williams, that he had
testified in 1985 before the House Select Committee on Aging
"that it was the official position of the NIA that testing of pilots
after age 60 was feasible and desirable."
The FAA counters that it did not acknowledge that the
Institute had withdrawn its support for the Rule because the
record does not establish any such change of position. The only
Institute report in the record is the one prepared in 1981.
Neither the NIH nor the NIA has conducted another similar
study since that time. Only Dr. Williams’ declaration, submitted
in litigation to which the FAA was not a party and reproduced
in the present rulemaking record, is offered in support of the
proposition that the NIA "formally abandoned"
its earlier position. Moreover, that declaration is in some
tension with Dr. Williams' statement before the House
Committee on Aging that he did not intend “to speak for or
against the retirement age rule," and with his somewhat hesitant
assertion that "we can probably reliably test cardiac functioning
and with reasonable reliability identify risk for coronary events
in older as well as younger persons."
We conclude that the FAA was under no obligation to
acknowledge Dr. Williams’ post hoc characterization of
testimony that was never submitted to the agency. In any event,
Dr. Williams did not state in his testimony that the NIH had
formally abandoned the earlier study, nor did he give any
explanation as to why the NIH would do so. The declaration of
Dr. Williams contained no new evidence bearing upon the
validity of the Age 60 Rule.
The Pilots also criticize the FAA for rejecting the
proposed alternative of screening older pilots through
performance checks without acknowledging that the NIH
advocates that approach. As discussed above, see § II.B.1, the
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FAA afforded adequate consideration to the merits of this
alternative and concluded that medical science has not yet
advanced to the point of being able to predict who will
experience age-related deterioration. We see no reason why the
FAA should be faulted for failing to name the supporters of the
proposal as long as the agency adequately considered the merits
of the idea. See Brae Corp. v. United States, 740 F.2d 1023,
1067 (D.C. Cir. 1984) ("Although the Commission has an
obligation to identify and ponder all relevant issues, it need not
mention by name every commentator whose grievance it
examines").
The Pilots also question the FAA's use of the Hilton
Study. That study concluded that the available data reveal no
increase in the accident rate of pilots nearing age 60, but
cautioned that there are no data available with respect to pilots
over the age of 60. Acknowledging that the question of when
a pilot should be required to retire must be answered "very
conservatively because of the possibility of catastrophic results,"
the study concluded that "one could cautiously increase the
retirement age to age 63." The Pilots claim that the FAA did
not adequately explain its failure to adopt this recommendation.
The FAA maintains that it regarded the Hilton Study as
an inadequate basis upon which to change its policy because the
study considered only accident data; a change of policy would
have to take account of "data on vision, reaction time,
judgment, circadian rhythm and many other neurobehavioral and
physiological measures." The FAA also questioned whether it
was appropriate to draw an inference about pilots who fly
commercial passenger aircraft from statistics pertaining to pilots
who fly cargo transports, and therefore have a different flying
pattern that may subject them to lesser levels of fatigue and
stress; Hilton drew the inference because it lacked more
a-24
relevant data pertaining to commercial passenger pilots over the
age of 60 (a null set).
The FAA may seem to have created something of a
Catch-22 by announcing that it will not allow older pilots to fly
until it has experiential data demonstrating the continued ability
of such pilots to fly safely. On the other hand, it hardly seems
reasonable to require that the Administrator periodically put his
hand into the fire in order to ensure that he has precisely
assessed the danger that it poses. If the FAA was justified in
imposing the Rule in the first place then we cannot say that,
simply because it is the Rule itself that blocks the generation of
data necessary to reconsider the Rule, it was unreasonable for
the FAA to find that it lacks those data. In sum, we hold that
the FAA's decision not to convene a rulemaking to revise the
Age 60 Rule was not arbitrary and capricious in violation of the
APA.
III. Conclusion
We hold that the ADEA does not limit the authority of
the FAA to regulate air carriers in the interest of safety.
Because we also conclude that the FAA was not arbitrary and
capricious, in violation of the APA, in deciding not to conduct
a rulemaking for the purpose of amending the Age 60 Rule, the
petitions for review are
Denied.
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WALD, Circuit Judge, concurring in part and dissenting
in part: The FAA has determined that the progressive anatomic,
physiological, and cognitive decline generally associated with
aging means that all pilots over the age of 60 represent too
great a threat to aviation safety to be allowed to fly in part 121
operations, which constitute by far the bulk of commercial
common carrier operations.’ The FAA based this determination
not on evidence demonstrating that pilots over 60 perform less
well than pilots under 60, but rather on the claim that there is no
accurate means to identify which pilots are particularly at risk
of suffering a sudden incapacitation or more subtle deterioration
in their abilities and the age of 60 was within the age range
where the incidence of diseases associated with aging sharply
increases. This argument is essentially the same as that which
the FAA offered when it first adopted the Age 60 Rule in 1959.
The agency continued to adhere to the position that the Age 60
Rule is necessary to ensure the highest level of aviation safety
despite the medical and technological developments over the
ensuing nearly four decades, despite a growing trend among
foreign aviation authorities to allow pilots over 60 to fly, and
despite a recent report commissioned by the FAA which
concluded there was no evidence of an increase in accidents
associated with older pilots at least up to age 63.
The majority concludes that this decision by the FAA
does not violate the Age Discrimination in Employment Act
("ADEA") and satisfies the Administrative Procedure Act's
'Up until 1995, part 121 governed common carrier operations
involving aircraft with more than 30 seats or more than 7,500 payload
capacity. In 1995, the FAA extended part 121 to cover airlines in
scheduled passenger carrying operations with 10 to 30 seats and
turbojets regardless of seating capacity. See Commuter Operations and
General Certification and Operation Requirements, 60 Fed. Reg. 65,832
(1995).
a-26
("APA") prohibition on arbitrary and capricious agency action.
I agree that the ADEA does not directly govern the FAA in its
role as a regulator, and thus the FAA need not prove that the
Age 60 Rule is a bona-fide occupational qualification for pilots.
But I believe that the FAA's justification for the rule simply does
not pass muster under the APA.” It may be the case that our
current medical knowledge and testing protocols are unable to
identify those older pilots who are at risk of sudden
incapacitation or subtle deterioration in functioning, so that an
arbitrary across-the-board age limit remains the only reliable
means of achieving the highest possible level of aviation safety.
However, the FAA has not yet provided an adequate
justification on this go-round for its conclusion that this
situation still exists, nor for its determination that aviation safety
requires all common carrier pilots, even those carrying cargo
only, to be subject to the age limit but not corporate or air-taxi
pilots. The FAA's decision also suffers from a reliance on
flawed and inapplicable studies of accident rates. Perhaps
hardest to swallow is the FAA's continued refusal to try to
obtain medical or performance data on older pilots at the same
time as it claims that such evidence is required before any
change in the rule can be countenanced. The agency's
complacent acceptance of this Catch-22 situation, particularly
given that the result is the continuation of a
government-imposed regime of age discrimination, seems to me
the epitome of arbitrary action.
Although I disagree with the majority's analysis of the FAA's
decision under the APA, I concur with the assessment that our usual
standard of APA arbitrary and capricious review applies here, even
though refusals to initiate rulemaking ordinarily are accorded particular
deference by a reviewing court, because the FAA based its refusal to
initiate a rulemaking to rescind the Age 60 Rule not on pragmatic
resource concerns but on the merits of the rule. See Majority opinion
(“Maj. op.") at 8.
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I, THE FAA'S FAILURE TO OFFER AN
ADEQUATE EXPLANATION OF THE NEED
FOR THE AGE 60 RULE
The core of the APA's prohibition on arbitrary and
capricious agency action is the requirement that an agency must
provide a reasoned explanation for what it does. While "[t]he
scope of review under the ‘arbitrary and capricious’ standard is
narrow and a court is not to substitute its judgment for that of
the agency," neither may a court sanction agency action when
the agency merely offers conclusory and unsupported
postulations in defense of its decisions or when it ignores
contradictory evidence in the record and fails to justify seeming
inconsistencies in its approach. Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983);
accord Dickson v. Secretary of Defense, 68 F.3d 1396, 1404-05
(D.C. Cir. 1995). The FAA's explanation of its decision to
retain the Age 60 Rule suffers from all of these defects.
The FAA currently grants medical exemptions to pilots
under 60 who are at risk of sudden incapacitation or subtle
deterioration in functioning because of known medical
conditions, but refuses to grant exemptions to pilots over the
age of 60 who are at risk of these same effects because of aging.
In its decision, the FAA argued that this differential treatment
of younger pilots and older pilots is merely a reflection of the
state of medical technology; according to the FAA, there are
tests by which the status of a known cardiovascular or
neurological condition can be reliably monitored, but there are
no tests by which the presence of such a condition can be
reliably determined. The majority accepts this claim as an
established fact, but the FAA cites no evidence in its support
and it certainly is not intuitively clear why the difference
between being at risk of sudden incapacitation or subtle
deterioration because of known medical conditions and being at
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risk of the same effects because of aging should produce
radically different diagnostic capacities. Cf Baker v. FAA, 917
F.2d 318, 321 (7th Cir. 1990); see also id. at 325 (Will, J.,
dissenting).> If the difficulty in the latter instance is the lack of
certainty regarding the pilot's health, why not simply presume
that the older pilot does in fact suffer from conditions that could
In Baker, the Seventh Circuit commented that it was not clear
"[e]xactly how this distinction [between younger pilots with known
conditions and older pilots at risk of the conditions] applies as a
practical matter,” but upheld the FAA because petitioners were
seeking exemptions from the Age 60 Rule and thus bore the
“burden [of] present[ing] persuasive evidence that granting exemp-
tions would not impair safety." 917 F.2d at 322. Here, however,
petitioners are challenging the rule itself under the APA, and the
APA requires the FAA to provide a sufficient explanation demon-
strating that its actions are reasonable. Cf id. at 322 n.6.
Contrary to the majority's thesis, Maj. op. at 10-12, there is
nothing in the record to support the idea that it is more difficult to
monitor known medical conditions in an older pilot than in a younger
pilot; nor is there anything—beyond the FAA's bare assertion that
"there are no generally applicable medical tests that can, at this time,
adequately determine which individual pilots are subject to" medical
conditions associated with aging, Joint Appendix ("J.A.") at 76—to
support the notion that it is harder to diagnose such conditions in the
first place in an older than in a younger pilot. The only possible
difference is that disabling conditions—whether detected or not—may
be more likely to occur in older than in younger pilots. But see infra
note 4 (FAA's evidence is ambiguous on question of whether age 60 is
the appropriate cut-off to guard against age-related decline). Yet
without evidence that such conditions are more easily detected in
younger pilots, this potential difference does not suffice to justify the
FAA's Age 60 Rule. Indeed, common sense suggests that examining
physicians would be more likely to suspect, check for, and thus discover
disabling conditions in the older pilots. Even if that were not the case,
however, the possibility that older pilots are more subject to disabling
medical conditions than younger pilots could be readily addressed by
more frequent and thorough medical testing.
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cause these effects and then determine whether the pilot is safe
to fly by means of the same tests that are used to monitor pilots
with known conditions?
Nor can the FAA's differential treatment of older and
younger pilots be explained on the grounds that the age-related
conditions that pose a concern in regard to older pilots are
different from those found in younger pilots. The record makes
clear that the FAA allows younger pilots to fly who have been
diagnosed with cardiovascular disease, even though it also lists
cardiovascular disease as one of the potential causes of sudden
incapacitation and subtle deterioration in older pilots. Age 60
Rule, 60 Fed. Reg. at 65,983-84. In any event, it is the
potential effects of the medical conditions associated with aging,
and not the conditions per se, that pose a risk to aviation safety,
and the FAA allows younger pilots to fly with conditions that
could produce the same effects. For example, while the FAA
puts great emphasis on the subtle decline in cognitive
functioning that accompanies aging, the FAA allows younger
pilots to fly with various conditions, such as neurological and
psychological disorders or alcoholism, that potentially could
undermine a pilot's cognitive abilities. J.A. 206, 284, 611-12,
678. The FAA nowhere explains why the same tests that it
employs to assess whether younger pilots with these conditions
possess the level of cognitive functioning required to fly safely
cannot be used to make the same determination regarding older
pilots.‘
‘In addition, if the possibility of an age-related cognitive decline is to
be the linchpin of the FAA's defense of the Age 60 Rule, then the
agency should provide a more in-depth discussion than it currently does
of why 60 is an appropriate age cut-off to guard against this
phenomenon. In its decision the FAA identifies the phenomenon of
age-related cognitive decline, but provides no indication of when such
decline impacts on an individual's ability to function. The decision also
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The FAA's failure to explain adequately its different
treatment of younger pilots and older pilots when both are at
risk of sudden incapacitation or subtle deterioration in
functioning is not simply a minor deficiency in its analysis. The
heart of the FAA's defense of the Age 60 Rule is its claim that
medical knowledge does not provide a means by which those
pilots at risk of these effects can be accurately identified. If the
tests that the FAA currently uses to monitor younger pilots with
known conditions that might cause such effects could be used
to monitor older pilots at risk of these conditions, then there
would be no need for the rule.
A similar lack of reasoned analysis characterizes the
FAA's explanation of the scope of the Age 60 Rule. The rule
currently applies to all part 121 pilots, including part 121 pilots
that work solely in cargo operations. It also applies only to part
121 pilots; other pilots—such as corporate pilots, test pilots,
inspectors, and air-taxi pilots—are not covered. The FAA,
defending its application of the Age 60 Rule to all and only part
121 operations, noted simply that Congress required the FAA
in promulgating safety regulations to consider the duty of air
carriers, which transport passengers or property by aircraft as
a common carrier, to perform their services with the highest
comments that "[o}]ne in 10 persons over age 65 and nearly half of those
over 85 have Alzheimer's disease alone, and increasingly it is found in
people in their 40's and 50's." J.A. at 72. Without any indication of
whether the incidence of Alzheimer's increases with age before 65, this
statement does not support an across-the-board age cutoff of 60. See
also Institute of Medicine, Airline Pilot Age, Health and Performance:
Scientific and Medical Considerations, J.A. at 215 (noting that the
prevalence of dementia before 65 has been estimated at 1 percent, while
the prevalence after 65 has been estimated at 5 percent); J.A. at 638-41
(affidavit of former Director of National Institute on Aging arguing that
evidence on neurological and neuropsychological health does not
support an age cut-off of 60).
a-31
possible degree of safety in the public interest and to take
account of the differences between air carriers and other forms
of air commerce. See Age 60 Rule, 60 Fed. Reg. at 65,985.
According to the majority, this statement suffices to explain the
FAA's refusal to apply the Age 60 Rule to non-air carrier pilots,
such as corporate pilots, because "Congress clearly left the FAA
free to regulate corporate aircraft operations at less than the
highest possible degree of safety." Maj. op. at 16. But even if
Congress did not require the highest possible degree of safety
for non-air carrier operations, it did authorize the FAA to
prescribe regulations that the FAA “finds necessary for safety in
air commerce operations." 49 U.S.C. § 44701(a)(5S) (1994).
Thus, what is needed before we can conclude that the FAA's
exclusion of non-air carrier operations from the Age 60 Rule is
reasonable is some explanation as to why the rule is not
required to achieve the level of safety that the FAA believes is
appropriate for non-air carrier operations. Such an explanation
is not to be found anywhere in the FAA's decision.
Further, the FAA's citation of the duty of air carriers to
operate with the highest possible degree of safety does not
explain why the FAA applies the Age 60 Rule to some but not
all air carriers. At the same time as it issued its decision
refusing to rescind the Age 60 Rule, the FAA also promulgated
a final regulation extending the rule to commuter operations as
part of a shift of most commuter airlines to part 121. However,
as applied to commuter operations the Age 60 Rule will not be
fully effective for four years. The FAA justified this four year
delay in terms of the burden the rule would impose on
commuter airlines and commuter pilots; it emphasized that
commuter airlines have invested money in training pilots in the
expectation they could fly past 60 and will be subject to
numerous other new regulations in the immediate future as a
result of the shift to part 121, while commuter pilots have not
planned on leaving their positions at 60. These are all sensible
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reasons to delay enforcement of the Age 60 Rule, but they are
difficult to reconcile with the FAA's citation of the duty of air
carriers to perform with the highest degree of safety in
defending the application of the rule to all part 121 operations.
Why, if this duty does not allow the FAA room to consider the
differences between cargo and passenger operations or the
burden on pilots under part 121, does it allow the FAA to take
economic and fairness concerns into account in regard to
commuter operations?
The FAA also provides no explanation for why duty to
perform with the highest degree of safety possible is consistent
with the continued exclusion from the Age 60 Rule of air-taxis,
which are air carriers but not regulated under part 121. The
FAA's only reference to aif-taxis comes not in its age 60
decision but in its proposal to shift commuter operations to part
121, and consists merely of the statement that air-taxis “are
unlike commuter or major air carrier operations," along with the
comment that the FAA was only asked to put commuter
operations under part 121. See Commuter Operations and
General Certification and Operations Requirements, 60 Fed.
Reg. 16,230, 16,235 (1995). The majority maintains that the
exclusion of air-taxi operations from the Age 60 Rule is
reasonable simply because the FAA was not asked to extend the
rule to such operations. I find this argument wholly
unpersuasive and wide of the mark. The question is not
whether the rule should be extended to air-taxi operations, but
rather whether the FAA's application of the rule to all air carner
operations coming under part 121 was reasonable. Given that
its defense of the application of the Age 60 Rule to all part 121
operations was simply a citation of the air carriers heavy duty
of safety, the FAA has an obligation to provide some
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explanation as to why this duty does not require non-part 121
air carrier operations to be subject to the Age 60 Rule as well.°
A third deficiency in the FAA's decision is its reliance on
flawed and inapplicable studies of accident rates. As the
majority details, one instigating factor behind petitioners’
request for a rulemaking on the Age 60 Rule was the 1993
Hilton report on the relationship between pilot age and accident
rates. This report, commissioned by the FAA, determined that
there was no evidence of increased accident rates for air carrier
pilots as they neared 60, and if anything a slight downward
trend. Based on its analysis of pilots over the age of 60 flying
in operations not covered by the Age 60 Rule, the report
concluded that the age limit for part 121 pilots could be
extended from 60 to 63. The FAA concluded, however, that
the Hilton report did not justify rescission of the Age 60 Rule or
an increase in the age cutoff.
The FAA based its rejection of the Hilton report in large
part on the fact that earlier studies had found an increase in
accident rates. But the record indicates that many of these
studies are seriously flawed. For example, the FAA described
in great detail the conclusions of a 1983 report that found a
substantially higher accident rate for pilots over 60 than for
*The majority also remarks that extension of the Age 60 Rule to
air-taxi operations would not benefit petitioners, since it would only
further restrict the opportunities available to pilots over the age of 60.
But again, the petitioners’ challenge is to the FAA's claim that the duty
of air carriers to perform with the highest degree of safety is a sufficient
basis to justify application of the rule to all part 121 operations, not to
the FAA's exclusion of air-taxi and other non-part 121 air carrier
operations from the rule. If the FAA were to determine that the
differences between different types of part 121 operations allowed pilots
over the age of 60 to fly in some instances, more opportunities for older
pilots would be created.
a-34
younger pilots. While the FAA noted that several
commentators disagreed with the methodology used in this
report, it never explained why, despite these methodological
problems, the 1983 report retained any evidentiary value. As
the Seventh Circuit commented, these problems—such as
- including millions of nearly accident free air carrier miles in
determining the accident rate for pilots under 60 even though as
a result of the Age 60 Rule no air carrier miles are available in
determining the accident rate for pilots over 60, and calculating
a single accident rate for all pilots in a ten year cohort—mean
that the 1981 report is, at best, of "very limited usefulness."
Baker, 917 F.2d at 320-21 & n.1; accord J.A. at 100-01, 659;
see also J.A. at 101-02, 500-01, 518-20 (criticisms of the Office
of Technology Assessment report and the second Golasewski
report). The FAA also relies on a National Research Council
report that found car accident rates increased for older drivers,
arguing that the lack of part 121 pilots flying past 60
necessitated the use of surrogate data to assess the performance
of older pilots and that car accident data was a relevant
comparison because both flying and driving a car require good
reflexes and judgment. But, again as the Seventh Circuit has
noted, "[t]he connection between automobile drivers and pilots
itself seems tenuous given the pilots’ training, demonstrated
proficiency, medical fitness, etc." Baker, 917 F.2d at 321; see
also J.A. at 504. The FAA does not acknowledge these
differences or explain why, even so, car accident data is
relevant.
Il. THE NEED FOR EVIDENCE ON
OLDER PILOT SAFETY AND THE FAA'S
REFUSAL TO OBTAIN IT
These deficiencies in the FAA's justifications for the Age
60 Rule lead me to conclude that the FAA's decision to retain
the rule fails the reasoned decisionmaking requirements of the
a-35
APA. Even without them, I believe that the FAA's refusal to try
and obtain the evidence it claims is necessary to rescind the rule
would require us to hold that its decision was arbitrary.
In its decision, the FAA emphasizes that what is
required before a conclusive assessment of the contribution of
the Age 60 Rule to protect aviation safety can be reached is
medical and performance data on pilots over 60 serving in air
carrier operations. The importance of such data was also
underscored by the National Institutes of Health ("NIH") in its
1981 report on the Age 60 Rule, and the need for such directly
relevant data is hard to deny. But the FAA simultaneously
refuses to allow any over-60 pilots whose performance and
health could be studied to generate this data to fly in air carrier
operations, even pilots who have been subjected to rigorous
medical and performance screening. The FAA defended its
refusal to allow such a study of older pilots on the basis of the
same argument that it uses to justify retention of the Age 60
Rule in general—namely that there is no reliable means for
selecting pilots to participate in the study who were not at risk
of sudden incapacitation or subtle deterioration in their abilities,
and in the absence of such selection tests the study would
represent too great a threat to aviation safety.
The flaws in the FAA's reasoning discussed above make
it difficult to credit the FAA's conclusion that such a study
would pose an unacceptable risk to aviation safety. If
accommodating the reasonable expectation of commuter airlines
and commuter pilots justifies delaying application of the Age 60
Rule to commuter operations, then surely the pressing need for
data on older pilot health and performance justifies allowing a
carefully screened group of pilots to fly past 60 as part of a
systematic study of older pilots. And the FAA's contention that
there is no means by which to safely select participants for such
a study is undercut by the agency's claim that it can safely
a-36
monitor younger pilots with known conditions that could result
in sudden incapacitation or subtle deterioration in functioning.
In addition, many experts who study the Age 60 Rule have
argued that a carefully screened group of over 60 pilots could
safely be allowed to fly as part of a systematic study. For
example, the NIH report, which the FAA itself describes as "the
most comprehensive study yet performed of the issues involved
in age-related retirement of airline pilots," Age 60 Rule, 60 Fed.
Reg. at 65,982, recommended that the FAA undertake such a
program and provided a general description of what would be
required. Thus, clearly the authors of the NIH report, who
were national experts on the medical conditions associated with
aging, believed that such a study could be safely undertaken.
See J.A. at 179-81; see also id. at 471-73 (testimony of Dr.
James Hickman of the Mayo Clinic to the same effect); see
generally Andreas E. Struck et al., Multidimensional Risk
Assessment versus Age as Criterion for Retirement of Airline
Pilots, 40 J. AM. GERIATRIC Soc'y. 526, 530 (1992) (arguing
that under an improved medical certification procedure
conditions that might cause sudden incapacitation or subtle
deterioration in functioning “would most likely be identified"
and advocating an increase in the mandatory retirement age for
pilots to 70), reprinted in J.A. at 622; Charles E. Drebing et al.,
Early Detection of Cognitive Decline in Higher Cognitively
Functioning Older Adults, 8 NEUROPSYCHOLOGY No. 1, 31, 35
(1994) (analyzing data on a battery of tests designed to screen
for cognitive decline and concluding that the battery "exhibits
a relatively high degree of accuracy").
In any event, recent developments make it possible for
the FAA to obtain medical and performance data from pilots
flying in part 121 operations. Europe's Joint Aviation Authority
as well as several Asian countries now permit pilots to fly past
age 60, and by treaty these pilots must be allowed to fly in U.S.
airspace. As the majority notes, this fact creates a natural
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source of exactly the sort of information on older pilots that is
needed. Another seemingly valuable source of data on pilot
functioning are commuter pilots over 60 who will be allowed to
fly for four years after commuter operations are shifted under
part 121. A third potential source is non-part 121 operators
who have agreed to allow pilots to fly past 60 pursuant to
consent decrees with the Equal Employment Opportunity
Commission. At no point in its decision, however, does the
FAA suggest that it will make any efforts to obtain data on
older pilot functioning from any of these sources.
Ordinarily, an agency's failure to try and obtain data
needed to initiate a rulemaking would not be arbitrary; agencies
must be allowed to set their own agendas and allocate their
resources as they see fit. Cf Heckler v. Chaney, 470 U.S. 821,
831-32 (1985). But circumstances surrounding the FAA's
retention of the Age 60 Rule are not ordinary. For nearly forty
years, the FAA has argued that the Age 60 Rule is necessary to
ensure the highest level of aviation safety but it has yet to
supply the direct evidence of older pilot health and performance
that is needed to support this proposition. See, e.g., Aman v.
FAA, 856 F.2d 946, 948 (7th Cir. 1988) (commenting that "the
agency's progress in developing an understanding of the
relationship between aging and flight performance has been
disappointing"). The Age 60 Rule also exacts substantial costs;
pilots are forced to end their careers even though they are
healthy and perfectly able to fly and the flying public is deprived
of the valuable expertise that these pilots offer. These costs do
not on their own make the Age 60 Rule unreasonable, since
they may be unavoidable if aviation safety is to be assured only
in this way, but their presence makes it incumbent on the FAA
to try to obtain the evidence required to fully and accurately
assess the need for the Age 60 Rule.
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Most importantly, the Age 60 Rule stands as an instance
of government-mandated age discrimination for a particular
group of employees. The ADEA manifests our country's
rejection of measures that discriminate against individuals solely
because of their age; its stated purpose was to "promote
employment of older persons based on their ability rather than
age ... [and] to prohibit arbitrary age discrimination in
employment." 29 U.S.C. § 621(b). As I indicated earlier, I do
not believe that the ADEA directly governs the FAA in its role
as a regulator of aviation such as to make it necessary for the
FAA to demonstrate that the Age 60 Rule is a bona-fide
occupational qualification and therefore acceptable under the
Act. But this does not mean that the FAA can ignore the
ADEA altogether. The congressional condemnation of age
discrimination embodied in the ADEA imposes a duty on the
FAA to try to obtain data that might allow it to do away with its
current reliance on an arbitrary across-the-board age cutoff as
a method of ensuring aviation safety.®
Ill. CONCLUSION
Judges must be ever-vigilant to ensure that when
enforcing the APA's requirement of reasoned decisionmaking
they defer to agency expertise. The importance of such
deference is most acute in regard to safety determinations, given
the potential catastrophic effects of inadequate safety
*A rider to the 1996 appropriations bill prohibited the National
Transportation Safety Board from expending any funds to study the
performance of pilots over 60. See Department of Transportation and
Related Agencies Appropriations Act of 1997, Pub. L. No. 104-205, §
345, 110 Stat, 2951, 2976 (1996). But this rider was not in effect when
the FAA rendered its decision, and thus is irrelevant to a determination
of whether the FAA's failure to undertake measures to obtain data on
older pilot functioning was reasonable.
a-39
regulations, and it is difficult to imagine an agency decision
which judges would be more disposed to accept than one that
implicates aviation safety. However, deference to agency
expertise cannot be allowed to become toleration of arbitrary
agency action—or in this case inaction—even in an area as
critical as aviation safety. Because I believe the FAA has failed
to provide a reasoned explanation for its decision to retain the
Age 60 Rule, I would remand to the agency for further
proceedings.
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APPENDIX B:
FEDERAL REGISTER
Vol. 60, No. 244
Proposed Rules
DEPARTMENT OF TRANSPORTATION (DOT)
Federal Aviation Administration (FAA)
14 CFR Part 121
[Docket No. 27264]
RIN 2120-AF96
The Age 60 Rule
60 FR 65977
DATE: Wednesday, December 20, 1995
ACTION: Disposition of comments and notice of agency
decisions.
SUMMARY: 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.
a-41
After review of all comments, studies, and other
pertinent information, the FAA has determined not to initiate
rulemaking to change the Age 60 Rule at this time. The FAA
also has decided not to grant any of the pending petitions for
exemption or rulemaking.
ADDRESSES: The complete docket containing recent
comments on the Age 60 Rule, including copies of studies
related to the Age 60 issue, may be examined at the Federal
Aviation Administration, Office of the Chief Counsel
(AGC-200), Rules Docket, Room 915-G, 800 Independence
Avenue SW., Washington, DC 20591, weekdays (except
Federal holidays) between 8:30 a.m. and 5:00 p.m.
Availability of Disposition
Any person may obtain a copy of this Disposition by
submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center,
APA-220, 800 Independence Avenue, SW., Washington, DC
20591, or by calling (202) 267-3484. Requests should be
identified by the docket number of this Disposition.
FOR FURTHER INFORMATION CONTACT: Daniel V.
Meier, Jr., AFS-240, Regulations Branch, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington,
DC 20591, Telephone (202) 267-3749 or (202) 267-8086.
SUPPLEMENTARY INFORMATION:
IL. Background
Section 121.383(c) of the Federal Aviation Regulations
(FAR) (14 CFR § 121.383(c)) prohibits any air carrier from
using the services
a-42
of any person as a pilot, and prohibits any person from serving
as a pilot, on an airplane engaged in operations under part 121
if that person has reached his or her 60th birthday. The FAA
adopted the "Age 60 Rule", as it has come to be known, in 1959
(24 FR 9767, December 5, 1959).
In late 1990, the FAA initiated a study aimed at
consolidating available accident data and correlating it with the
amount of flying by pilots as a function of their age. This
resulted in a document entitled “Age 60 Project, Consolidated
Database Experiments, Final Report", dated March 1993 (the
“Hilton Study"). The FAA held a public meeting and requested
comments regarding various issues related to the Age 60 Rule,
including the Hilton Study (58 FR 21336, April 20, 1993). The
FAA has reviewed the written comments received in the docket
(Docket No. 27264) and to the comments presented at the
public meeting. The FAA is also responding to a number of
pending petitions from pilots seeking an exemption from the
Age 60 Rule. Finally, the FAA is responding to a petition for
rulemaking submitted by the Professional Pilots Federation
(PPF).
This document describes the history and basis for the
rule, the major events during the history of the rule, the FAA's
response to the issues raised above, and the FAA's rationale for
maintaining the Age 60 Rule.
I(a). Basis for the 1959 Rule
The FAA promulgated the Age 60 Rule in 1959 because
of concerns that a hazard to safety was presented by utilization
of aging pilots in air carrier operations. As noted in that
rulemaking, the agency found “that there is a progressive
deterioration of certain important physiological and
psychological functions with age, that significant medical
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defects attributable to this degenerative process occur at an
increasing rate as age increases, and that sudden incapacity due
to such medical defects becomes more frequent in any group
reaching age 60." 24 FR 9767. It also found that "[s]uch
incapacity, due primarily to heart attacks and strokes, cannot be
predicted accurately as to any specific individual on the basis of
presently available scientific tests and criteria." 24 FR 9767. The
FAA noted "[o]ther factors, even less susceptible to precise
measurement as to their effect but which must be considered in
connection with safety in flight, result simply from aging alone
and are, with some variations, applicable to all individuals.
These relate to loss of ability to perform highly skilled tasks
rapidly, to resist fatigue, to maintain physical stamina, to
perform effectively in a complex and stressful environment, to
apply experience, judgment and reasoning rapidly in new,
changing and emergency situations, and to learn new
techniques, skills and procedures." 24 FR 9767. While the FAA
recognized that such losses generally start well before age 60,
the agency determined that beyond age 59 the risks associated
with these losses become unacceptable for pilots in part 121
operations.
The agency noted that, due to seniority, older pilots tend
to “fly the largest, highest-performance aircraft, carrying the
greatest number of passengers over the longest non-stop
distances," in the highest density traffic. 24 FR 9767. The FAA
concluded that, because of she high risks involved, persons
should be precluded from piloting aircraft in part 121 operations
after reaching age 60.
While the Age 60 Rule prohibits pilots from operating
aircraft under part 121 after reaching their 60th birthdays, it
does not impose mandatory retirement for affected pilots. A
pilot may work as a flight engineer or flight instructor in
operations conducted under part 121 or may work as a pilot in
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operations outside of part 121. The pilot also may function as
an instructor or evaluator in simulators, an area that has
expanded over the years.
I(b). Subsequent Rulemaking Actions
In the early 1980's, the FAA explored possible changes
to the Age 60 Rule, stemming from direction from Congress in
1979 that the National Institutes of Health (NIH) study the
desirability of mandatory age retirement for certain pilots. (P.L.
96-171). The NIH assigned the National Institute on Aging
(NIA) the primary responsibility for implementing the
legislation. In the report from this study, “Report of the
National Institute on Aging Panel on the Experienced Pilot
Study" (August 1981) (NIH report), NIA recommended that
the age 60 limit be retained. Among other things, the panel
concluded that, while no medical significance could be attached
to age 60 as a mandatory retirement age, age-related health
changes endanger aviation safety and no medical or
performance appraisal system could be identified that would
single out pilots who would pose a hazard to safety. The
conclusions reached by the NIA panel and the supporting
statements contained in the report pointed to an inability to
distinguish those persons who, as a consequence of aging,
present a threat to air safety from those who do not. The
following recommendations were made:
1. The age 60 limit should be retained for pilots in
command and first officers.
2. The FAA or some other appropriate Federal
agency should be requested to engage in a systematic program
to collect the medical and performance data necessary to
consider relaxing the age 60 rule.
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3. In view of the growing importance of commuter
air carriers, the age 60 limit should be extended to cover all
pilots engaged in carrying passengers for hire, specifically
including operations under part 135 to provide a level of safety
equivalent to that provided in part 121 operations.
As part of its study, NIA looked at information on
functional decline with age and the increased frequency of a
number of medical disorders (including cardiovascular disease,
neurological and mental disorders, and changes in perceptual,
psychomotor and intellectual functions) associated with aging.
In addition, NIA looked at death and disability rates in air
carrier pilots and flight engineers, death rates in the general
population, and accident rates for pilots.
In response to the NIH recommendations, in 1982 the
FAA published an Advance Notice of Proposed Rulemaking
(ANPRM) on the Age 60 Rule (47 FR 29782, July 8, 1982).
The FAA was considering identifying a select group of pilots
who would continue flying in part 121 operations in order to
allow the FAA to collect data on selected pilots, age 60 and
over, flying in actual operations under part 121. The FAA was
also considering establishing age limits for flight engineers
serving on airplanes operated under part 121. The FAA
withdrew the ANPRM in 1984 (49 FR 14692, April 12, 1984).
The FAA found that valid tests did not exist for selecting a
group of pilots age 60 and over who could act as the test group
for collecting data. The FAA was concerned that without valid
selection tests these pilots would create an unacceptable safety
risk to part 121 operations. The FAA also stated that it was not
appropriate to establish an age limit for flight engineers at that
time.
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I(c). | 1993 Request for Comments on Age 60 Rule and Hilton
Study
In late 1990 the FAA contracted for the Hilton Study,
a 2-year study to consolidate accident data and correlate it with
flying experience and age of pilots. This study analyzed accident
data between 1976 and 1988. Although the focus of the study
was on part 121 pilots, the study analyzed the accident rates for
pilots in part 91, 121, and 135 operations holding Class I, Class
II, and Class III medical certificates. The authors of the study
found "no hint of an increase in accident rate for pilots of
scheduled air carriers as they neared their 60th birthday" but
noted that there were no data available on scheduled air carrier
pilots beyond age 60. Observing a “hint, and a hint only," of an
increase in accident rates for Class III pilots older than 63 years
of age, they concluded that "one could cautiously increase the
retirement age to age 63."
In addition, on April 20, 1993, the FAA published a
notice of public meeting and request for comments regarding
various aspects of the Hilton Study. (58 FR 21336; April 20,
1993.) The public meeting was held on September 29 and 30,
1993, and the comment period closed on October 15, 1993. In
response to the FAA's notice of public meeting and request for
comments, 46 members of the public made presentations at the
public meeting, and the FAA received approximately 1,200
written comments on the Hilton Study and the Age 60 Rule in
general before the close of the comment period.
I(d). Commuter Rule
The FAA addressed the Age 60 Rule in a Notice of
Proposed Rulemaking (Notice 95-5, 60 FR 16230, March 29,
1995) that would require certain commuter operators that now
conduct operations under part 135 to conduct those operations
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under part 121 (the “Commuter Rule"). In that notice, the FAA
proposed to apply all part 121 rules, including the Age 60 Rule,
to those pilots currently employed in certain part 135 scheduled
operations who would be affected by the Commuter rule. In
response to Notice 95-5 the FAA received many comments
dealing with the question, not raised by Notice 95-5, of whether
there should be an age limitation for part 121 pilots and what
that age should be. To that extent those comments have been
considered in this Disposition.
I(e). Public Comment
1993 Meeting and Request for Comments
In addition to the comments at the 1993 public meeting
and received during the comment period, the FAA received
over 2,000 comments after the comment period closed. The
issues raised in the comments by both sets of commenters are
similar and will be discussed together. The majority of the
commenters at the public meeting and those submitting written
comments before the close of the comment period are in favor
of raising the age limit, while the majority of commenters
submitting written comments after the close of the comment
period are against raising the age limit. Commenters in favor of
raising the age limit offer several different alternatives, ranging
from age 62 to no age limit. Some commenters opposed to a
rule change state that the age limit should be decreased to age
55.
Commuter Rule
In addition to the above comments, over 2,000
comments on the age 60 issue (including about 1,000 postcards
from members of an airline pilot organization) were received in
the docket established for the Commuter Rule. The
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overwhelming majority of these comments support maintaining
the Age 60 Rule and do not express opinions that are different
from other comments received in response to the public meeting
and request for comments in Docket 27264.
The issues raised at the public meeting, the written
comments, and the Commuter Rule are discussed below.
I(f). | Professional Pilots Federation Petition for Rulemaking
To Repeal the Age 60 Rule
The PPF, an organization whose membership is
composed of pilots who oppose the Age 60 Rule, filed a
petition for rulemaking in July 1993 (Docket 27375; 58 FR
46585, September 2, 1993) that requests the removal of §
121.383(c). PPF believes that Federal law and policy,
operational and regulatory developments since promulgation of
the rule, and the results of the Hilton Study warrant the
removal.
In its petition, the PPF states that the Age 60 Rule has
no basis in fact; refusal to repeal the rule would constitute
arbitrary and capricious action by the FAA, contrary to the
provisions of the Administrative Procedure Act; refusal to
repeal the rule without evidence of a need to retain it in the
interest of public safety is inconsistent with Federal policy
against age discrimination; and repeal of the rule would have a
positive economic impact on the U.S. air carrier industry.
In addition, the PPF states that the FAA should exercise
leadership in the international community and repeal the Age 60
Rule; the Age 60 standard in ICAO Annex | is ready for
change; and the JAA has proposed increasing the maximum age
limit for air transport pilots to 65. (The FAA notes that JAA's
proposal is to allow pilots to operate in multi-pilot operations
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up to the age of 65, provided no more than one pilot in the
cockpit is over the age of 60.)
The major issues brought up in the PPF's petition for
rulemaking (such as age discrimination, the Hilton Study,
economic impacts of the Age 60 Rule, etc.) are discussed below
in connection with the disposition of comments in Docket No.
27264. Because the FAA has determined that there is
insufficient justification to change the Age 60 Rule at this time
and that the rule is consistent with Federal law, PPF's petition
for rulemaking will be denied in a separate document.
I(g). Petitions for Exemption From the Age 60 Rule
Over the years the FAA has received numerous petitions
for exemption from the Age 60 Rule. The FAA consistently has
denied these petitions. Some petitioners have sought review in
the United States Courts of Appeals, and the Courts have
upheld the denials. However, in 1992 when the Hilton Study
was underway, the FAA delayed action on the pending petitions
for exemption and those newly received. Most of the issues
raised by the petitions were so intertwined with the underlying
Age 60 Rule issues, the FAA chose to defer action pending
deliberation of the broader issues involving the Age 60 Rule
itself. There are currently over 100 petitions for exemption
pending. Summaries of the petitions were published in the
Federal Register, and comments were received for some of the
petitions. These comments expressed opinions and did not
provide the FAA with new information. The issues raised by
commenters are discussed in sections II, III, and V below.
Overall, the petitioners provide similar information and
arguments that they contend justify exemptions. Part of their
assertions involve their personal fitness (see section II(a)) and
the ability of the FAA to test them individually with simulators
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(see section IlI(a)). They state that they hold or are qualified to
hold first-class airman medical certificates (see section III(b)).
Some state that they have extensive skill and experience as
pilots (see section II(c)). They also note that the FAA gives
many exemptions to younger pilots for various medical
conditions (see section III(b)).
The petitioners also contend that the Age 60 Rule is
discriminatory (see section V(b)). In addition, the petitioners
state that the Age 60 Rule is an arbitrary age and that the age of
60 has not scientifically been shown to be an accurate predictor
of health or ability (see section II(a)). They state that studies
used by the FAA in the past to justify the rule are flawed,
including the NIH Study and the reports prepared by Richard
Golaszewski (Acumenics Research and _ Technology,
Incorporated, The Influence of Total Flight Time, Recent Flight
Time and Age on Pilot Accident Rates, Final Report (1983)
(First Golaszewski Report); General Aviation Safety Studies:
Preliminary Analysis of Pilot Proficiency (1991) and his
subsequent work, Additional Analysis of General Aviation Pilot
Proficiency (1993) (Second Golaszewski Report) (section
II(b)). They state that pilots at age 60 are in the safest age
group and that forcing them to retire results in individuals with
less experience serving as pilots, resulting in lower safety
(sections II(c) and V(f)). They state that sudden incapacitation
is not a cause of accidents in Part 121 operations (section I(a)).
They state that the rule was promulgated for economic reasons
alone (section V(a)). They state that the rule is contrary to the
Age Discrimination in Employment Act (section V(b)). They
point out that other countries have higher retirement ages for
their pilots (section V(c)). They state that deleting the rule
would save the air carriers money (section IV(a)).
Under 49 U.S.C. 44701(e) the FAA, in its discretion,
may grant exemptions from the requirements of a regulation if
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it finds that such an exemption is in the public interest. Section
11.25 (14 CFR § 11.25) provides procedures for petitioning for
an exemption. Section 11.25(b)(5) provides that such a petition
must contain any information, views, or arguments available to
the petitioner to support the action sought, the reasons why the
petition would be in the public interest and, * * * the reason
why the exemption would not adversely affect safety or the
action to be taken by the petitioner to provide a level of safety
equal to that provided by the rule from which the exemption is
sought.
The petitioners have the burden of showing that the exemption
is justified.
The FAA does not doubt that the petitioners, in general,
are well-qualified, experienced, and safe pilots. However, no
petitioner has suggested or shown how he or she is unique
compared to others who are subject to the rule.
To the extent that petitioners’ comments involve the
justification for the Age 60 Rule itself, these issues are
discussed in sections II, III, and V below.
As to individual petitioners’ fitness to serve as pilots past
the age of 60, which petitioners assert can be demonstrated by
individualized testing or evaluation, no petitioner has submitted
a protocol, nor is the FAA aware of a protocol, that would
permit the FAA to adequately assess an aging individual's
relative risks of incapacitation, either sudden or subtle. They
have not shown how their circumstances are different in a
significant way from others subject to the rule. For instance,
there is nothing unique in petitioners holding first-class airman
medical certificates; all pilots who exercise the privileges of an
Air Transport Pilot certificate are required to hold a first-class
airman medical certificate. Numerous pilots operating under
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part 121, who are approaching age 60, have long, distinguished
careers. Indeed, the FAA considered these issues in response to
the comments in Docket 27264, and they are further responded
to below.
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. The FAA will
in separate documents deny the pending petitions for exemption
from the Age 60 Rule.
In addition, the FAA intends to handle future petitions
for exemptions for the Age 60 Rule differently. The normal
procedures for handling petitions for exemption are set forth in
§§ 11.25 and 11.26. They include publishing a summary of the
petition, revewing any comments received, and issuing an
individualized grant or denial of the petition that recites the
basis for the petition and the FAA's analysis as to why it is
granted or denied. This process can take a substantial amount
of time. It appears not to be necessary, however, to carry out all
these steps for future petitions for exemption from the Age 60
Rule that aresubstantially similar to those discussed here. In the
future, the FAA will deny any petition for exemption from the
Age 60 Rule without first publishing it for comment unless it
contains a proposed technique, not discussed in this Disposition,
to assess an individual pilot's abilities and risks of subtle and
sudden incaacitation. Petitions that do not contain new
information cr a protocol that may allow the FAA to accurately
assess the individual will be summarily denied. A copy of this
disposition will be attached to the denial to explain the basis for
the FAA's deiial. Any petition that does contain such a proposal
will be processed and evaluated as provided in §§ 11.25 and
11.26.
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Il. Concerns Regarding Aging Pilots
After considering all comments and known studies, FAA
concludes that concerns regarding aging pilots and underlying
the original rule have not been shown to be invalid or misplaced.
II(a). Physical Degradation with Age
As noted above, the Age 60 Rule was promulgated in
1959 to address the progressive deterioration of physiological
and psychological functions with age and an increasing
occurrence of significant medical defects and sudden
incapacitation associated with this degenerative process. While
emphasizing heart attacks and strokes, the agency also noted
"other" factors, less susceptible to precise measurement,
resulting from aging alone. Major emphasis was placed on the
difficulties in attempting to predict incapacity.
Several commenters state that the death rate in general
and the cardiovascular death rate in particular for men in the
relevant age groups declined dramatically between 1960 and
1989. The commenters believe, therefore, that the age limit
could be raised. Other commenters, however, state that
insurance statistics show a dramatic rise in cardiovascular
disease in people over age 50.
In the 35 years since the rule was introduced, there has
been remarkable progress in medicine, particularly in the ability
to evaluate cardiovascular fitness and in the diagnosis and
treatment of cardiac and cerebrovascular illness. For example,
cardiovascular disease rises with age, steeply, beginning
between ages 55 and 65, and, though mortality has dropped
since 1960, cardiovascular disease remains the most frequent
cause of death in pilots and the general population. With this
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increased incidence of cardiovascular disease in the older
population, the risk for unexpected threatening events is raised.
Cardiac events (e.g., heart attacks, sudden death) during flight
have continued to occur in low but fairly consistent numbers
over the years and have caused general aviation accidents.
Other conditions are known to increase in incidence or
to become more complicated with aging. Many present greater
difficulties of detection and risk assessment than does
cardiovascular disease. Among these are cerebrovascular
disease; malignancies; endocrine dysfunction; neurological
disorders; psychiatric diagnoses including depression; and
decline in sensory and motor capabilities. There has been an
increasing awareness of the more subtle adverse conditions
affecting performance, those related to cognitive functioning.
The concepts of "age-related cognitive decline" or
“age-associated memory impairment" describe objective
impairment of cognitive function (e.g., attention; language;
some visuospatial skills; and, particularly, memory), as a result
of aging. These concepts are applied to describe a longitudinal
decline in performance that is age appropriate, i.e., a normal
outcome of aging (Petersen, RC; Normal Aging, Mild Cognitive
Impairment, and Early Alzheimer's Disease; The Neurologist;
1:000-000, 1995 [in press]). Since there now is general
agreement that a functional decline occurs with normal aging,
on-going research seeks tools for its identification and
quantification and to determine its significance for individuals.
A condition of "mild cognitive impairment" also is recognized
and appears to be the herald of degenerative disease or
dementia. Again, research looks for diagnostic tools and for
predictor variables of the ultimate outcome for the individual.
Dementia in the adult population is a major and growing
medical and social problem. It occurs at all ages, but its
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incidence increases with advancing age so that the largest group
of demented patients is in the older age groups (Differential
Diagnosis of Dementing Diseases; National Institutes of Health
Consensus Conference Statement; Volume 6, Number 11; July
6-8, 1987). One in 10 persons over age 65 and nearly half of
those over 85 have Alzheimer's disease alone, and increasingly
it is found in people in their 40's and 50's.
Many of the dementing diseases can be confirmed or
denied with certainty only at autopsy. The history includes a
decline from the individual's previously attained intellectual level
and usually involves defects in memory, other cognitive
capacities, and adaptive behavior. Usually, it is marked by
significant deterioration of memory and of one or more other
intellectual functions such as language, spatial or temporal
orientation, judgment, and abstract thought. Onset is usually but
not always insidious, and the patient may or may not be aware
of the dementia. Deterioration may vary from subtle changes
that are overlooked by coworkers, family, and friends, to totally
incapacitating.
Is there a level of cognitive dysfunction acceptable in a
part 121 pilot? On a particular basis, can pilots be screened for
mild cognitive deficits or for the "normal" age-related cognitive
decline? Can early dementia be identified before the affected
pilot becomes a risk? How do we know when the pilot becomes
a risk? How specifically are the deficits identified through
currently available neuropsychological testing related to
performance and to the real requirements of piloting? What is
an acceptable level of risk in aviation? When does the incidence
of cognitive deficit become unacceptable? Are current
proficiency evaluations adequate for determination of a pilot's
ability to perform adequately under every reasonably anticipated
circumstance regardless of age? At present, adequate answers
to these questions have not been provided.
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In its 1981 report, the Institute of Medicine (IOM) of
the National Academy of Science (on which the NIH report is
based) noted that in addition to the increased incidence of
cardiovascular disease and degradation in cognitive functions
associated with aging, other effects of aging become more
prevalent. For example, diabetes, thyroid disease, pulmonary
dysfunction, and gastrointestinal malignancy are more common
with advancing age.
There is other deterioration with age. For instance,
research points to a decline with age in the speed and/or quality
of many aspects of perceptual and motor functioning. In the
general population, the ability to see fine details declines slightly
in adulthood until about 60, and more markedly thereafter.
With age, there is typically some loss in ability to hear
effectively; the higher the frequency beyond about 1,000 hertz,
the greater the loss.
Clearly, there is progressive anatomic, physiological,
and cognitive decline associated with aging, albeit variable in
severity and onset among individuals. Physicians, psychologists,
physiologists, and scientists of other disciplines have identified
many age-associated variables, some easily measurable, some
not, that may be important to human function. There may be
other variables, not yet identified, that play an equally significant
role. We know that, at some age, everyone reaches a level of
infirmity or unreliability that is unacceptable in a pilot in air
transportation. That age will vary from person to person but
cannot yet be predicted in a specific individual. Because it is
unacceptable for these pilots to work until failure or until there
is obvious impairment, the age of 60 has served well as a
regulatory limit since 1959. Many commenters state that the
Age 60 Rule is arbitrary and there is no scientific basis for it.
Others would choose a different arbitrary age. For instance, the
Acting Chief, Adult Psychological Development, Behavioral and
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Social Research Program, NIA, submitted a comment in 1993
on behalf of the NIA. He states the view that the age limit could
be increased "to an age closer to the mid-sixties.". However, the
studies he cites do not point to an age closer to the mid-sixties
any more definitively than they point to the age of 60 as an
appropriate age limit.
While science does not dictate the age of 60, that age is
within the age range during which sharp increases in disease
mortality and morbidity occur.
II(b). Hilton Study and Other Accident Rate Studies
Over the years, several reports have examined the rate
of accidents as they relate to age in various populations groups,
in an effort to better understand how aging may affect safety.
As discussed above, the Hilton Study was initiated by the FAA
to look at accident rates in pilots. Many commenters state that
the report provides justification for a rule change. They point
out that the report shows the same accident rate for pilots who
are 50 and pilots who are 65. They state that the report finds
that accident rates of part 121 pilots decrease with age. Some
other commenters, however, state that the report does not
provide justification for a rule change. They state that the report
is not meaningful since correlating accident rates solely with
total flying hours and recent flying hours is not a valid
measurement. They also state that it is not meaningful to
compare private pilots who fly beyond age 60 with pilots who
fly a lot of hours per year in part 121 operations.
David Michaels, Ph.D., MPH, Associate Professor of
Epidemiology, The City University of New York Medical
School, submitted comments on the Hilton Study. He points out
that accident rates are a very crude tool to examine the
relationship between pilot age, health, and performance. The
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IOM, he notes, “recognized the existence of a fundamental
problem: since there are no Class I pilots flying Part 121 flights
beyond age 60, there are no medical, performance or even
accident data on the group of greatest interest. Needed are data
on vision, reaction time, judgment, circadian rhythm and many
other neurobehavioral and physiological measures." This
problem led to the IOM's recommendation that extensive
additional data be collected and analyzed to better understand
the relationship of aging and pilot performance. Dr. Michaels
notes that the Hilton Study did not take the approach
recommended by the IOM. Rather than examining the
neurobehavioral and physiological measures detailed by the
1OM, the authors of the Hilton Study examined only accident
rates. (However, the authors of the Hilton Report fully carried
out the work statement of their research contract with the
agency which asked only that accidents be studied.)
Dr. Michaels further noted that numerous studies have
demonstrated that, among various groups of pilots examined,
increasing accident risk is associated with increasing age. He
includes papers by Golaszewski (1983); Mortimer (1991); and
an analysis by the Office of Technology Assessment (1990)
which support this finding. He also invites attention to the
citation by the NIA Report of studies by Harper (1964);
Lategola, et al (1970); Rohde and Ross (1966); and Booze
(1977), all demonstrating increasing risk with increasing age.
Dr. Michaels warns that it would be contrary to customary
epidemiologic practice to accept unconditionally and definitively
findings from a single study that are substantially different from
those of previous studies.
There is contention regarding the Hilton Study's
grouping of pilots for comparison purposes. Richard
Golaszewski, the author of two papers on the relationship
between pilot age and accident rates, belives that the Hilton
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Study's conclusions are based on the use of a group of pilots
(holders of Class III medical certificates who have more than
500 hours of total flight time and 50 hours of flight time in the
last year), inappropriate for inferences about the likely accident
rate performance of airline pilots of age 60 and above. He
believes this group is least like airline pilots and suggests his
own alternative: Professional pilots who did not fly for airlines
but who held Class I or II medical certificates. Mr. Golaszewski
cites the Second Golaszewski Report for conclusions opposite
to the Hilton Study-increases in accident rates with age for
professional pilots.
The Hilton Study provides a discussion of the First
Golaszewski Report, noting those researchers' disagreement
with Mr. Golaszewski's methodology and questioning his
conclusions. The study also notes methodological concerns
regarding the cited works by the Office of Technology
Assessment; Mortimer; and Guide and Gibson (1991).
Dr. Michaels concludes that (1) the Hilton Study does
not present convincing evidence that pilots holding Class I
medical certificates past the age of 60 are not at increased risk
of accidents, and (2) that the study is a methodologically invalid
foundation for rulemaking. He suggests that the analyses
performed are not valid because of the small size of the study
(very few accidents and a very large number of flight hours),
because the study is insensitive to the real concerns (whether
aging is associated with increased risk for incapacitation), and
because the study does not have well-documented exposure
data. The later refers the fact that the Hilton Study calculated
accident rates by comparing the total hours flown. However,
because most accidents occur during take offs and landings, Dr.
Michaels states that hours flown is not a useful measure in
calculating the risk of accidents. He believes that the methods
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used in the Hilton Study would obscure any increased rate of
accidents among older pilots in the analyses presented.
The First Golaszewski Report concluded that pilots
with Class I medical certificates (required for part 121 air
carrier pilots in command) and Class II medical certificates
(required for other commercial pilots) had a substantially higher
accident rate after age 60 than at younger ages. This report was
cited by the FAA in denying a petition for exemption from §
121.383(c) submitted by Courtney Y. Bennett et al., and John
H. Baker, et al., in 1986. Golaszewski, in the study report itself,
noted and resolved to the FAA's satisfaction various sources of
potential error and provided rationale for the choices made.
Because the study viewed the accident experience of holders of
Class III medical certificates (required for non-commercial
operations) and of all classes of medical certificate combined
rather than that of identified airline pilots, however, and because
of disagreement with Golaszewski's selection of numerators and
denominators for calculating accident rates, the study findings
and methodology were disputed by the petitioners in their later
legal action in a U.S. Circuit Court of Appeals. Although the
court identified limitations in t
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