Amicus Curiae Brief — Professional Pilots Federation v. Federal Aviation Administration

Supreme Ceurt, U.S.

ee 2.

| APR 6 1998

No. 97-1267 | GFEICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

PROFESSIONAL PILOTS FEDERATION, WILLIAM T.

REINERS, II, PHILLIP 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

BRIEF OF AMICUS CURIAE SOUTHWEST AIRLINES

PILOTS’ ASSOCIATION, THE ORGANIZATION OF

BLACK AIRLINE PILOTS, INC. AND AMERICAN

ASSOCIATION OF RETIRED PERSONS IN SUPPORT OF

PETITION FOR CERTIORARI

THOMAS W. OSBORNE AIDAN D. JONES

CATHY VENTRELL-MONSEES (Counsel of Record)

MELVIN RADOWITZ 1818 N STREET NW, STE. 700

AMERICAN ASSOCIATION OF WASHINGTON, DC 20036

RETIRED PERSONS (202) 293-2386

601 E STREET, NW

WASHINGTON, DC 20049

(202)434-2060

Counsel for Amicus Curiae

Counsel for Amicus Curiae Southwest Airlines Pilots’

American Association of Retired Association and The Organization

Persons of Black Airline Pilots, Inc.

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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 Employmer 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.

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TABLE OF CONTENTS

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Statement of Interest of Amicus Curiae Southwest

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Statement of Interest of Amicus Curiae The

Organization of Black Airline Pilots, Inc. ................

Statement of Interest of Amicus Curiae American

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TABLE OF AUTHORITIES

Cases

Western Air Lines, Inc. v. Criswell.

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Statutes

Age Discrimination in Employment Act

5 U.S.C. §621 et seq. passim

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Federal Aviation Act (Reenacted Codified)

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No. 97-1267

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

PROFESSIONAL PILOTS FEDERATION, WILLIAM T.

REINERS, III, PHILLIP T. SHAW,

Petitioners

Vv.

FEDERAL AVIATION ADMINISTRATION,

Respondent.

BRIEF OF AMICUS CURIAE SOUTHWEST

AIRLINES PILOTS’ ASSOCIATION, THE

ORGANIZATION OF BLACK AIRLINE PILOTS,

INC. AND AMERICAN ASSOCIATION OF RETIRED

PERSONS IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

The Southwest Airlines Pilots’ Association (SWAPA), The

Organization of Black Airline Pilots, Inc. (OBAP) and the

American Association of Retired Persons (AARP)!

' Counsel of record wholly authored this brief. No persons or entities

than amicus curiae have made a monetary contribution to its preparation

or submission.

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respectfully request the Court to grant the petition for writ

of certiorari of the Professional Pilots Federation, William

T. Reiners, I, and Phillip T. Shaw in this case.

CONSENTS GRANTED

Petitioners and respondent have given their respective

consents to amicus curiae SWAPA, OBAP and AARP

filing a brief in support of the petition for certiorari.

STATEMENT OF INTEREST OF AMICUS CURIAE

SOUTHWEST AIRLINES PILOTS’ ASSOCIATION

SWAPA is an association of 2,542 professional pilots

employed by Southwest Airlines Company. As _ pilots

working for an air carrier subject to Part 121 of the Federal

Aviation Regulations, 14 C.F.R., Part 121, SWAPA's

members are subject to the Federal Aviation Administration's

"Age 60 Rule,” 14 C.F.R. §121.383(c). The Rule requires

SWAPA's members to retire from scheduled passenger

service once they reach Age 60. Once they are forced into

retirement, few members can find comparable employment

as pilots in operations not subject to Part 121 (e.g., corporate

aircraft or non-U.S. airlines).

Although retirement at age 60 may suit the economic

interest of pilots who fly for a few of the major airlines

where the pension plans and seniority are structured around

the Age 60 Rule,’ it adversely affects pilots in independent

* The two largest airline pilot unions, the Air Line Pilots Association

(ALPA) and the Allied Pilots Association (APA) opposed below any

change to the Age 60 Rule. See Comments of APA, Age 60 Docket

(FAA Docket No. 27264) (R. 292 (reference to the record in the joint

appendix on appeal below)); Comments of ALPA, Age 60 Docket (R.

341); Amicus Curiae Brief of APA in the court of appeals; Notice of

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airlines such as Southwest. Southwest has experienced

enormous growth in the 27 years since it was founded in

1971. The majority of SWAPA's current membership have

come on board within the last ten years. Many are older

pilots who previously worked for other airlines, including

ones that went bankrupt in the shakeout that followed

deregulation. As a consequence, they do not have the

security of a defined benefit pension plan structured around

an age 60 retirement, as do pilots at the larger carriers.

Instead, they must rely on the Southwest Airlines Pilots’

Association 401(k) Plan and the Southwest Airlines Company

Profit Sharing Plan, which are defined contribution plans.

Hence, Southwest Airlines pilots are required to fund

a significantly higher percentage of their retirements than

pilots at larger carriers. Thus, the right to work free of age

discrimination, guaranteed by the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seg. (ADEA) (1988),

is especially important not only to SWAPA's members, but

Amicus Curiae ALPA in the court of appeals. A large number of

ALPA’s and APA’s membership are pilots who work for older, larger

carriers where growth is slow, and, consequently, pilots can take a long

time to advance from the entry level position of flight engineer to full

captain. See, e.g., testimony of Capt. Tom Corboy, American

Airlines (R. 448). SWAPA believes that these unions do not speak for

pilots as a group but only for a vocal contingent of their respective

memberships. In any event, their policies are driven by economic

concerns. In testimony below before the FAA, APA’s spokesman,

Richard Lavoy acknowledges APA’s belief that abolition of the Rule

would “negatively impact promotions and compensation” (R. 404) and

cause “hundreds of furloughs” as a result of the industry’s alleged

“current shrinkage and no-growth period” (R. 405). ALPA in its

Comments to the FAA acknowledged that “Each ALPA collective

agreement is based on the presumption of mandatory retirement at age

60,” and that “salary and career progressions were established with the

assumption that pilots would retire at age 60 and create opportunities

for more junior pilots.” (R. 359).

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to a large cadre of other pilots who work for the younger,

more progressive airlines.

SWAPA’s interest in the safety of airline passengers

and Southwest Airlines’ safety record stand second to none.

Southwest Airlines and its pilots place the safety of their

passengers first. They don’t want their passengers to fly on

aircraft flown by unsafe pilots. SWAPA’s members “ride”

to their jobs on aircraft almost as often as they pilot aircraft.

They don’t want to ride on aircraft flown by unsafe pilots,

and they don’t want to co-pilot an aircraft with an unsafe

pilot.

STATEMENT OF INTEREST OF THE

ORGANIZATION OF BLACK AIRLINE PILOTS,

INC.

OBAP is a non-profit corporation organized under

the laws of the District of Columbia. Its purpose is to

enhance, advance, and promote educational opportunities in

aviation; to develop and sustain a process for the ongoing

mentoring of youth; to monitor the development of aviation

projects; and to protect the general interest of its members.

OBAP extends full membership to active, formerly

active or retired cockpit crew members of any commercial

air carrier and to any Federal Aviation Administration flight

crew inspector. OBAP extends associate membership to

those persons who are interested in the aviation industry

and are not eligible for full membership. Presently, OBAP

has 325 active full members and 1140 active associate

members. Many of OBAP’s full members are working or

have worked for air carriers subject to Part 121 of the

Federal Air Regulations and thus are or have been subject

to the Age 60 Rule.

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OBAP’s interest in this case is two-fold: (1) it

opposes the Age 60 Rule as unfairly and unlawfully

discriminatory; and (2) it believes that if a federal agency is

able to establish and continue a rule or practice that

discriminates in contradiction of federal non-discrimination

laws respecting age, similar unfair and unlawful practices

may arise or expand to discrimination on the basis of race,

gender, ethnicity or national origin.

STATEMENT OF INTEREST OF THE AMERICAN

ASSOCIATION OF RETIRED PERSONS

AARP is a nonprofit membership organization of

persons age 50 and older that is dedicated to addressing the

needs and interests of older Americans. AARP seeks

through education, advocacy, and service to enhance the

quality of life for all by promoting independence, dignity,

and purpose in work and retirement.

More than one third of AARP’s thirty-two million

members are employed individuals, most of whom are

protected by the ADEA, and state anti-discrimination laws.

One of AARP’s primary objectives is to achieve dignity and

equality in the work place through positive attitudes,

practices and policies regarding work and retirement.

Through its research, publications, and training programs,

AARP seeks to eliminate ageist stereotypes, to encourage

employers to hire and retain older workers, and to help older

workers overcome the obstacles they face because of age.

AARP’s concern in this case is that, based solely on

age, the FAA Age 60 Rule mandatorily retires pilots who are

otherwise physically and mentally fit and qualified to be

productive members of the work force, with little or no

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evidence that their reaching age 60 has any impact on airline

safety. AARP has consistently opposed this rule because it is

inconsistent with the purposes of the ADEA and contrary to

public policy.

REASONS FOR GRANTING THE WRIT

The issues Petitioners present are of the highest

importance. Congress with the ADEA has expressed the will

of the electorate in enacting legislation barring discrimination

based on age “with respect to [an individual’s] compensation,

terms, conditions, or privileges of employment” (29 U.S.C.

§623(a)(1)), except 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)). Yet the

FAA’s Rule arbitrarily banishes U.S. commercial airline

pilots from the captain and first officer seats the moment they

turn 60.

As hinted at by the dissent below, what might not be

arbitrary and capricious without the ADEA, may be with it.

The Age 60 Rule was arbitrarily conceived and, having been

politically nurtured for 38 years, has attained the veneer of

venerability. Yet SWAPA believes the Rule survives because

of political and economic, noi safety considerations.* The

The Petition for Certiorari has detailed the history of the Rule and the

decision below, but the role of ALPA and APA in influencing the FAA’s

decision to hold on to the Age 60 Rule deserves more explanation. The

FAA’s decision to reject the Hilton Report’s recommendation to raise the

age limit for Part 121 operations was largely based on the agency’s

acceptance of the criticism of the report voiced by David Michaels, a

researcher whose study of accident data was subsidized by ALPA and

APA (R. 73-74). Other arguments proffered by ALPA and APA, and

adopted by the FAA, include the following: (1) the contention that

“Medical science cannot accurately measure age-related deterioration in

vitally important cognitive functions” (APA Comments, R. 296; cf.

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dissent in the court of appeals aptly demonstrates why the

Court should look below the veneer; such a look would

reveal that the FAA has perpetuated the Age 60 Rule

unjustly.

The Age 60 Rule is a government agency-erected

monument to age discrimination.* As an affront to the spirit

if not the letter of the ADEA, it should be given great

scrutiny. While the Federal Aviation Act and the ADEA are

silent as to each other, the FAA has been accorded

extraordinary statutory power to be the arbiter of aviation

safety, while at the same time it controls (and has precluded)

the means to determine whether there is an appropriate basis

for this arbitrary Rule. We refer to the fact that the FAA has

refused to evaluate pilots over the age of 60, including

refusing to grant any exemptions to allow even a select group

of pilots to fly commercial aircraft beyond age 60. Pet. App.

A at a-68-69. The premise of the Rule thus continues

unevaluated.

With power comes responsibility. Petitioners speak

of the FAA’s decision as “power unrestrained” (Pet. at 22).

ALPA Comments, R. 356); (2) emphasis on the recommendations of the

1981 NIH Report as a basis for rejecting the recommendations of the

1993 Hilton Report (APA Comments, R. 298: ALPA Comments, R.

353); (3) the contention that simulator testing is inadequate to screen pilots

over the age of 60 (APA Comments, R. 308; ALPA Comments, R. 357).

By adopting the arguments espoused by ALPA and APA, the FAA

abdicated its role as a disinterested decision maker acting in the public

interest.

* As the dissent below cogently stated, “the Age 60 Rule stands as an

instance of government-mandated age discrimination for a particular

group of employees.” Pet. App. A at a-38.

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We see it as power abdicated.’ Rather than monitoring too

Closely, it has abdicated monitoring individual fitness to fly

in favor of an arbitrary age-based rule.° The FAA has failed

to ameliorate the Rule in 38 years, despite the ADEA, and

despite 38 years of revolutionary advances in medicine,

science and technology,’ all the while doing precious little

seriously to consider whether it should be changed.

We believe the record amply demonstrates that the

FAA has found it easier and more comfortable to do nothing

about the Age 60 Rule. To change the Rule would require

action by the FAA. For example, individualized health and

performance screening of pilots would probably require

norming and standardizing of cognitive tests and simulator

* While noting that “it is difficult to imagine an agency decision which

judges would be more disposed to accept than one that implicates

aviation safety,” the dissent below stated that “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.” Pet. App. A at a-39.

* Even law enforcement officers routinely administer simple tests to

suspected drunken drivers to determine cognitive and performance

ability, yet the FAA eschews individualized health and performance

monitoring of pilots of airplanes each carrying hundreds of people

thousands of feet above the ground at speeds in excess of 500 miles per

hour, in favor of an age-based Rule.

” In 1959, when the Age 60 Rule was enacted, jet aircraft were jus*

being introduced to U.S. airline fleets, see, e.g., Letter of April 30,

1959 of C.R. Smith, President, American Airlines to General Elwood

Quesada, FAA Administrator (R. 626-27), and the computer chip was

unheard of. Today, any consumer with a computer can purchase

Microsoft Flight Simulator 98 software for $49.95 and experience a

more detailed and realistic impression of actual flying than existed until

the 1980’s on the most sophisticated commercial aircraft flight

simulators. See, e.g., http://srch.outpost.com. In the same period, the

FAA has seen fit to do nothing with the Age 60 Rule.

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performance checks. Perhaps individualized determinations

would result in more administrative and even legal challenges

than are now the case under an arbitrary age cut-off of 60.

Who could blame the FAA for not wanting to enter

that thicket—except that the FAA is Statutorily charged to

monitor the safety of aviation and given the exclusive

responsibility to do so.* Inaction might be justified were not

the means at hand to plumb medical condition, assess

cognitive ability, and test performance and endurance in the

real-time, realistic conditions of the flight simulator. Most

important, individualized screening would make for a fairer

and a safer scheme and one that did not conflict with the

congressional mandate barring age discrimination.

Petitioner advocates a higher standard of review than

“arbitrary and capricious” of the FAA’s refusal to change the

Rule, because the FAA’s Rule infringes on congressional

civil rights policy as manifested in the ADEA, EEOC

regulations and Western Air Lines, Inc. v. Criswell, 472 U.S.

400 (1985) (Pet. at 22). SWAPA believes there is an

additional important reason for greater scrutiny of the FAA’s

decision.

As the expert arbiter of air safety, the FAA also

controls the means to evaluate whether Safety is affected by a

pilot’s age. In its refusal even to study pilots over age 60,

* While the National Safety Transportation Board is charged with safety

investigation of civil aviation accidents, its charter is to act with regard

to specific accidents. 49 U.S.C. §1131(a)(1). Its charter can be said to

be reactive, even though lessons learned from accidents often find their

way into Safety Recommendations to which the Secretary of

Transportation must respond. 49 U.S.C. §1135(a). On the other hand,

the FAA’s statutory charge is to “promote safe flight of civil aircraft . .

. .” [emphasis added] 49 U.S.C. §44701(a). The FAA’s 38 years’

inaction on the Age 60 Rule raises the question whether the FAA has

Carried out its statutory mandate to promote safe flight.

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the FAA has abused its power by blocking any change in the

Rule and simultaneously precluding investigation of whether

abolition or modification of the Rule is appropriate. Given

the congressional condemnation of age discrimination

embodied in the ADEA and the dual nature of the FAA’s

role, the FAA’s actions should be subjected to a higher

degree of judicial scrutiny than the deferential “arbitrary and

Capricious” standard applied by the court below.

CONCLUSION

We are not asking this Court to decide how long

commercial pilots should fly or how medical examination and

testing should occur. But we think the record contains more

than enough evidence that the FAA is simply too content to

maintain the status quo, even after 38 years, and will not act

without judicial intervention.

We do not necessarily advocate that the Court should

strike down the Age 60 Rule as violative of the ADEA.

What we do advocate is that the FAA on this record should

be subject to a higher standard of review where its Age 60

Rule violates at least the spirit of the “EA; where there is

clear evidence that the means of asse:~*»g health, cognitive

testing and simulator development have radically advanced

since 1959; and where in 38 years the FAA has done too

little even to consider whether a change is merited.

Thomas W. Osborne

Cathy Ventrell-Monsees

Melvin Radowitz

American Association of

Retired Persons

601 E Street, NW

Washington, DC 20049

(202) 434-2060

Counsel for Amicus Curiae

American Association of

Retired Persons

April 6, 1998

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Respectfully submitted,

Aidan D. Jones

(Counsel of Record)

1818 N Street NW, Ste. 700

Washington, DC 20036

(202) 293-2386

Counsel for Amicus Curiae

Southwest Airlines Pilots’

Association and The

Organization of Black

Airline Pilots, Inc.