Opposition Brief — Professional Pilots Federation v. Federal Aviation Administration

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No. 97-1267

In the Supreme Court of the Anited States “

OCTOBER TERM, 1997

PROFESSIONAL PILOTS FEDERATION, ET AL.,

PETITIONERS

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

FRANK W. HUNGER

Assistant Attorney General

ROBERT S. GREENSPAN

CHRISTINE N. KOHL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Age Discrimination in Employment

Act of 1967, 29 U.S.C. 621 et seq., limits the Federal

Aviation Administration’s authority to adopt the

“Age 60 Rule,” 14 C.F.R. 121.383(c), an air transporta-

tion safety standard that prohibits persons sixty

years of age or older from serving as pilots of most

commercial aircraft.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Advocates for Highway & Auto Safety v. Federal

Highway Admin., 28 F.3d 1288 (D.C. Cir. 1994) ..... 5

Air Line Pilots Ass’n, Int'l v. Quesada, 276 F.2d

a hausuianuebesdtilvivedsns 3

Aman v. FAA, 856 F.2d 946 (7th Cir. 1988) ...... 5, 18, 19

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

Se A SF alls WE CRIIP ED aceticcrncendcvscccivcucchsessnes 5, 18, 19

Black v. Cutter Laboratories, 351 U.S. 292 (1956) .. 16

Burlington Truck Lines, Inc. v. United States,

Se SE: NT GEIUNIEE icciuinticcondcinncnssocacsictimnetaststhinvenes 14, 15

Coupé v. Federal Express Corp., 121 F.3d 1022

(6th Cir. 1997), cert. denied, No. 97-1012

a eanhccoan 13, 14

EEOC vy. American Airlines, Inc. 48 F.3d 164 (5th

RN I ie at ateel cicada ier ccc atsk Satan cnbugbackaseiiaets acirce 18

EEOC vy. Boeing Co., 843 F.2d 1213 (9th Cir.),

cert. denied, 488 U.S. 889 (1988) ................cssccseesees 17

Gray v. FAA, 594 F.2d 793 (10th Cir. 1979) ............ 5

Keating v. FAA, 610 F.2d 611 (9th Cir. 1979) ......... 5

Massachusetts Bd. of Retirement v. Murgia,

SE NE ois cs cciehncelniinbsdicadeyiecsinaceususecent, 3, 4

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

SUE Gill ediisidcancolaicienedubabetousesinibbecsidientiinvaserseussucienyas 5

Rombough v. FAA, 594 F.2d 893 (2d Cir. 1979) ...... 5

Starr v. FAA, 589 F.2d 307 (7th Cir. 1978) ............ 5

(IIT)

Cases—Continued: Page

Trans World Airlines, Inc. v. Thurston, 469 U.S.

BEE CRE siukanciisccnucivcsisassdictsinnada esidencenkcens 18

Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir.

4 REM ROSE ee eee RUMI NE ES Cd aK, COWS iRUAU NRHN IAM SBIR 18

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

".) SeRaRehah ed Healer ee on le aa ear Acre 11, 12, 13, 14

Williams vy. Hughes Helicopters, Inc., 806 F.2d

SE UAE Fr I waletenicabactdcchakbia wai dkiekccden teens 18

Statutes, rule and regulations:

Administrative Procedure Act, 5 U.S.C. 706(2)(A).... 9, 15

Act of Dec. 29, 1979, Pub. L. No. 96-171, 93 Stat.

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Age Discriminiation in Employment Act of 1967,

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SF A ic EIR AD Sarisnensintestcsacthucsdipcnccaisenons 9, 12

Be RIN, PRUE siacibiestusionasnaccinaviiasiccbmicsesiesens 10

Department of Transportation and Related Agencies

Appropriations Act of 1997, Pub. L. No. 104-205,

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Miscellaneous:

Age Discrimination and the FAA Age 60 Rule:

Hearing Before the House Select Comm. on Aging,

99th Cong., Ist Sess. (Comm. Pub. No. 533, 1985) .... 5

24 Fed. Reg. (1959):

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Wh SPOUT canaguaneessscesbunacstéssuabianbiiaminciastc aac oe 2

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Miscellaneous—Continued: Page

47 Fed. Reg. (1982):

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| PS eG TOME. sbi esnsdasesibadentonsesacandgionsensiventeeiidass d

| 49 Fed. Reg. (1984):

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i a a 4

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60 Fed. Reg. (1995):

OE hehe a ee ee s

i A a ee 8

In the Supreme Court of the Aiuted States

OCTOBER TERM, 1997

No. 97-1267

PROFESSIONAL PILOTS FEDERATION, ET AL.,

PETITIONERS

FEDERAL AVIATION ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. al-

a39) is reported at 118 F.3d 758. The decision of the

Federal Aviation Administration (Pet. App. a40-a76)

is published at 60 Fed. Reg. 65,977.

JURISDICTION

The court of appeals entered its judgment on July

15, 1997. A petition for rehearing was denied on

November 5, 1997. Pet. App. a77. The petition for a

writ of certiorari was filed on February 3, 1998. This

Court’s jurisdiction is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Congress has given the Federal Aviation Ad-

ministration (FAA) broad authority to prescribe

“regulations in the interest of safety for the maxi-

(1)

mum hours or periods of service of airmen and other

employees of air carriers” and to set safety standards

for air carriers. 49 U.S.C. 44701(a)(4) and (b)(1). The

agency must regulate “in a way that best tends to

reduce or eliminate the possibility or recurrence of

accidents in air transportation.” 49 U.S.C. 44701(c),

Moreover, when prescribing air safety standards, the

FAA must 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).

The “Age 60 Rule,” which prohibits air carriers

from using, and any person from serving as, a pilot in

most commercial operations “if that person has

reached his 60th birthday,” is a long-standing safety

standard. 14 C.F.R. 121.3883(¢). The FAA promul-

gated the rule in 1959 because of its concern about the

danger to the public if the pilot of a large commercial

aircraft were suddenly to become incapacitated. See

24 Fed. Reg. 5248 (1959). In that rulemaking, the

agency found “that there is a progressive deteriora-

tion of certain important [physiological] and psycho-

logical functions with age, that significant medical

defects attributable to this degenerative process

occur at an increasing rate as age increases, and that

sudden incapacity due to such medical defects be-

comes significantly more frequent in any group

reaching age 60.” 24 Fed. Reg. 9767 (1959). The

agency also found that incidents of sudden incapacity

were difficult to predict, and that the ability to per-

form the type of highly skilled tasks required of pilots

was “even less susceptible to precise measurement.”

Ibid.

The FAA therefore determined that the Age 60

Rule, which precludes persons from piloting large

commercial aircraft from that age onward (but not

from serving in other positions, such as flight engi-

neer), Was necessary to protect the public safety. The

rule was challenged immediately and upheld as a

reasonable exercise of the FAA’s mandate to protect

public safety. Air Line Pilots Ass’n, Int'l v. Quesada,

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

2. The FAA and others have repeatedly reexam-

ined the rule. In 1979, Congress directed the National

Institutes of Health, in consultation with the Secre-

tary of Transportation, to conduct a study of the Age

60 Rule. Act of Dec. 29, 1979, Pub. L. No. 96-171, 98

Stat. 1285. The National Institute on Aging (NIA)

was assigned responsibility for the study and issued

its report in 1981. Although the NIA found “no

convincing medical evidence to support age 60, or any

other specific age, for mandatory pilot retirement,”

the NIA acknowledged the “abundant and persuasive

evidence that, among pilots as well as others, disease,

disability and death rates rise increasingly steeply

during each half-decade beyond the age of 50.” C.A.

App. 159. The report added: “Aircraft accidents at-

tributed to acute or subtle incapacitation from disor-

ders associated with aging have occurred in the

United States and elsewhere * * *. The available

actuarial and epidemiological data suggest that the

probability of such accidents will increase if the age

limit is increased.” Jd. at 161. The NIA could not

identify, however, any means of singling out those

pilots who would pose the greatest hazard. Jd. at 158,

164." The NIA therefore made three recommenda-

! In Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 315-316 (1976), this Court recognized that “physical ability

generally declines with age” and rejected an equal protection

tions: (1) retention of the Age 60 Rule, (2) collection

of medical and performance data necessary to con-

sider relaxation of the rule, and (3) extension of the

rule to all for-hire passenger operations, as the

National Transportation Safety Board (NTSB) had

urged. Jd. at 158.

In response to the NIA report, the FAA issued an

advance notice of proposed rulemaking, seeking public

input on the recommendation to collect more data on

the effects of aging on pilot performance. 47 Fed.

Reg. 29,782 (1982). The FAA proposed an eight-year

experiment, using a select group of volunteer pilots

who would continue flying until age 62 and would be

subject to extensive quarterly testing. Jd. at 29,783-

29.784. After considering hundreds of comments,

however, the FAA withdrew the proposal. 49 Fed.

Reg. 14,692 (1984). Among other things, the agency

found no sufficient means to collect performance data,

from a statistically valid sample, under conditions of

stress and fatigue. Jd. at 14,693. Nor were there

tests “that can adequately determine which individual

pilots are subject to incapacitation” due to cardio-

vascular, cerebrovascular, or other disease. bid.

The FAA therefore withdrew the proposal “because,

in the absence of validly selective tests, there are not

sufficient means for collecting quantitative medical

and performance data on airline pilots over age 60

under conditions of actual operational stress and

fatigue that do not introduce an unacceptable safety

challenge to a State’s imposition of a mandatory retirement age

for police officers, rather than use of individualized testing.

The dissent, as well, noted that at some point “medical ex-

aminations lose their predictive ability” and cited the Age 60

Rule favorably in that connection. Jd. at 326 n.6 (Marshall, J.,

dissenting).

wer

risk.” Jd. at 14,692. Cf. Advocates for Highway &

Auto Safety v. Federal Highway Admin., 28 F.3d

1288 (D.C. Cir. 1994) (striking down temporary

program, in which waivers of long-standing safety

standard were granted to truckers with impaired

vision in order to collect data for potential amendment

of vision standard).

The FAA has also reviewed the Age 60 Rule on a

number of occasions in response to petitions for

rulemaking or exemptions. In each instance, the

agency concluded that neither repeal of the rule nor

an exemption from it was warranted. Without excep-

tion, the courts have upheld those determinations.

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

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

FAA, 594 F.2d 793 (10th Cir. 1979); Rombough v.

FAA, 594 F.2d 893 (2d Cir. 1979); Keating v. FAA, 610

F.2d 611 (9th Cir. 1979); Baker v. FAA, 917 F.2d 318

(7th Cir. 1990), cert. denied, 499 U.S. 936 (1991).’

The Age 60 Rule has attracted Congress’s atten-

tion from time to time as well. For example, Con-

gress held hearings on the rule in 1985, but did not

amend or repeal the rule legislatively. See Age

Discrimination and the FAA Age 60 Rule: Hearing

Before the House Select Comm. on Aging, 99th Cong.,

Ist Sess. (Comm. Pub. No. 533, 1985). Congress has

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

of appeals reviewed several exemption denials. Although it up-

held the FAA’s conclusion that the petitioners in that case had

not shown an effective protocol to screen out all increased risk

of incapacitation, it remanded for a more detailed response to

petitioners’ claim that experience offsets undetected physical

losses. Jd. at 957. After the FAA responded, the matter re-

turned to the court in Baker, which upheld the agency’s denial

of the exemptions.

enacted a provision in the Internal Revenue Code that

gives special tax treatment to pilots affected by the

rule. 26 U.S.C. 415(b)9). And recently, Congress

prohibited the NTSB from expending any funds to

study the performance of pilots over age 60.

Department of Transportation and Related Agencies

Appropriations Act of 1997, Pub. L. No. 104-205, § 345,

110 Stat. 2976.

3. The FAA’s most recent review of the rule began

in 1990, when it contracted for a study correlating

accident data with pilot age and flying time. The final

report, known as the “Hilton Study,” was issued in

1993. Although the accident data examined in the

Hilton Study revealed “no hint of an increase in

accident rate for pilots of scheduled air carriers as

they neared their 60th birthday,” the study’s authors

warned that the question whether the retirement age

should be increased “must be answered very conser-

vatively because of the possibility of catastrophic

results.” C.A. App. 144. The study suggested, how-

ever, that the retirement age for pilots might “cau-

tiously” be increased to 63. Jd. at 145.

Soon after the Hilton Study was issued, the FAA

invited the public to comment on it and to participate

in a meeting to consider increasing the maximum age

for pilots and other issues related to the Age 60 Rule.

58 Fed. Reg. 21,336 (1993). During that process,

petitioner Professional Pilots Federation submitted a

petition for rulemaking, in which it asked the FAA to

repeal the Age 60 Rule, and petitioner William T.

Reiners, III, requested an exemption. After consider-

ing an extensive record, the FAA concluded that the

“concerns regarding aging pilots and underlying the

original rule have not been shown to be invalid or

misplaced.” Pet. App. a53. It therefore decided not to

initiate a rulemaking to change or repeal the rule and

declined to grant any pending petitions for exemption

or rulemaking. /d. at a52, a63, a76.

The agency acknowledged that, in the years since

the rule was adopted, “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.”

Pet. App. a53. Nonetheless, the frequency of cardio-

vascular disease still rises with age, especially

between ages 55 and 65, and remains the most

frequent cause of death in pilots and the genera!

population. /bid. Most problematic, however, are age-

related impairments of cognitive function (e.g.,

attention span, language ability, visuospatial skills,

memory) and the increasing incidence of dementia,

which may be characterized by subtle changes and are

more difficult to detect and assess. /d. at a54-a57.

Given the FAA’s statutory mandate to prescribe

regulations that will assure “the highest possible

degree of safety,” 49 U.S.C. 44701(d)(1)(A), and the

lack of any proven, effective means of detecting or

predicting age-related impairment of cognitive func-

tion, the FAA concluded that the Age 60 Rule effec-

tively limits “the increasing, unpredictable danger

associated with aging” and “provides additional con-

fidence in air transportation safety.” Pet. App. a65.

Addressing comments contending that the rule

does not comply with the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. 621 et

seq., the FAA agreed that “limitations based on age

are to be avoided if possible,” but stressed that “safety

in air transportation is paramount.” Pet. App. a72.

Given the potentially severe consequences of a pilot’s

subtle or sudden incapacitation and the current lack

of any acceptable way to screen an individual pilot for

age-related risks, the agency concluded that “at this

time safety requires the Age 60 Rule to remain

unchanged.” Jbid.

In a companien proceeding concerned with com-

muter airlines, the FAA extended the Age 60 Rule

and other safety standards previously applied only to

large commercial airlines to commuter operations, as

the NTSB had recommended. The agency found that,

because “rules designed to enhance the performance

of pilots are among the most valuable in reducing the

number of accidents,” the Age 60 Rule will provide

“an additional measure of safety by reducing the risk

that age-related degradation will affect pilot perform-

ance.” 60 Fed. Reg. 65,832, 65,843 (1995).

4. Petitioners sought judicial review of the FAA’s

decisions not to commence a rulemaking to repeal the

Age 60 Rule and to extend the rule to commuter

operations. They argued that the rule is a “direct

violation” of the ADEA and is unsupported by the

record and therefore arbitrary.

The court of appeals unanimously rejected petition-

ers’ ADEA argument, agreeing with the FAA that, by

its terms, the ADEA, 29 U.S.C. 623(a)(1), prohibits

only an “employer” from discriminating on the basis

of age in employment decisions: “Nothing in the Act

can plausibly be read to restrict the FAA from mak-

ing age a criterion for employment when its [sic] acts

in its capacity as the guarantor of public safety in the

air.” Pet. App. a8. The court explained further that,

“li]f the Congress intends to limit the means available

to the FAA in its pursuit of air safety, we trust it will

say so rather than leave the matter to the courts to

infer.” Id. at a8-a9. Because the ADEA thus does not

limit the FAA’s authority as a safety regulator, the

a S

court found it unnecessary to decide whether the Age

60 Rule is a “bona fide occupational qualification”

(BFOQ) under 29 U.S.C. 623(f)(1). Pet. App. a9; see

id. at a26.

The court also unanimously agreed that the FAA’s

decision not to institute a rulemaking to repeal the

rule should be reviewed under the usual “arbitrary

and capricious” standard of the Administrative Pro-

cedure Act (APA), 5 U.S.C. 706(2)(A). Pet. App. a10,

a26 n.2. The panel majority held that, under that

standard, none of petitioners’ numerous objections

had merit. For example, with respect to petitioners’

claim that individualized testing could screen out

pilots at risk from age-related impairment, the court

stated that the “FAA explained that even state-of-the-

art testing cannot screen out potentially risky

pilots.” Jd. at al3. To the extent that data not pre-

sented to the agency were alleged to contradict that

finding, the court reasoned that “the FAA simply

cannot be faulted for failing to explain away data that

are not part of the record.” bid.

The court also found that the FAA’s policy of

allowing younger pilots with known medical problems

to continue flying, where such conditions can be

monitored, does not undermine the Age 60. Rule,

because “the subtler forms of physical and mental

decline that may accompany aging often cannot be

detected, let alone monitored or controlled.” Pet. App.

al8. The court held further that the FAA’s decision

to hold for-hire common carriers of passengers and

cargo to a higher safety standard than other forms of

air commerce (such as corporate aircraft and un-

scheduled air taxi services) is reasonable and based on

distinctions set forth in federal aviation law. /d. at

al8-a20.

The dissent maintained that the FAA had not

“provide[d] a reasoned explanation for its decision to

retain the Age 60 Rule.” Pet. App. a39. Despite the

agency’s solicitation and receipt of substantial public

input on the matter, the dissent stated that it was

“arbitrary” for the FAA to “refus[e] to try and obtain

the evidence it claims is necessary to rescind the

rule.” Jd. at a35.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

any other court of appeals. Furthermore, the FAA’s

Age 60 Rule does not conflict with the Age Discrimi-

nation in Employment Act of 1967 (ADEA) or the

regulations of the Equal Employment Opportunity

Commission (EEOC). Accordingly, the petition for a

writ of certiorari should be denied.

1. As the court of appeals unanimously held and

petitioners concede (Pet. 18), the ADEA, by its terms,

proscribes age discrimination only by “an employer.”

The ADEA therefore does not limit the FAA’s

authority as safety regulator of the airline industry.

29 U.S.C. 623(a); Pet. App. a8-a9. When Congress

intends that civil rights legislation apply to federal

agencies in their programmatic activities, it so pro-

vides in unmistakable language that is not present in

the ADEA. See, e.g., 29 U.S.C. 794(a) (“[nJo otherwise

qualified individual” shall be subject to discrimination

on the basis of disability “under any program or

activity conducted by any Executive agency” of the

federal government). “Nothing in the [ADEA] can

plausibly be read to restrict the FAA from making

age a criterion for employment when [it] acts in its

capacity as the guarantor of public safety in the air.”

' 1]

Pet. App. a8. The court of appeals therefore correctly

ruled that “[t]he 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” to regulate air carriers to

promote air safety. /bid. (emphasis added).

Contrary to petitioners’ claim (Pet. 14), the court of

appeals did not depart from the principle of statutory

construction that a specific statute generally takes

precedence over a more general one. Nor did the court

ignore (Pet. 17) the principle that a court should

endeavor to give effect to each of two statutes that

conflict. Here, the ADEA and federal aviation safety

laws are simply addressed to different matters, and

the court thus properly concluded that there is no

basis for extending the ADEA beyond the particular

subject matter to which it is plainly addressed—i.e.,

age discrimination by “an employer.”

2. Petitioners mistakenly argue (Pet. 13-18) that

the court of appeals’ decision conflicts with Western

Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), and

relieves an airline employer of the burden of estab-

lishing that age is a bona fide occupational qualifica-

tion (BFOQ), within the meaning of the ADEA and

EEOC regulations, for a particular job. Having deter-

mined that the ADEA does not apply to the FAA’s

activities as a safety regulator, the court of appeals

correctly found no need to decide whether the Age 60

Rule is a BFOQ. Pet. App. a9, a26. The decision of

the court of appeals therefore does not conflict with

the EEOC’s BFOQ regulation or with Criswell,

which upheld that regulation.

The ADEA allows age-based discrimination “where

age is a bona fide occupational qualification reasona-

bly necessary to the normal operation of the

particular business.” 29 U.S.C. 623(f)(1). The EEOC,

which has responsibility for enforcing the ADEA, has

issued a regulation explaining what “[a]n employer”

must show in order to establish a BFOQ defense to a

claim of age discrimination. The employer must es-

tablish that “(1) the age limit is reasonably necessary

to the essence of the business, and either (2) * * *

all or substantially all individuals excluded from the

job involved are in fact disqualified, or (3) * * * some

of the individuals so excluded possess a disqualifying

trait that cannot be ascertained except by reference

to age.” 29 C.F.R. 1625.6(b). The regulation also pro-

-vides that, if public safety is a goal, “the employer

must prove that the challenged 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.” Jbid.

In Criswell, 472 U.S. at 416-423, the Court endorsed

the EEOC’s regulation, ruling that an employer has

the burden of proving that an age limit is a BFOQ

reasonably necessary for the conduct of its business,

even where there are public safety implications, and

that such determinations are to be made on a case-by-

case basis. The Court also held that an airline had

not established a BFOQ defense for the mandatory

retirement age of 60 that the airline—not the FAA—

had imposed on its flight engineers. The Criswell

Court never suggested that the FAA’s Age 60 Rule

for commercial pilots violates the ADEA or does not

constitute a BFOQ. Rather, Criswell distinguished

the airline’s managerial decision to require flight

engineers to retire at age 60 from the FAA’s mandate

that pilots do so, on the ground that “the qualifica-

tions for a flight engineer [are] less rigorous than

those required for a pilot.” Jd. at 418. The Court

further noted that the FAA’s rule was “adopted for

safety reasons” (ibid.) by the “agency with primary

responsibility for maintaining airline safety.” Jd. at

423.

Inasmuch as the court of appeals here did not

address whether the Age 60 Rule is a BFOQ, its

decision cannot conflict with the EEOC’s regulation

or Criswell. Another court of appeals, however, has

recently upheld an air carrier’s claim that the Age 60

Rule is a BFOQ under the ADEA and the EEOC’s

regulation.

In Coupé v. Federai Express Corp., 121 F.3d 1022

(6th Cir. 1997), cert. denied, No. 97-1012 (March 23,

1998), a pilot subject to the Age 60 Rule faced the

choice of retirement or training for a flight engineer

position. The EEOC dismissed his age discrimination

complaint, noting that his employer “was acting

‘pursuant to Federal Air Regulations.’” Jd. at 1024.

In federal court, the employer defended its action on

the ground that the Age 60 Rule is a BFOQ for com-

mercial pilots, and both the district court and court of

appeals agreed. The court of appeals found that, al-

though the FAA has never purported to establish the

Age 60 Rule as a BFOQ, it “performed the same sort

of analysis that a court would undertake in determin-

ing the legitimacy of a BFOQ defense under the

framework established by the EEOC regulation.” Jd.

at 1024-1025. The court then held that “[t]he em-

ployer’s burden to make a particularized factual

showing in support of its BFOQ defense is satisfied

by demonstrating the existence of an age-based

federal agency rule by which the employer is bound—

at least where, as here, the rule has been adopted on

grounds that could support a BFOQ defense had the

age limit been adopted by the employer voluntarily.”

Id. at 1026. The court added that it does not believe

that the ADEA requires an employer “to second-

guess the very agency established by Congress to

regulate it.” Jbid.

Under the Sixth Circuit’s decision, an air carrier

can comply with both the FAA’s safety-based Age 60

Rule and the ADEA by showing that the rule’s retire-

ment age limit for most commercial pilots is a BFOQ.

The Age 60 Rule is also consistent with Criswell,

which recognized that, “[w]hen an employer estab-

lishes that a job qualification has been carefully for-

mulated to respond to documented concerns for public

safety, it will not be overly burdensome to persuade a

trier of fact that the qualification is ‘reasonably nec-

essary’ to safe operation of the business.” 472 USS. at

419.

8 Petitioners’ argument (Pet. 19-22) that the

court of appeals applied “an insufficiently rigorous

standard of review” to the FAA’s decision because

that decision assertedly conflicts with the jurisdic-

tion and policies of another federal agency is mis-

taken. As we have shown, the Age 60 Rule does not

conflict with the ADEA or with the EEOC’s regula-

tions and jurisdiction. Thus, cases such as Burling-

ton Truck Lines, Inc. v. United States, 371 U.S. 156,

173 (1962)—in which the Court cautioned that one

federal agency should not “trench upon [anjother’s

jurisdiction”—are inapposite.® In any event, Burling-

3 Petitioners imply (Pet. 19-20) that the FAA both ignored

the ADEA and claimed that it was entitled to deference for its

interpretation of that statute. Neither suggestion is correct.

First, in announcing its decision not to initiate a rulemaking to

repeal the Age 60 Rule, the FAA explicitly addressed peti-

tioners’ comments that the rule does not comply with the

ADEA. Although the FAA agreed that “limitations based on

eee eee

ton Truck Lines did not hold that the standard of re-

view prescribed by the Administrative Procedure Act

(APA) is superseded when agency action implicates

more than one statute. In fact, the Court applied the

APA in Burlington Truck Lines in holding that the

order of the Interstate Commerce Commission could

not stand because it contained “no findings and no

analysis.” Jd. at 167 & n.15. It is thus not surprising

that neither the majority nor the dissent in the court

of appeals endorsed petitioners’ “heightened stan-

dard” (Pet. 20). See Pet. App. al0, a26 n.2.

Under the APA, the court of appeals was obliged to

determine if the FAA’s action was “arbitrary, capri-

cious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. 706(2)(A). The court

of appeals applied that standard to the FAA’s decision

not to initiate a rulemaking to repeal the Age 60 Rule

and also held that the ADEA does not limit the FAA’s

authority as a safety regulator. Pet. App. a8-a9. The

court thus concluded that the FAA’s decision is “in

accordance with law.”

age are to be avoided if possible,” it also stressed that “safety in

air transportation is paramount.” Pet. App. a72. The agency

explained further that no commenter in the proceeding had

provided it with any existing testing protocol that could

adequately screen pilots for the risk of subtle or sudden age-

related incapacitation. Jbid. Second, although the FAA prop-

erly argued in the court of appeals that its expertise in matters

of aviation safety is entitled to deference, the agency did not

seek—and did not receive—deference for its argument that the

ADEA does not apply to its safety-based determinations, such

as the Age 60 Rule. See Gov’t C.A. Br. 21-36; Pet. App. a7-a9.

4 The court also concluded that the FAA’s decision is not

arbitrary and capricious because the rule applies to some types

of pilots but not to others. Pet. App. al5-a21. Although the

issue whether the FAA’s decision is arbitrary or capricious is

4. Finally, petitioners err in contending (Pet. 23-

26) that the decision of the court of appeals conflicts

with the reasoning and outcome of decisions in other

circuits. Petitioners concede (Pet. 23) that no court

has ever held the Age 60 Rule to be invalid. That

should end the matter, because this Court “reviews

judgments, not statements in opinions.” Black v.

Cutter Laboratories, 351 U.S. 292, 297 (1956). Peti-

tioners argue, nonetheless, that the reasoning of the

court of appeals differs from that of other courts that

have examined the Age 60 Rule in the context of age

discrimination claims. They further maintain (Pet.

26) that the “disparate outcomes” in various cases

involving age discrimination claims in the aviation

industry suggest that more guidance from the Court

in this area is necessary. Petitioners are mistaken.

not “fairly included” in petitioners’ “Questions Presented,”

Sup. Ct. R. 14.1(a), petitioners nonetheless discuss the allegedly

inconsistent application of the rule in their petition. Pet. 21-22,

25.

As the court of appeals correctly concluded, the Age 60 Rule

is not applied in an arbitrary or inconsistent manner. For

example, the rule applies to cargo operations, but not to

corporate aircraft, because federal law requires the highest

safety standards for for-hire common carrier service to the

public, irrespective of whether passengers are transported, and

does not impose that requirement for other air transportation.

Pet. App. al8-al9. Younger pilots with certain known medical

conditions may be permitted to continue flying, provided that

the condition can be assessed and monitored adequately; in

contrast, “the subtler forms of physical and mental decline that

may accompany aging often cannot be detected, let alone

monitored or controlled.” Jd. at al8. Finally, the fact that

some foreign pilots over age 60 may fly in U.S. airspace is a

consequence of other provisions of federal aviation law and the

government’s treaty obligations. Jd. at a20-a21.

ee SS

As petitioners acknowledge (Pet. 10-11), the court

of appeals decisions here and in Coupé are the first

cases in which the FAA’s Age 60 Rule has been

challenged under the ADEA. As we have explained,

the two decisions are fully compatible in both reason-

ing and outcome. In this case, the court held that the

ADEA does not apply to the FAA in its role as safety

regulator and, thus, it had no occasion to reach the

BFOQ issue. In Coupé, the court held that the airline

employer established a BFOQ defense by demonstrat-

ing that it is bound by the FAA’s safety-based Age 60

Rule.

Other decisions cited by petitioners as conflicting

with the reasoning and outcome of the decision of the

court of appeals in this case did not pass on the FAA’s

Age 60 Rule at all. Rather, at issue in those cases

were mandatory age requirements imposed as mana-

gerial decisions by the employer, often for jobs other

than commercial pilots, the only positions covered by

the Age 60 Rule. In EEOC v. Boeing Co., 843 F.2d

1213 (9th Cir.), cert. denied, 488 U.S. 889 (1988), for

example, an aircraft manufacturer failed at summary

judgment to establish that a requirement it imposed

on its own corporate pilots to retire at age 60 was a

BFOQ. Although the court expressed some reserva-

tions about the FAA’s Age 60 Rule in dicta, it

acknowledged that the statutory standard underlying

the rule “requires ‘the highest possible degree of

safety in the public interest? * * * and may be

more hospitable to discrimination in the interests of

safety than ADEA’s standard for a BFOQ.” IZd. at

1220. The court also found that some of the tasks

performed by corporate pilots are not as stressful and

do not pose “as grave a safety risk” as the responsi-

bilities of commercial pilots. Jd. at 1221.

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In Trans World Airlines, Inc. v. Thurston, 469 U.S.

111 (1985), the Court held that an airline’s job trans-

fer policy, which provided fewer “bumping” rights to

pilots removed from their positions due to the Age 60

Rule than to pilots removed for other reasons, vio-

lated the ADEA. Because the Age 60 Rule itself was

not challenged, however, the Court expressed no view

on its lawfulness, noting only that the EEOC had not

endorsed it as a BFOQ. Jd. at 123 & n.17.

The fact that there have been different outcomes in

cases involving different job categories and different

employer-imposed age limitations is not particularly

surprising. Compare, e.g., Williams v. Hughes Heli-

copters, Inc., 806 F.2d 1387 (9th Cir. 1986) (affirming

jury verdict that upheld employer’s age-based “stop

flying” policy as a BFOQ for helicopter pilots) with

Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982)

(reversing summary judgment ruling that employer’s

mandatory retirement age for corporate pilots was a

BFOQ). Cf. also EEOC v. American Airlines, Inc.,

48 F.3d 164 (5th Cir. 1995) (upholding, based on

collateral estoppel, ruling that airline’s policy against

hiring flight officers too old to reach the rank of

captain before age 60 is a BFOQ). Those decisions are

not irreconcilable. More important, they have no

bearing on the legal issue presented by this case—

whether the ADEA limits the FAA in its role as

safety regulator—a matter on which there is no

conflict in the courts.

Finally, there is no conflict between the decision of

the court of appeals here and the decisions in Baker v.

FAA, 917 F.2d 318 (7th Cir. 1990), cert. denied, 499

U.S. 936 (1991), and Aman v. FAA, 856 F.2d 946 (7th

Cir. 1988). Neither Baker nor Aman, which ruled on

challenges to the FAA’s denial of exemptions from

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the Age 60 Rule, involved an ADEA claim. In any

event, as explained in note 2, supra, the court in

Aman, 856 F.2d at 954, found that “substantial evi-

dence supported the FAA’s conclusions” that no

effective test existed to eliminate all incremental risk

of “sudden incapacitation or undetected deterioration

of skills among pilots over sixty.” The court re-

manded to the FAA, however, for further considera-

tion of the claim that “older pilots’ edge in experience

offsets any undetected physical losses.” Jd. at 957.

On remand, the FAA again denied the requested

exemptions from the Age 60 Rule, and the matter

returned to the court of appeals in Baker. Although

the court of appea’s was critical of the evidence

presented by both sides, the court concluded that the

FAA’s decision was supported by substantial evidence

and upheld the denial of the exemptions. 917 F.2d at

319-323. The court acknowledged that “crucial issues

of public safety are at stake,” but encouraged the

FAA to continue to study the matter. Jd. at 322. The

FAA did precisely that, in commissioning the Hilton

Study and examining all aspects of the Age 60 Rule in

the 1995 proceeding that led to the decision in this

case. Thus, Aman and Baker in no way conflict with

the decision of the court of appeals here.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.