Petition for Writ of Certiorari — Adams v. Federal Aviation Administration (No. 08-1452)

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Supreme Court, U.S.

iILEO

‘ CF gaua

(2 081452 MAY 2 0 2009

No. OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

GRANT O. ADAMS, et al.,

Petitioners,

FEDERAL AVIATION ADMINISTRATION and UNITED

STATES DEPARTMENT OF TRANSPORTATION,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the D.C. Circuit

PETITION FOR WRIT OF CERTIORARI

J ONATHAN TURLEY

Counsel of Record

ATTORNEY AT LAW

2000 H. Street, N.W.

WASHINGTON, D.C. 20052

(202) 994-7001

Attorney for Petitioners

May 20, 2009

Becker Gallagher + Cincinnau, OFf - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED FOR REVIEW

Whether a new statute can be applied to dismiss

dozens of petitions without consideration of the alleged

unconstitutionality or invalidity of the statute.

Whether 49 U.S.C. § 46110(a) strips a court of the

power to consider the unconstitutionality of a statute

before applying it.

Whether the Fairness for Experienced Pilots Act 49

U.S.C. § 44729(e)(2) implicitly removes the authority

of the Federal Aviation Administration to grant

exemptions to senior pilots to allow them to fly aircraft

without the loss of status and seniority.

Whether a court can dismiss petitions on the grounds

that new legislation bars exemptions without

addressing alternative interpretations or the

uncontested existence of dozens of post-enactment

exemptions granted other pilots.

PARTIES TO THE PROCEEDING

Petitioners are as follows:

Grant O. Adams; Jose R. Arias; Robert H. Attaway;

Stephen L. Avery; Abe R. Balderamma; Michael W.

Ballard; John W. Bernick; Terrence J. Brady; James G.

Bumford; James A. Cantrell III; Stephen R. Carignan;

Gene H. Carswell; Gary J. Casperson; Charles F.

Chapas; Jack W. Chapman; Carl C. Chappell Jr.;

Kenneth C. Ciszek; Gordon M. Cohen; Terry L.

Collette; Richard L. Collier; Dennis M. Cox; Bruce C.

Davey; Francis van Cortland De Peyster; Robert W.

Dowgialo; George V. Emory; E. Allan Englehardt;

Woodrow W. Friend Jr.; Anthony Gentile; Robert P.

Gibson; David J. Graham; Susan W. Harrison;

Christopher Hartle; Scott Hein; Charles E. Henry;

Richard A. Hinnenkamp; James D. Hodgson; Herbert

S. Holland III; Charles R. Hosmer; Timothy J.

Houghton; DeLloyd J. Jacobson; Glen J. Kane; Donald

L. Krstich; Richard F. Land; Michael J. Lierley;

Gerard D. Lionetti; JoBeth G. Lynch; Raymond Lysen;

William B. Mann Jr.; Steven B. McBride; David M.

McCord; Keith L. McCormick; James R. McGrath; Irby

R. McNerlin; James W. McStay; James Mehew; David

B. Mickle; James Monbeck; James Montalbano;

Richard C. Morgan; Errol Mullins; Charles R. Musick;

Earl H. Myers Jr.; Lloyd L. Nelson; Michael E.

Newton; Ronald Nielson; James W. Owens; Tom N.

Park Jr.; Michael J. Peet; David E. Pelham; Irwin

Pentland, Donald N. Persky; Bertil R. Peterson;

Dennis C. Pettet; Robert L. Reusche II; Robert C.

Ritchie; Paul J. Rodgers Jr.; Daniel R. Roy; Wayne G.

Savage; Harold S. Schichtel; Frank T. Schott; Lorenzo

M. Sein; Gary C. Shepard; Kenneth P. Shrum; Bradley

V. Smith; Lyle M. Speace; Dale A. Steele; Norman R.

11]

Stocker, William W. Struthers; James P. Sullivan;

James R. Sweller; Lewis J. Tetlow II]; Mark D.

Thomas; Larry I. Tubor; Akeary G. Vick; George J

Walters; Henry J. Weiland; James Woody; and Steven

P. Zandstra.

Respondents are the Federal Aviation Administration

and the United States Department of Transportation.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDING ............ |

TABLE OF AUTHORITIES .......-...0.c cers vi

CPP RETR PURE i i be ee ieee 1

OI oe owe ke hk ee Ee Lee ]

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STAT Meas WP TEAR CARE Cw. wc ecw en 4

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

I. THE D.C. CIRCUIT CONFLICTS WITH

OTHER CIRCUITS IN REQUIRING THE

APPLICATION OF A FEDERAL LAW

WITHOUT CONSIDERING CHALLENGES

TO ITS CONSTITUTIONALITY. ....... 13

Il. THE ADAMS RULE PRESENTS AN

IMPORTANT QUESTION AS _ TO

WHETHER COURTS ARE BARRED FROM

ADDRESSING THE VALIDITY OF A

STATUTE IN REVIEWING FAA

Pease... . so eae ee eo ee ae ae oe 20

WITHE D.C. CIRCUIT IGNORED

ALTERNATIVE STATUTORY

INTERPRETATIONS TO ASSUME A

PROHIBITION ON EXEMPTIONS,

DESPITE THE FAA’S ALLOWANCE OF

SUCH POST-ENACTMENT EXEMPTIONS

oR ghee go FS > 5. Sra 29

ee PReEES 255s oe eh a a eee ee ee 34

APPENDIX

Appendix A: United States Court of Appeals

for the District of Columbia Opinion for Case

07-1180

Appendix B: Sample Denial of Reconsid-

eration Letter Received by Grant O. Adams . 6a

Appendix C: Sample Denial of Petition for

Exemption Letter Received by Grant O.

PE ca ea tbe hee hes Che ae eee 9a

Appendix D: United States Court of Appeals

for the District of Columbia Order Denying En

Banc Rehearing

PL eh eel te ee 13a

TABLE OF AUTHORITIES

Cases

Adams v. F..A.A.,

550 F.3d 1174 (D.C. Cir. 2008) ......... passim

Airmark Corp. v. FAA,

706 &.20 Goo (D.C. Cir. 1986) ............. 12

Bd. of Pub. Util. Comm’rs v. Compania General De

Tabacos De Filipinas,

SRP Re yO) ) rr 23, 31

Berry v. Davis,

ee CNET? 6 ys kes as 0 eke os 23, 31

Brown v. Misstssippi,

a AOD ek oa tM eens 20

Buckhannon Bd. and Care Home, Inc. v. W. Va.

Dep’t of Health and Human Res.,

ee RC EET nk ve ko cde w reece an 32

Church of Scientology of Cal. v. United States,

Ee MD Gk sick ony vos ew De 30

Coalition of Airline Pilots Ass’ns v. FAA,

370 F.3d 1184 (D.C. Cir. 2004) ......... 17, 18

Consejo De Desarrollo Economico De Mexicali v.

United States,

482 F.3d 1157 (9th Cir. 2007) ............. 15

Continental Ill. Corp. v. Lewis,

827 F.2d 1517 (11th Cir. 1987)

Vil

Dep't of Treasury v. Galioto,

OTE Uy DOO URMOO) 6 oe kei ie enon 23, 30

Diffenderfer v. Cent. Baptist Church of Miami, Inc.,

Oe Ria She CTS) 6c cee chee eees os oe, oe

Foman v. Davis,

ee Cee Pee OE nk cron cs oa wx ek ees 26

Friends of Earth, Inc. v. Laidlaw Enotl. Serv.

(TOC), Inc.,

ee RPC Db k soos ek ee 32

Fusari v. Steinberg,

2, BER) 2 ei. 7S.) Sr 24, 31

Honda Motor Co. v. Oberg,

eee Ge EE oe kev oa 6G ka ek eee 20

In re Bunker Limited P’ship,

820 F.2d 308 (9th Cir. 1987) ......... 16

In re Oliver,

eo Bk ee Sa |, | re 20

In re Winship,

ere Gs, CP). ws vc wee eee eae wes 20

Kremens v. Bartley,

ae Whee Re CET ED 6k ks He ee ween Li. Za; oo

Lewis v. Continental Bank,

494 U.S. 472 (1990) ...... ops iG, 17, 24

Los Angeles County v. Davis,

OO ie er CRT) ok ec bicecaeeen 15

Vill

Nuclear Energy Inst., Inc. v. EPA,

373 F.3d 1251 (D.C. Cir. 2004) ..... 5 ate

Paulson v. City of San Diego,

4715 F.3d 1047 (9th Cir. 2006) ............. 16

Poweil v. McCormack,

395 U.S. 486 (1969) Goat aoe ae tet ie ee 13

Profl Pilots Fed’n v. FAA,

118 F.3d 758 (D.C. Cir. 1997) 7

Rosenstiel v. Rodriguez,

101 F.3d 1544 (8th Cir. 1996) ............. 32

Smithfield Foods, Inc. v. Miller,

367 F.3d 1061 (8th Cir. 2004) .......... 15, 32

Tumey v. Ohio,

SU ts ee EE ioe i oe eee 20

United States v. Chaikin,

O60 F 2e 372 te &. Ce. 1008) Cooks sk hee ee 20

United States v. McCants,

436 ¥ .30 557 (2).C. Cir. 2006) .......cccecnr BO

United States v. Morico,

415 F.2a 138 (3a Cir. 1969) ..... 6 osc cass 25

Yetman v. Garvey,

261 F.3d 664 (7th Cir. 2001) . 2.1.00. pees 5

Zessar v. Keith,

556 F.Sa 768 Cith Cir. 20068)... i-vccans 14, 32

Constitution, Statutes and Regulations

U.S. Const. amend

14 C.F.R.

28 U.S.C.

49 U.S.C.

49 US.C.

49 U.S.C.

49 U S.C.

49 U.S.C.

60 Fed. Reg. 65,980 (1995)

11.8]

11.8l(e) .

121.1(a)

121.1(a)(5)(1)

121.383(c) ...

1254(1)

44701(f)

44729(e)(1)

44729(e)(1)(A)

44729%(e)(2) ..

46110

46110(a)

46110(c)

46110(e)

-(B3)

. passim

Paes reoee BA

Fair Treatment for Experienced Pilots Act, Pub. L

No. 110-135, 121 Stat. 1450 (2007) .......... 8

Rules

Re, Ses De ND oi 8 9040 4 oe ee

Sup. Ct. R. 10(c) eerie se

Miscellaneous Authority

DeWayne Wickham, Rule Grounding Pilots at Age

60 Requires Overhaul, USA Today, May 15,

Me anced tance lee

http:/ /www.age60rule.com/docs/MEMORIAL%

ZODAY%2ZO0SHAME. pdf... 1. eee 10

http:/ /www.alpa.org/ DesktopModules /ALPA_Do

cuments/ALPA_DocumentsView.aspx?itemid=

11636& Moduleld=506&TubId=938 .......... 9

http:/ /www.seniorpilotscoalition.org/CALPilotBi

d09-07.pdf | | 29

http:/ /www.seniorpilotscoalition.org/CALPilotBi

PPPOE CER EC ee Se Pe rr rr ee 29

http:/ /www.sentorpilotscoalition.org/Oberstar%2

OREGPORTASOUG.BG occ cece se nesesers .. 9

Liz Feder, NWA Ptlots Oppose Oberstar on

Retirement; Northwest and its ALPA Branch

Sought to Keep it at Age 60, Star Tribune, Dec.

era iia eee a ean 9

National Press Club Luncheon Address by Federal

Aviation Administrator Marion Blakey, Fed.

News Service, January 30, 2007

Paul Beebe, Pilots’ Age Rule Change Stirs Dissent,

Salt Lake Trib., March 10, 2007 /

]

a -— — — —

PETITION FOR A WRIT OF CERTIORARI

¢ EE ~- =

Grant O. Adams and the other senior pilots

respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the District of Columbia in this case.

¢ = of

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia (App. A) is reported at 550

F.3d 1174 (D.C. Cir. 2008).

sd —

JURISDICTION

The court of appeals entered its judgment on

December 19, 2008. The Petitioners filed a timely

petition for rehearing en banc on February 1, 2009,

which was denied on February 20, 2009. (App. D) The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) as specified under 49 U.S.C. § 46110(e).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

the United States

The Fifth Amendment to

_,. be

Constitution states that “[nlo person shall be

deprived of life, liberty, or property, without due

process of law.”

The Fairness for Experienced Pilots Act 49 U.S.C.

§ 44729(e)(1):

1) NONRETROACTIVITY- No person who has

attained 60 years of age before the date of

enactment of this section may serve as a pilot

for an air carrier engaged in covered operations

unless--

(A) — such person is in the employment of that

air carrier in such operations on such

date of enactment as a required flight

deck crew member; or

(B) such person is newly hired by an air

carrier as a pilot on or after such date of

enactment without credit for prior

seniority or prior longevity for benefits or

other terms related to length of service

prior to the date of rehire under any

labor agreement or employment policies

of the air carrier.

The Fairness for Experienced Pilots Act 49 U.S.C.

§ 44729(e)(2):

(2) PROTECTION FOR COMPLIANCE- An

action taken in conformance with this section,

taken in conformance with a regulation issued

to carry out this section, or taken prior to the

date of enactment of this section in conformance

with section 121.383(c) ... may not serve as a

basis for liability or relief in a proceeding,

brought under any employment law or

regulation, before any court or agency of the

United States or of any State or locality.

The federal code at 49 U.S.C. § 46110(a) states i

pertinent part:

(a)

Filing and Venue. - Except for an order

related to a foreign air carrier subject to

disapproval by the President under

section 41307 or 41509(f) of this title, a

person disclosing a substantial interest

in an order issued by the Secretary of

Transportation (or the Under Secretary

of Transportation for Security with

respect to security duties and powers

designated to be carried out by the Under

Secretary or the Administrator of the

Federal Aviation Administration with

respect to aviation safety duties and

powers designated to be carried out by

the Administrator) under this part may

apply for review of the order by filing a

petition for review in the United States

Court of Appeals for the District of

Columbia Circuit or in the court of

appeals of the United States for the

circuit in which the person resides or has

its principal place of business. . . .

Findings of fact by the Secretary, Under

Secretary, or Administrator, if supported

by substantial evidence, are conclusive.

1M)

STATEMENT OCF THE CASE

The instant case was filed directly with the

appellate court, pursuant to 49 U.S.C. § 46110(a),

challenging the orders of the Federal Aviation

Administration (FAA) after it denied exemptions from

the “Age 60 Rule.” Under 14 C.F .R. § 121.383(c), pilots

were barred from operating certain commercial]

aircraft after their 60" birthday.

For years, the senior pilots in this case have sought

judicial review and relief before both the district court

and appellate court to protect their livelihoods from

discriminatory and arbitrary actions by the FAA. They

began this odyssey by challenging the Age 60 Rule

before the United States District Court for the District

of Columbia in 2007.’ After lengthy briefing and

hearings on the filing, the District Court Judge John

Bates strongly encouraged the Petitioners to re-file

with the appellate court challenging the FAA orders

with the United States Court of Appeals for the

District of Columbia. After years of appellate

litigation, however, the panel directed the Petitioners

back to the district court for a new filing. There was

no reasoned basis offered by the D.C. Circuit, which

refused to address the legal and factual challenges

raised by the Petitioners to the use of a new law to

dismiss the case. Thus, these pilots have been denied

any substantive explanation by two branches of

' This action, Tetlow v. Blakely {sic}, Case No. 1:07-cv-00602

(JDB), was voluntarily withdrawn without prejudice and the

pilots proceeded with the petition appeal with new counsel.

government for the denial of their status, salaries, and

seniority based on their age.

The instant case originated with Petitions fer

Review by senior pilots who challenged orders from the

FAA denying exemptions from the Age 60 Rule

without any consideration of their abilities, health, or

experience. Since 1959, the FAA has barred pilots from

flying commercial aircraft based solely on age. The

FAA promulgated the Age 60 Rule, barring any pilot

who “has reached his 60th birthday.” 14 C.F.R.

§ 121.383(c) (2008).? Powever, pilots are allowed an

exemption if they can show “why granting the

exemption would not adversely affect safety” or how it

would “provide a level of safety equal to that provided

by the rule from which you seek the exemption.” 14

C.F.R. § 11.81(e) (2008). For many years, the FAA

carried out the plain meaning of the exemption

standard and issued individual exemptions based on

showings that pilots are not a danger to air safety due

to their age. It also allowed commuter pilots over the

age 60 to fly. See Yetman v. Garvey, 261 F.3d 664, 668

(7th Cir. 2001). However, in 1995, the FAA suddenly

announced a categorical rejection of exemptions. See

60 Fed. Reg. 65,980 (1995).

The Age 60 Rule put the United States in direct

conflict with international standards and agreements,

including standards of the International Civil Aviation

* The rule stated in full: “No certificate holder may use the

services of any person as a pilot on an airplane engaged in

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

birthday. No person may serve as a pilot on an airplane engaged

in operations under this part if that person has reached his 60th

birthday.” 14 C.F.R. § 121.383(c).

Organization’s (ICAO), which uses 65 as the age limit

for air carrier pilots-in-command. This international

standard became effective on November 23, 2006, and

created a bizarre anomaly. A pilot in the United

States, therefore, could be fired by an airline under the

Age 60 Rule and immediately fly into the same airport

as a pilot aboard a foreign carrier.

There has been no research establishing a basis for

the Age 60 Rule or explaining how terminating pilots

at age 60 serves the interest of air safety. To the

contrary, in a November 26, 2006 letter, the Equal

Employment Opportunity Commission (EEOC)

notified the FAA that it had concluded over two

decades earlier that age was not a bona fide

occupational qualification (BFOQ) for pilots. Letter of

Naomi C. Earp, Chair, EEOC, to the FAA, November

15, 2006 (finding that “[t}he Age 60 Rule runs counter

to the narrow scope of the BFOQ defense and the fact-

specific, case-by-case analysis it requires.”). Moreover,

the FAA itself admitted that the rule was archaic and

unnecessary. On January 30, 2007, the FAA

administrator Marion Blakey spoke on the lack of

support for the Age 60 Rule at the National Press

Club:

It’s time to close the book on Age 60. The

retirement age for airline pilots needs to be

raised. So, the FAA will propose a new rule — to

allow pilots to fly until they are 65....

When airlines back in the day [the 1950s] were

forcing pilots to retire, the union took legal

action. Arbitrators ruled for the pilots each

time. .. . American Airlines prevailed on the

FAA for a rule. ... The man in charge at

American, C.R. Smith, wrote to Pete Quesada,

the administrator at the time. . . . Less than

four months later, the Federal Aviation

Administration issued a proposed rule. . .

When you're 60, your career as an airline pilot

would be over.

It’s now a different day and age. The issues of

experience, harmonization — and let’s face it —

equity — all have to be considered.

See National Press Club Luncheon Address by Federal

Aviation Administrator Marion Blakey, Fed. News

Service, January 30, 2007; see also Paul Beebe, Pilots’

Age Rule Change Stirs Dissent, Salt Lake Trib., March

10, 2007, at 5. Despite such frank admissions, the FAA

continued to fight efforts to challenge the Age 60 Rule

and continued to deny exemptions to the rule for

individual pilots. See, e.g., Profl Pilots Fed’n v. FAA,

118 F.3d 758 (D.C. Cir. 1997).

Petitioners filed dozens of identical petitions

seeking relief from FAA orders over the course of two

years.” Petitioners maintain that these orders violate

the United States Constitution and various federal

statutes.

°On June 1, 2007 (No. 07-1180), a petition for dozens of pilots was

filed. This petition was followed by identical claims on June 8,

2007 (No. 07-1194), June 22, 2007 (No. 07-1126), August 16, 2007

(No. 07-1326), September 14, 2007 (No. 07-1366), October 1, 2007

(No. 07-1390), November 2, 2007 (No. 07-1447), December 14,

2007 (No. 07-1507), December 19, 2007(07-1524), and January 22,

2008 (08-1023). All ten petitions have been consolidated by order

of the court.

During the pendency of this litigation, Congress

passed the Fair Treatment for Experienced Pilots Act,

Pub. L. No. 110-135, 121 Stat. 1450 (2007) (hereinafter

“the Act”), which President Bush signed on December

13, 2007. With this law, the FAA now accepts that the

government has made a “safety determination that,

generally speaking. pilots can serve up to age 65 in

part 121 operations.” Joint Pet. Br. Addendum C

(Question #8) (March 13, 2008 FAA statement). The

petitioners were issued identical letters of denial of

reconsideration by the FAA that stated that the agency

interpreted the Act as barring any consideration of

exemptions for senior pilots. (App. B).

Despite its ironic title, the Fair Treatment for

Experienced Pilots Act was enacted specifically to bar

experienced pilots from being able to either fly or

contest the denial of their seniority and benefits. The

most experienced pilots are penalized on the sole basis

of their age regardless of their individual capabilities,

health, or experience. The new Age 60 Rule was

inserted after a lobbying effort by the Air Line Pilots

Association (ALPA), which first opposed the

elimination of the Age 60 Rule and then secured

provisions that penalized senior pilots who sought

continued employment.’ Under the Act, a pilot “who

* Part 121 carriers were defined as those operating commercial

aircrafts with a seating capacity of more than 30 passengers. See

14 C.F.R. § 121.1(a)(5)Gii) (1995). Part 121 was amended in 1995,

and certificate holders subject to Part 121 are now addressed in

14 C.F.R. § 121.1(a)

° See DeWayne Wickham, Rule Grounding Pilots at Age 60

Requires Overhaul, USA Today, May 15, 2007, at 11A (“In the

case of the Age 60 Rule, the political muscle is being applied by

has attained 60 years of age before the date of

enactment” can only be rehired if the airline wipes out

the pilot’s prior seniority, status, and benefits. 49

U.S.C. § 44729(e)(1)(A)-(B). Thus, even if such a pilot

has decades of experience and seniority, the only way

that he or she can return to active status must be as a

new hire absent an exemption. This not only results in

a considerable loss of pay that can exceed hundreds of

thousands of dollars per pilot, but practically denies

the most experienced pilots access to large jets, or even

an opportunity to fly at all.

The language was an open concession to the ALPA

union, which drafted the provision and publicly

claimed victory in having Rep. James Oberstar,

Chairman of the House Transportation Committee to

insert it into the legislation.° Congress did not

articulate a public policy basis for negating years of

seniority and benefits in favor of younger pilots. To

the Air Line Pilots Association, an organization that represents

more than 64,000 commercial pilots. A majority of ALPA’s

members oppose the rule change, which would make it harder for

younger pilots to get the positions and favorable routes now held

by more senior pilots.”); see also Liz Feder, NWA Pilots Oppose

Oberstar on Retirement; Northwest and its ALPA Branch Sought

to Keep it at Age 60, Star Tribune, Dec. 12, 2007, at 1. The same

organizations supported this legisiation. See

http:/ /www.alpa.org /DesktopModules /ALPA_Documents /ALP

A_DocumentsView.aspx?itemid=11636& Moduleld=506& Tabld=93

(statement of ALPA president).

In its public statements, ALPA heralded Transportation

Committee Chairman Oberstar as “ALPA’s man” and credited

itself for the drafting and enactment of the language. J.A. at 268.

See http://www.sentorptlotscoalition.org /Oberstar%20March%

2008. pdf.

make matters more arbitrary, it is also uncontested

that the FAA has allowed as many as two dozen pilots

who reached 60 years before the enactment date to

keep their seniority and benefits with Continental

Airlines and possibly other airlines.’

On November 14, 2008, under an agreement with

the government, the Petitioners’ filed a new joint

petition with an unopposed motion to consolidate the

petitions. On December 19, 2008, the panel held that,

regardless of the claimed facial invalidity of a statute,

the court was required to apply the statute without

review of such invalidity. (App. A) The opinion written

by Judge Janice Rogers Brown notably did not address

where in the statute Congress mandated that no

petitions or exemptions would be allowed by the FAA.

Nor did it address the fact that pilots who turned 60

before the enactment date were allowed exemptions

from the law. ‘The panel merely stated conclusorily

that “[t]he Act, which expressly abrogates the Age 60

Rule, moots the petitions for review of the orders

denying exemption from the Age 60 Rule.” The

entirety of basis for the holding was this single line —

which dismissed dozens of petitions (pending for years)

seeking to redress the loss of lifelong benefits and

status. The panel stated without explanation that any

“initial review” of the unconstitutionality or invalidity

‘ A typical case involves Petitioner Herb Holland, a decorated

Marine pilot from Vietnam, who was one of the most experienced

pilots at US Airways. See http:/ /www.age60rule.com/docs/!MEM

ORIAL%20DAY%20SHAME. pdf. Holland missed the statutory

date under the 2007 law by forty-three days. He lost his job, his

benefits, and his status as a senior pilot. He is now living much

of each month in Kazakhstan, where he is a pilot for Air Astana,

away trom his family living in the United States

of the statute is expressly barred under 49 U.S.C.

§ 46110(a). Adams, 550 F.3d at 1176 (emphasis in

original). On February 20, 2009, the United States

Court of Appeals denied a petition for rehearing en

banc. (App. D) This petition for a writ of certiorari

followed.

REASONS FOR GRANTING THE WRIT

The instant case presents a fundamental question:

whether a court must refuse to consider the alleged

unconstitutionality or invalidity of a statute used to

dismiss dozens of pending individual petitions. The

decision of the D.C. Circuit contradicts other circuits,

which have reviewed the claims of invalidity of new

laws before applying them to a given case. No other

circuit has adopted the blanket rule that, regardless of

any claim of invalidity or unconstitutionality, a statute

must be applied to dismiss petitions without review

under 49 U.S.C. § 46110(a).

The opinion in Adams imposes a sweeping and

illogical rule for petitioners seeking review of agency

orders and potentially for a much broader array of

litigants. Under this rule, a law can be applied

regardless of whether it directly contradicts the United

States Constitution or prior rulings of this Court. The

new rule conflicts with this Court’s narrowly tailored

rule in Kremens v. Bartley, 431 U.S. 119 (1977), where

the Court mandated dismissal when relief has already

been granted in the form of a legislative correction.

Not only does this statute extinguish (rather than

grant) relief, but the mootness rule was not intended

to bar federal courts from reviewing facially

unconstitutional elements of a law. The D.C. Circuit

suggests that a federal court has basically the same

status as an agency where it must apply a federal

statute without question or review. It cites the

jurisdictional grant of 49 U.S.C. § 46110(a), but does

not cite any language to support such a sweeping new

rule. This provision, however, mandates a degree of

deference to the agency (“supported by substantial

evidence”) on factual, not legal, issues related to the

denial of petitions. A _ statutory interpretation

stripping a court of the ability to review the validity of

a statute is a radical departure from accepted rules of

statutory construction.

The Fair Treatment for Experienced Pilots Act did

not do away with the Age 60 Rule as much as it

modified the rule. The modified Age 60 Rule does not

change the fact that (absent an exemption) these pilots

were denied their earned status, seniority, and

salaries. Under the old rule, pilots who turned 60

were terminated from their positions and barred from

flying the covered aircraft. Under the modified Age 60

Rule, the prior termination of pilots under the original

rule is sustained and those pilots still lose their

benefits and status. Absent an exemption, they are

allowed to be rehired only as new pilots and there is no

guarantee of rehire. Indeed, no petitioning pilots have

been rehired under these conditions. The FAA still

discriminates on the basis of age and, as shown with

regard to dozens of Continental pilots granted

exemptions, the FAA is still making exemptions under

the rule. J.A. at 265. The lack of consistent application

of this rule and the congressional rejection of the very

basis for the denial of the petitions should be ample

grounds to vacate the FAA orders. See Airmark Corp.

v. FAA, 758 F.2d 685, 692 (D.C. Cir. 1985)

(“Elementary even-handedness requires that if all five

factors must be met by one petitioner, then all five

factors must be met by the next.”).

The D.C. Circuit decision creates’ an

unchallengeable power of the government to dismiss

petitions without review and creates a new

interpretation of provisions like 49 U.S.C.

§ 46110(a) for future cases. It denies Petitioners the

most basic protections of due process: to have their

claims resolved under valid and enforceable federal

law.

I. THE D.C. CIRCUIT CONFLICTS WITH

OTHER CIRCUITS IN REQUIRING THE

APPLICATION OF A FEDERAL LAW

WITHOUT CONSIDERING CHALLENGES

TO ITS CONSTITUTIONALITY.

The Adams rule creates a conflict between the

circuits on the role of a federal court in applying a new

statute as the basis for dismissal on the grounds of

mootness. See Sup. Ct. R. 10(a). The D.C. Circuit’s

rule maintains that a law like the Fair Treatment for

Experienced Pilots Act can only be applied, not

reviewed, by a federal court. It is a position that

contradicts the most basic precepts of judicial review:

a valid disposition of a case can only occur on the basis

of valid binding legal rules. The court misapplied a

basic principle of this Court that “a case is moot when

the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.”

Powell v. McCormack, 395 U.S. 486, 496 (1969).

However, when the reason for an alleged nullification

of a claim is a statute, it is axiomatic that the burden

rests with the moving party to establish that the

statute is both valid and enforceable.

While the enactment of a new statute in the middle

of a petition appeal is rare,” courts routinely deal with

new legislation in various areas. Other circuits have

not followed such a rule requiring the blind and

unquestioned application of a statute. For example, in

Zessar v. Keith, 536 F.3d 788 (7th Cir. 2008), the

plaintiffs challenged an election law that allowed the

rejection of absentee ballots on unconstitutional

grounds. After the district court feund that the

statute was unconstitutional, the legislature passed a

new statute changing the election code. Rather than

adopting the type of rule in Adams, the district court

reviewed the constitutionality of the new legislation -

ultimately denying a motion challenging the statute as

unconstitutional. The Seventh Circuit also reviewed

the application of the statute to the case. Having

found that “the amended Code is not substantially

similar to the challenged provisions of the pre-

amendment Code,” the Seventh Circuit dismissed that

portion of the case that concerned criteria that were no

longer applicable to the plaintiffs.* In comparison, the

only substantive element changed under the Fair

Treatment for Experienced Pilots Act was the

theoretical possibility that the Petitioners could fly

* Indeed, Petitioners cannot find other cases with the identical

case profile. However, it is the position of the Petitioners that a

court's authority in addressing such challenges to new statutes is

the same in petition and non-petition appeals

” Notably, the Court could not reach the constitutionality of the

later enactment because it was not part of the appeal with the

case continuing on the district court. Zessar, 536 F.3d at. 793

even though the record is clear that the ALPA

language practically guaranteed that no senior pilot

would fly unless, after being rehired, the pilot was

stripped of seniority and processed as a new pilot. ‘The

loss of status, seniority, and salaries remained the

same before and after the modified Age 60 Rule. Cf.

Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)

(“|JJurisdiction, properly acquired, may abate if the

case becomes moot because .. . interim relief or events

have completely and irrevocably eradicated the effects

of the alleged violation.”).

The Eighth Circuit also addresses’ the

constitutionality of new legislation before using such

legislation as the basis to dismiss an action. In

Smithfield Foods, Inc. v. Miller, 367 F.3d 1061, 1066

(8th Cir. 2004), the Iowa legislature amended the

challenged law during the appeal. The Eighth Circuit

ruled that the constitutionality of the new legislation

would have to be established by the lower court and

the claims could not be simply dismissed due to the

amendment. Smithfield Foods, Inc., 367 F.3d at 1066.

The Ninth Circuit also requires that a law be valid

before allowing it to be used to dismiss an action.

When such a law is introduced, the Ninth Circuit

follows the rule that “/i/f legislation passing

constitutional muster is enacted while a case is

pending on appeal that makes it impossible for the

court to grant any effectual relief, the appeal must be

dismissed as moot.” Consejo De Desarrollo Economico

De Mexicali v. United States, 482 F.3d 1157, 1168 (9th

Cir. 2007) (emphasis added); see also Paulson v. City of

San Diego, 475 F.3d 1047, 1048 (9th Cir. 2006).*°

Likewise, the Eleventh Circuit considers

constitutional challenges to a statute used to dismiss

an action. In Continental Ill. Corp. v. Lewis, 827 F.2d

1517 (11th Cir. 1987), vacated in Lewis v. Continental

Bank, 494 U.S. 472 (1990), the Eleventh Circuit

addressed a case where the state passed a law during

the pendency of the litigation to rectify a flaw in its

banking laws. Despite the new law, the district court

refused to dismiss the case as moot, noting that the

new statute would not only have to be constitutional

but make the violations incapable of repetition. Lewis,

494 U.S. 475-76. The Eleventh Circuit affirmed,

“resting its determination that the case was not moot

on the different ground that the supervening ban on

new ISBs was unconstitutional.” Jd. at 476. Even after

Congress intervened during the appellate litigation

with a change in the Bank Holding Company Act of

1956, the Eleventh Circuit refused to reconsider its

'° The government’s past reliance on the decision in Jn re Bunker

Ltd. P’ship, 820 F.2d 308, 311 (9th Cir. 1987), is equally

unavailing for the government. The Ninth Circuit did not ruie in

favor of the argument advanced by the Respondents. Rather, a

claim was made for access to mining sites — a claim that was

mooted when Congress expressly amended federal law to allow for

such access. Both parties agreed that the statute made the specific

matter moot (regarding the need for an initial agency

determination). Jd. at 311. There was no challenge to the

constitutionality, validity, or materiality of the statute.

ruling, finding that the matter had to be fully

addressed by the district court.”

In adopting a new sweeping rule, the lower court

radically expanded its prior ruling in Coalition of

Airline Pilots Ass’ns v. FAA, 370 F.3d 1184 (D.C. Cir.

2004). In that case, Congress legislatively corrected

the due process problem that was the basis of the

lawsuit and the Court found that it was a problem that

would not be repeated. The lack of procedural rights

in a_ regulation was challenged by various

organizations. Congress, however, acted to supply the

procedural protections. The Court found that

Congress had “completely eradicated the effect of the

alleged due process violations.” /d. at 1190; see also id.

at 1190-91 (“To begin with, the alleged constitutional

violations are unlikely to recur . . . Congress has

wholly cured the problem.”).’” The lower court missed

the obvious distinction between the Coalition of Airline

'! While vacating the decision, the Supreme Court also declined to

dismiss the case to allow the new statute to be fully addressed

below. Lewis, 494 U.S. at 482.

2 In dicta, referencing an ambiguous statement in oral

arguments, the Court noted that “to the extent the Coalition is

attacking [the statute], and not the rules themselves, we lack

jurisdiction to consider such aclaim.” Jd. at 1191. The reason for

this conclusion appeared in the preceding line: “Emptied of legal

effect, the challenged rules can neither chill protected speech nor

punish certificate holders based on unclear standards of

suspicion.” Jd. With the rules nullified, any challenge to the

statute would be akin to a declaratory judgment that is normally

addressed on the trial level.

Pilots Ass’ns and the instant case.’? Here, the age-

based rules have not been nullified but codified. The

government is seeking to dismiss the claims of the

Petitioners based on the statute without addressing

the underlying njuries. Moreover, the organization in

Coalition of Atrline Pilots Ass’ns implied that it would

still like to challenge the statute’s language on flaws

unrelated to the original claims. However, they could

just as well secure such relief before a trial court since

its members were not subject to the prior denial of

procedural due process. The Petitioners in this case

could not secure the same relief. The government has

maintained that it cannot act on the petitions because

the statute nullified both the Age 60 Rule and the

process for review. If dismissed, the pilots could

challenge the new law, but the government would

clearly assert that reinstatement of prior salaries or

status could not be sought as relief. Unlike a general

statutory challenge by organizations, the statute in

this case is the specific cause for the alleged invalidity

of their claims.

'S Likewise, this is not a circumstance “[w}here Congress enacts

intervening legislation that definitively resolves the issues a

litigant seeks to put before us, the claims are moot and we are

precluded from deciding them.” Nuclear Energy Inst., Inc. v. EPA,

373 F.3d 1251, 1309 (D.C. Cir. 2004). Nuclear Energy Inst. , relied

upon by the government, dealt with a challenge to the selection of

a nuclear repository site in Nevada. Once Congress selected the

site by statute, the process for selecting the site was no longer

relevant because a congressional decision had been made. In

Nuclear Energy Inst., the Court clearly concluded that the

resolution was a proper congressional determination of a nuclear

site. Nevertheless, the Court explored the authority and intent

behind the resolution: the very step that the government seeks to

avoid in this case.

The lower court does not cite a single circuit where

courts follow a rule that a new statute can be applied

to dismiss an action but not reviewed for its validity.

Under the government’s approach, Congress could

pass wildly unconstitutional bills based on racial,

religious, or gender discrimination that would

extinguish cases without recourse for the litigants. If

the Congress passed a law that modified the Age 60

Rule to allow only older white pilots to fly, it would be

absurd to apply such a facially unconstitutional law

without addressing the challenges raised by the

petitioners.

As discussed below, it is of no import that this law

became an issue in a petition review filed directly with

the appellate court. It is true that such petitions

would not be the appropriate means for litigants to

challenge a federal statute as part of its original claim.

In this case, however, the statute is being used to

dismiss the petitions. It was the government that put

the validity of the Act at issue on the appellate level by

claiming it as a dispositive source requiring dismissal

of all of the consolidated cases. In doing so, the FAA

picked this petition process to address the statutory

claim and challenge. There must be some judicial

review beyond a superficial determination of subject-

matter relevance of a statute. While a court may

reserve broader challenges to a statute that are not

relevant to the statute’s application in a given petition

case, it must address those claims of

unconstitutionality that would make the law

inapplicable or invalid as a determinative source for

dismissal.

H. THE ADAMS RULE PRESENTS AN

IMPORTANT QUESTION AS TO

WHETHER COURTS ARE BARRED FROM

ADDRESSING THE VALIDITY OF A

STATUTE IN REVIEWING FAA

PETITIONS.

The new rule regarding FAA petitions denies the

most basic component of due process: the consideration

of challenges to the applicability of a statute before the

denial of relief in the federal courts. See Sup. Ct. R.

10(c). “This Court has not hesitated to find the

proceedings violative of due process” when litigants

are denied basic standards of review. Honda Motor

Co. v. Oberg, 512 U.S. 415, 430 (1994) (citing T'umey v.

Ohio, 273 U.S. 510 (1927); Brown v. Mississippi, 297

U.S. 278 (1936); In re Oliver, 333 U.S. 257 (1948); In re

Winship, 397 U.S. 358, 361 (1970)). In these petition

cases, the court of appeals is the original court of

review and must address factual inconsistencies and

legal challenges raised by the petitioners. The D.C.

Circuit has insisted on such complete records from

district courts. See United States v. McCants, 434 F.3d

557, 562-563 (D.C. Cir. 2006) (citing United States v.

Chaikin, 960 F.2d 171, 175 (D.C. Cir. 1992)).

There is no difference between petition cases and

non-petition cases when the government seeks to apply

a statute as a determinative legal source. The

opposing party has a right to contest the applicability

and validity of the statute. The lower court cites 49

U.S.C. § 46110(a) without explanation as to the

limitation on its consideration of the invalidity of the

statute. The interpretation of this provision would

affect a great array of such petitions. See Sup. Ct. R.

10(c). Yet, nothing in that provision robs a federal

court of the most basic authority and responsibility to

apply only valid and enforceable laws. Indeed, such a

provision would raise serious constitutional questions

in its own right by forcing federal courts to apply

facially unconstitutional statutes. While the lower

court did not rely on 49 U.S.C. § 46110(c), that

provision on the “authority of the court” also lacks

such a limitation. It simply states that

When the petition is sent to the Secretary,

Under Secretary, or Administrator, the court

has exclusive jurisdiction to affirm, amend,

riodify, or sect aside any part of the order and

may order the Secretary, Under Secretary, or

Administrator to conduct further proceedings.

After reasonable notice to the Secretary, Under

Secretary, or Administrator, the court may

grant interim relief by staying the order or

taking other appropriate action when good

cause for its action exists. Findings of fact by

the Secretary, Under Secretary, or

Administrator, if supported by substantial

evidence, are conclusive.

The Petitioners were not asking for the statute to be

struck down in a pseudo-declaratory judgment action.

They were seeking to prevent the application of the

statute to their cases due to its invalidity and to

require further proceedings. The language of

49 U.S.C. § 46110 affirms the broad authority of a

court in reviewing and taking appropriate action. The

express limitation on the review concerns setting aside

findings of fact, not law.

‘The lower court states without explanation that it

is beyond the jurisdictional grant of 49 US.C.

§ 46110(a) for the court to give “initial review” of a new

statute in a petition case. Adams, 550 F.3d at 1176

(emphasis in the original). This rule, however, would

have federal] courts blindly applying a statute until 2

district court addresses it in an initial review, even

when (as here) the panel expressed skepticism in oral

argument over the constitutionality. More

importantly, the rule would severely penalize any

petitioners who happened to have appeals that

preceded any such initial review before a district court.

Petitioners only have a short period in which to appeal

these orders while such a challenge could take years in

the district court. If they happen to have their

livelihoods terminated in an order before an initial

challenge (and resolution) on the district court level,

they are simply treated as dismissed without recourse.

Since factual deference is expressly required, the

main function of a federal court is to determine if an

agency has exceeded, or failed to follow, the dictates of

federal law. Just as a court must determine if an

agency has correctly interpreted a federal law that is

cited as the basis for an order, it must also review a

statute being relied upon for the dismissal of a

challenge to such an order. In this case, the sole

reason for the denial of reconsideration was a legal

interpretation of the validity and meaning of the new

statute. (App. B). By refusing to address the alleged

invalidity of that law, the D.C. Circuit denied any

meaningful review to these pilots. Under such an

approach, citizens can be denied their property or

livelihood without any judicial review to establish that

an agency is not misconstruing, misrepresenting or

manipulating federal law.

When considering new legislation outside of such

appeals from agency orders, this Court has never

adopted a rule that courts are prevented from

considering facial challenges to statutes used as the

basis for a dismissal of petitions or claims. To the

contrary, past mootness cases show that the

underlying statutes must be determined to be valid

(unless the petitioners did not challenge the validity of

the statute). See, e.g., Dep’t of Treasury v. Galioto, 477

U.S. 556, 559-60 (1986), Kremens v. Bartley, 431 U.S.

119, 128-30 (1977); Bd. of Pub. Util. Comm’rs v.

Compania General De Tabacos De Filipinas, 249 U.S.

425, 426 (1919), Berry v. Davis, 242 U.S. 468, 470

(1917). Indeed, this Court has expressly declined to

dismiss cases on the basis of new statutes that may be

subject to challenge — even when the parties have not.

raised such a challenge (unlike the instant case). In

Diffenderfer v. Cent. Baptist Church of Miami, Inc.,

404 U.S. 412 (1972) (per curiam), the plaintiffs

challenged a Florida statute that exempted certain

church commercial property from taxation. After the

law was challenged under the religion clauses, the

state legislature changed the law to only exempt

property used primarily for religious purposes. The

Court felt that dismissal on the basis of an untested

statute would be unwarranted:

Because it is possible that appellants may wish

to amend their complaint so as to demonstrate

that the repealed statute retains some

continuing force or to attack the newly enacted

legislation, rather than remanding the case to

the District Court for dismissal as is our usual

practice when a case has become moot pending

a decision by this Court, ... we vacate the

judgment of the District Court and remand the

case to the District Court with leave to the

appellants to amend their pleadings.

Diffenderfer, 404 U.S. at 415. In Diffenderfer, the

Court would have presumably ruled on a

constitutional challenge of invalidity if it had been

briefed and resolved by the lower court.'* In the

instant case, the Petitioners fully briefed the alleged

constitutional infirmities of the new Act, but the lower

court held that only dismissal was appropriate without

consideration of such challenges.

When the government introduced the new Act as

the basis for dismissal, it made the validity and

applicability of that statute part of the case. Cf,

Fusari v. Steinberg, 419 U.S. 379, 389 n.13 (1975)

(concluding that dismissal was inappropriate and that

the lower court should have looked closely at the new

statute which became part of the “whole case” by its

invocation). Just as the government had to defend the

legality of the original Age 60 Rule and related

regulations, it now has an obligation to establish the

'* Notably, even when the Court has found that new legislation

mooted an original claim, it has previously declined to dismiss the

entirety of a case when the basis is a new and unchallenged

statute. In Lewis v. Continental Bank, 494 U.S. 472, 482 (1990),

the Court voted unanimously to send a case back to the lower

court to allow for a full consideration of a new statute that mooted

the original claim. Justice Scalia noted that “in instances where

the mootness is attributable to a change in the legal framework

governing the case, and where the plaintiff may have some

residual claim under the new framework that was understandably

not asserted previously, our practice is to vacate the judgment and

remand for further proceedings in which the parties may, if

necessary, amend their pleadings or develop the record more

fully.” Jd.

validity of the modified Age 60 Rule and the law

invoked to extinguish these petitions. Otherwise, as

noted above, Congress could enact the most facially

unconstitutional laws based on race, religion, gender

or age discrimination with the assurance that the

discriminatory laws will be applied without review by

federal courts.

These pilots have lost decades of earned benefits

and status based on age-based discrimination that the

Congress has declared to be without foundation. The

government then allowed exemptions for dozens of

pilots while barring such exemptions for other pilots.

The D.C. Circuit declined to address the factual and

legal challenges raised by the Petitioners. Cf. United

States v. Morico, 415 F.2d 138, 141 (2d Cir. 1969)

(review “must be meaningful in the sense that it must

encompass a record from which a court can determine

whether there was a basis in fact for decision, what

that basis was and whether the board applied the

correct legal standard.”). The rule in Adams conflicts

with the rulings of this Court and undermines the

integrity and credibility of the federal system as a

whole.

Il. THE D.C. CIRCUIT IGNORED

ALTERNATIVE STATUTORY

INTERPRETATIONS TO ASSUME A

PROHIBITION ON EXEMPTIONS,

DESPITE THE FAA’S ALLOWANCE OF

SUCH POST-ENACTMENT

EXEMPTIONS FOR OTHER PILOTS.

The statute is silent on the issue of exemptions.

The lower court simply stated conclusorily that “[t}he

Act, which expressly abrogates the Age 60 Rule, moots

the petitions for review of the orders denying

exemption from the Age 60 Rule.” Adams, 550 F.3d at

1176. Yet, the first statement that the Act abrogates

the old rule does not necessarily support the second

conclusion that it moots the exemption process. In

dismissing the petitions, the court ignores any other

possible interpretation of the statute and the fact that

the government’s interpretation is contradicted by its

own allowance of exemption for pilots after the

enactment of the new Act. Because the panel offers

only a conclusory line in its holding, and declines to

give any justifying reason as part of a reconsideration

of the decision, the litigants are left without any

indication of whether the Court considered this issue

or any information on the basis for the decision.’

There was no express statutory authority for the

prior Age 60 Rule exemption process. Rather, these

exemptions fall under a standard regulatory process

under 49 U.S.C. § 46110(a). The federal code states at

49 U.S.C. § 44701(f): “The Administrator may grant

an exemption from a requirement of a regulation

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

any of sections 44702-44716 of this title [49 USCS

§§ 44702-44716] if the Administrator finds the

exemption is in the public interest.” See also 14 C.F.R.

§ 11.81 (exemption requirements under which pilots

show “the exemption would not adversely affect safety,

'° This Court has rejected the notion of deference to lower courts

that have declined such explanations in other areas. C/, Forman

v. Davis, 371 U.S. 178, 182 (1962) (rejecting deference when a

district court refuses to give “any justifying reason” on barring the

amendment of a complaint and finding the act to be “abuse of that

discretion and inconsistent with the spirit of the Federal Rules.”).

The same minimal standard should apply to the Petitioners.

or how the exemption would provide a level of safety at

least equal to that provided by the rule from which you

seek the exemption.”), The FAA c enied these petitions

on one ground only: it would not consider individual

qualifications of pilots and would enforce a categorical

age-based denial of petitions. In each letter, the FAA

explained that:

The FAA recognizes that those persons

approaching age 60 are, in general, experienced

pilots. Thus, a general expansion of the current

age limit may be appropriate. That proposal

will be subject to public notice and comment, as

required by the Administrative Procedure Act.

However, the FAA has not yet changed the rule,

and there is still an age limit of 60 for pilots

serving in part 121 operations.

(App. C at lla) The sole basis for the initial denial

was clearly stated as the fact that “there is still an age

limit of 60” and the refusal of the FAA to consider any

exemptions. In its later denial of reconsideration, the

FAA based its denial entirely on the new statute —

making the statutory interpretation of the Act critical

to this appeal. The continued applicability of such

rules and the interpretation of the statute is a matter

of law subject to de novo review by the reviewing court.

The new law prohibited the denial of flying

privileges on the basis of the old Age 60 Rule. It did

not prohibit the FAA from continuing its prior

regulatory practice of exemptions to allow pilots to fly

without penalties due to age. Indeed, there is no

legislative history on this provision which was put in

verbatim by Chairman Oberstar after a demand by

ALPA."” Under 49 U.S.C. § 44729(e)(1), the age-

related denial of status and benefits is barred

pursuant to claims “under any labor agreement or

employment policies of the air carrier.” This does not

necessarily bar the retention of status and benefits

pursuant to an exemption allowed by the FAA. Given

the FAA’s allowance of dozens of exemptions since the

enactment, an alternative reading of this provision is

that Congress sought to protect airlines against

lawsuits by negating past contracts. Airlines were

clearly concerned about their liability and

responsibilities for pilots who were previously

terminated on the basis of age. When allowed to

continue to fly with full seniority and status on the

basis of an FAA order, the law could still be claimed to

protect airlines from pre-existing contractual

agreements. Thus, the FAA could allow (as it has done

with dozens of other pilots) the Petitioners to retain

their status and seniority to permit them to continuc

to fly aircrafts while offering some protection to

airlines regarding prior contracts.

The government never denied that dozens of pilots

have been allowed to continue with airlines with their

'’ In the final stage of briefing below, the government simply

theorized that one such possible unstateu rationale is that

Congress wanted to protect against “disharmony in the

workplace” by negating the status and salaries of senior vilots.

(Gov’t Br. at 42.) Obviously, the complete denial of prior status

and salaries would not create or preserve “harmony” but would

produce inevitable discord in the workplace. Such “harmony” is

achieved by terminating all those deemed unharmonious by ALPA

senior pilots who turned 60 before the enactment date. This

disharmony is magnified by the issuance of exemptions to the new

Age 60 Rule for dozens of pilots while denying such exemptions to

other similarly situated pilots

seniority and salaries unchanged despite the fact that

they turned 60 before enactment. These exempted

pilots are allowed to continue to fly with their prior

status and salaries unchanged — as under the original

exemption process. Petitioners confirmed that at least

26 pilots over the age of 60 years have been allowed to

continue as pilots with their prior benefits at

Continental Airlines.'’ Obviously, some exemption

process remains for dozens of pilots who have been

allowed by the FAA to continue in their livelihoods

while Petitioners are denied the same exemptions.”

Notably, the FAA’s position with regard to the

Continental pilots is consistent with the advisory

opinion issued by the FAA on the proper interpretation

of the modified Age 60 Rule. On March 13, 2008, the

FAA addressed the status of various pilots who turned

60 before the enactment date but were performing

flight checks on aircrafts rather than flying the planes.

While the FAA believes that these pilots were

“required flight crewmembers” and indistinguishable

from other pilots, it said that airline companies, not

the FAA, would make such decisions on “economic

issues” such as continued benefits and seniority.” See

" See http: / /www.seniorpilotscoalition.org /CALPilotBid09 07.pdf

and Attp:/ /www.seniorpilotscoalition.org /CALPilotBidList.pdf

'’ In addition to Continental Airlines, pilots with FedEx who

turned 60 before enactment of the statute have been allowed to

continue to fly in positions covered by the law. At least three chief

pilots have been allowed to continue without loss of seniority or

salaries. Id.

'’ After being cited by senior pilots, this statement was removed

from the website.

Pet. Opening Br. (Addendum C). The FAA has clearly

continued to allow exemptions and it is not clear why

other pilots cannot seek similar exemptions —

particularly Petitioners who filed for exemption before

the enactment of the law.”’ Thus, the agency has

previously followed an interpretation in dozens of

cases that some form of exemption continues after

December 13, 2007.

The lower court allowed the FAA to dismiss dozens

of petitions under a claim that no exemptions are now

possible while fully aware that dozens of exemptions

have been allowed under the new law. At a minimum,

as argued below, this matter should be returned either

to the FAA for further determinations or to the lower

court for further explanation on the existence of post-

enactment exemptions.

Ultimately, this uncertainty only magnifies the

flaws in the mootness decision below. This Court has

declared a case moot when legislation makes it

“impossible” to render relief. Church of Scientology of

Cal. v. United States, 506 U.S. 9, 12 (1992). Thus, in

past cases of mootness, the Court found clear statutory

barriers making relief impossible. In Dep’t of Treasury

v. Galioto, 477 U.S. 556, 559-60 (1986), the court found

that an equal protection challenge under a federal]

firearms statute was moot when Congress removed

entirely the discriminatory treatment. In the instant

“*’ Even in its briefing below, the government did not deny that

such exemption might be possible — stating instead that an

exemption “process has yet been established” under the new Act.

(Gov't Br. at 27.) Yet, any exemptions for these dozens of pilots

would have had to occur under a continuation of the prior

exemption process.

case, Congress continued to maintain a discriminatory

provision based on age. More importantly, the statute

does not expressly abrogate the authority of the FAA

to continue to grant exemptions — which have in fact

continued after the enactment. The lower court cannot

claim impossibility to render relief when it refuses to

even address such factual and legal arguments that

relief is possible.

Likewise, the Court has held a subsequent statute

mooted a challenge to a statute that contained an

unlawful delegation of legislative power when

Congress proceeded to detail the agency’s

responsibilities. Bd. of Pub. Util. Comm'rs v.

Compania General De Tabacos De Filipinas, 249 U.S.

425, 426 (1919). Also, in Berry v. Davis, 242 U.S. 468,

470 (1917), the Court addressed a challenge to a

lawsuit requiring a mandatory vasectomy on the

plaintiffs. The lawsuit was moot after the law was

changed so that it was no longer applicable to the

plaintiff, making further relief impossible.

Contrary to the lower court’s opinion, this Court

has refused to assume that a new statute would work

to block any relief. Thus, in Fusari v. Steinberg, 419

U.S. 379, 389 (1975), the Court was presented with a

case where the Connecticut legislature amended a

statute that had been found to violate the due process

clause to add the needed procedural protections for

unemployment compensation. While the lower court

did not feel at liberty to address the new procedures in

the existing case, this Court reversed the decision and

declined to declare the case moot without a

consideration of the new legislation and how it would

affect the litigants. In this case, the lower court

ignored specific claims of how the new statute might

not preclude the relief sought by the Petitioners, but

declined to consider how the statute might be applied

to Petitioners, particularly in light of the known

exemptions given to other pilots.

The status of the pilots under the old and new rule

remains largely unchanged: they are denied their

salary, status, and seniority due to their age. See

Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t

of Health and Human Res., 532 U.S. 598, 609 (2001)

(quoting Friends of Earth, Inc. v. Laidlaw Enuvtl. Serv.

(TOC), Inc., 528 U.S. 167, 189 (2000)) (holding that a

legislative change “does not deprive a federal court of

its power to determine the legality of the practice’

unless it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.”’); cf. Zessar v. Keith, 536 F.3d 788, 793 (7th Cir.

2008) (noting that mootness determination was

supported by the fact that “the amended Code is not

substantially similar to the challenged provisions of

the pre-amendment Code.”). Moreover, as a practical

matter, Petitioners are barred from flying commercial

passenger aircrafts due to the Joss of their seniority

and status. Absent an exemption allowing them to

retain their seniority and status, it is practically

impossible for them to resume flying such aircraft

which requires not just the hiring of an older pilot but

re-starting as a new pilot. Cf Rosenstiel v. Rodriguez,

101 F.3d 1544, 1548 (8th Cir. 1996) (“If the new

statute disadvantages [Smithfield] in the same

fundamental way the repealed statute did, the

amendment does not divest the court of the power to

decide the case.”); Smithfield Foods, Inc. v. Miller, 367

F.3d 1061, (8° Cir. 2004) (same).

While the government has relied on Kremens v.

Bartley, 431 U.S. 119 (1977), that case reinforces the

position of the Petitioners. The Court was faced with

a case where the rights that plaintiffs had sought to

establish in litigation were in fact included in a new

law. The matter was mooted by legislation awarding

the very rights sought by the litigants. The correct

analogy to the current case would be if Congress

nullified the Age 60 Rule and returned the pilots to

their prior positions with compensation for lost wages

and status. Instead, Congress enacted a new or

modified Age 60 Rule that is constitutionally infirm.

Due to the failure of the D.C. Circuit to address

alternative interpretations of the statute or the FAA’s

own allowance of exemptions, Petitioners have been

denied an opportunity to specifically contest such

determinations on appeal. If these pilots are to lose

their livelihoods, they deserve, at a minimum, to be

given a reasoned basis for this decision. By simply

adopting the agency interpretation and refusing to

review the new statute, the lower court denied the

pilots substantive review guaranteed under 49 U.S.C.

§ 46110(a) and the Due Process Clause of the Fifth

Amendment of the United States Constitution.

CONCLUSION

For the reasons’ stated above, Petitioners

respectfully submit that their petition for a writ of

certiorari should be granted.

Respectfully submitted,

Jonathan Turley

Counsel of Record

Attorney at Law

2000 H. Street N.W.

Washington, DC. 20052

(202) 994-7001

Attorney for Petitioners

APPENDIX

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-1180

Decided December 19, 2008

Argued November 10, 2008

GRANT O. ADAMS, ET AL..,

PETITIONERS

FEDERAL AVIATION ADMINISTRATION

AND UNITED STATES DEPARTMENT OF

TRANSPORTATION,

RESPONDENTS

eZ we YY SY SZ SZ Se SW’ OS OS

Consolidated with 07-1194, 07-1226, 07-1326, 07-1366,

07-1390, 07-1447, 07-1507, 07-1524, 08-1023, 08-1360

On Petition for Review of an Order of the Federal

Aviation Administration

Jonathan R. Turley argued the cause and filed the

briefs for petitioners.

Edward Himmelfarb, Attorney, U.S. Department of

Justice, argued the cause for respondents. With him on

the brief were Gregory G. Katsas, Assistant Attorney

General, and Michael Jay Singer, Attorney. Robert S.

Greenspan, Attorney, entered an appearance.

Jonathan A. Cohen, Marta Wagner and David M.

Semanchik were on the brief for amicus curiae Air

Line Pilots Association, International in support of

respondents.

Ronald G. Birch was on the brief for amici curiae

Airline Pilots Against Age Discrimination, et al. In

support of respondents.

Before: GINSBURG and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

BROWN.

BROWN, Circuit Judge: Petitioners are commercial

airline pilots who reached the age of 60 before

December 13, 2007. As many pilots have done before

them, these pilots filed requests for an exemption with

respondent, the Federal Aviation Administration

(FAA), from the regulation barring them from flying

commercial aircraft after they turned 60. 14 C.F.R.

§ 121.383(c) (Age 60 Rule).’ The FAA denied their

' The FAA promulgated the so-called Age 60 Rule in 1959. In its

latest form, it provided:

No certificate holder may use the services of any person as

a pilot on an airplane engaged in operations under this

part if that person has reached his 60th birthday. No

person may serve as a pilot on an airplane engaged in

requests for exemption. Petitioners filed petitions for

review in this Court under 49 U.S.C. § 46110(a), which

permits direct challenges to “an order issued by... the

Administrator of the Federal Aviation Administration

On December 13, 2007—after some but not all of

the petitions for review were filed with this Court—-the

President signed into law the Fair Treatment for

Experienced Pilots Act (FTEPA or the Act), codified at

49 U.S.C. § 44729. The Act provides, among other

things, that the maximum age limit for pilots flying

large commercial aircraft now is 65. Id. § 44729(a).

The Act expressly repeals the regulation that was the

Age 60 Rule, stating “lo]n and after the date of

enactment of this section, section 121.383(c) of title 14,

Code of Federal Regulations, shall cease to be

effective.” Id. § 44729(d).

Respondents say the Act moots these petitions for

review because there is no longer an Age 60 Rule from

which to exempt the petitioners. Petitioners respond

that the Act cannot moot their petitions for review

operations under this part if that person has reached his

60th birthday.

14 C.F.R. § 121.383(c).

* Petitioners also filed petitions for reconsideration with the FAA,

Pending petitions for agency reconsideration normally would

render the petitions for review in this Court incurably premature.

See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108, 110—11(D.C.

Cir. 2602). The FAA denied the petitions for reconsideration

during this litigation, however, and petitioners have since filed

new petitions in this Court. These have been consolidated with

their original petitions.

because the Act itself is unconstitutional. Specifically,

petitioners object to the treatment of pilots who

reached age 60 before the FTEPA’s enactment (and

were ineligible to fly under the regulatory Age 60 Rule)

but are not yet 65 (and are not yet ineligible to fly

under the Act). The statute denies such pilots any

seniority or benefits from their prior (pre-age 60) years

of service if they are hired or rehired by an airline. Jd.

§ 44729(e)(1)(B). In petitioners’ view, this provision is

a constitutionally-prohibited bill of attainder and a

violation of their rights to due process and equal

protection. Petitioners do not, however, challenge the

Act’s abrogation of the Age 60 Rule.

Petitioners fail to recognize we do not have

jurisdiction to consider constitutional questions

unrelated to the FAA’s order. As long as petitioners

can satisfy the usual Article III standing

requirements, their facial challenges to the Act must

be brought in the district court in the first instance,

which has original jurisdiction over federal question

claims under 28 U.S.C. § 1331. Petitioners insist we

cannot dismiss the petitions as moot as a result of the

statute without considering the validity of the statute,

but they fail to cite any persuasive authority.

By contrast, respondents direct our attention to

Coalition of Airline Pilots Associations v. FAA, 370

F.3d 1184 (D.C. Cir. 2004), involving the due process

rights of pilots the ‘Transportation Security

Administration deemed security risks. Congress

passed a statute during the litigation changing the

procedures the’ agency had adopted by regulation. /d.

at 1188. Congress’s action mooted the controversy then

before the Court. Jd. at 1190-91. When the petitioners

in that case argued the statute itself was infirm, this

Court established a clear boundary: “[T]o the extent

the Coalition is attacking [the new statute], and not

the rules themselves, we lack jurisdiction to consider

such a claim. If the Coalition wishes to challenge the

new statute, it must do so in the district court.” Jd. at

1191.

Coalition of Airline Pilots Associations is on point.

The Act, which expressly abrogates the Age 60 Rule,

moots the petitions for review of the orders denying

exemption from the Age 60 Rule. And if petitioners

wish to challenge the constitutionality of the statute

on its face, they should— assuming they can show

Article IT] standing—file a complaint in the district

court. Seeking initial review of the statute here

extends beyond the jurisdictional grant of 49 U.S.C.

§ 46110(a). Accordingly, the petitions for review are

dismissed.

So ordered.

APPENDIX B

U.S. Department of Transportation

Federal Aviation Administration

Office of the Administrator

800 Independence Ave., S.W.

Washington, D.C. 20591

OCT 23, 2008

Exemption No. 9214A

Regulatory Docket No. FAA-2007-27537

Mr. Jonathan Turley

2000 H Street, NW.

Washington, DC 20052

Dear Mr. Turley:

This letter is to inform you that we are denying your

petition for reconsideration on behalf of Mr. Grant O.

Adams concerning the Age 60 Rule. This letter

explains the basis of our decision and transmits that

decision to you.

The Basis for our Decision

On June 8, 2007, you petitioned the Federal Aviation

Administration, on behalf of Mr. Adams, for

reconsideration of Denial of Exemption No. 9214 from

§ 121.3839(c) of Title 14, Code of Federal Regulations

(14 CFR), commonly referred to as the Age 60 Rule, to

the extent necessary to permit Mr. Adams to act as a

pilot in operations conducted under part 121 after

reaching his 60th birthday.

On December 138, 2007, President Bush signed into law

the “Fair Treatment for Experienced Pilots Act.” The

Act has now been codified at Title 49 of the United

States Code, section 44729. It prohibits persons who

turned 60 before the effective date of the Statute from

serving as pilots in part 121 operations unless certain

conditions are met. Specifically, no person may serve

as a pilot for an air carrier engaged in covered

operations unless (1) he or she was in the employment

of that air carrier in such operations on December 13,

2007 as a required flight deck crew member or (2) he

or she is newly hired by an air carrier as a pilot on or

after December 13, 2007 without credit for prior

seniority or prior longevity for benefits or other terms

related to length of service prior to the date of rehire

under any labor agreement or employment policies of

the air carrier.

We realize that your request for exemption pre-dates

enactment of the Statute; however, we cannot

retroactively grant an exemption from a requirement

that no longer exists. Nor does the Statute give the

FAA the authority to grant exemptions from its

requirements. Accordingly, we do not have any

discretion to grant exemptions to the provisions of the

legislation.

The FAA’s Decision

In consideration of the foregoing, I find that the FAA

does not have the authority to grant an exemption to

the requirements of 14 CFR § 121.383(c). Therefore,

your petition for reconsideration of the denial of

exemption is hereby denied.

Sincerely,

/s/

Robert A. Sturgell

Acting Administrator

APPENDIX C

U.S. Department of 'Transportation

Federal Aviation Administration

800 Independence Ave., S.W.

Washington, D.C. 20591

APR 13, 2007

Exemption No. 9214

Regulatory Docket No. FAA-2007-27537

Mr. Grant O. Adams

516 St. Vincent Lane

Foster City, CA 94404

Dear Mr. Adams:

This letter is to inform you that we are denying your

petition for exemption from the Age 60 Rule. This

letter explains the basis of our decision and transmits

it to you.

The Basis for our Decision

On March 5, 2007, you petitioned the Federal Aviation

Administration (FAA) for an exemption from § 121.383

commonly referred to as the Age 60 Rule, to the extent

necessary to permit you to act as a pilot in operations

conducted under part 121 after reaching your 60"

birthday.

10a

Under the authority of 49 U.S.C. § 44701(f), the FAA,

in its discretion, may grant an exemption from the

requirements of a regulation if it finds that such an

exemption is in the public interest. The petitioner has

the burden of showing that an exemption is justified

and in the public interest.

On September 28, 2006, the FAA established an

Aviation Rulemaking Committee (ARC) to make

recommendations on whether the FAA should change

the existing Age 60 Rule so that the United States

would be consistent with a pending change to the

International Civil Aviation Organization (ICAO)

standard. The ARC submitted its report on November

29, 2006. The report is available to the public through

the Docket Management System at http://dms.dot.gov

at any time or you can go to Room PL-401 on the plaza

level of the Nassif Building, 400 Seventh Street, SW.,

Washington, D.C., between 9 a.m. and 5 p.m., Monday

through Friday, except Federal holidays (Reference

Docket No. 26139). The report is document number

5785 and a separate document that contains

appendices to the report is document number 5786 in

that docket. The ARC did not reach a consensus on

whether the FAA should adopt the new ICAO

standard, but it did recommend that any future change

should be prospective.

On November 23, 2006, ICAO revised the upper age

limit. in the Standards and Recommended Practices to

Annex 1—Personnel Licensing as follows:

2.1.10.1: A Contracting State, having issued

pilot licenses, shall not permit the holders

thereof to act as pilot-in-command of an aircraft

engaged in international commercial air

lla

transport operations if the license holders have

attained their 60th birthday or, in the case of

operations with more than one pilot, where the

other pilot is younger than 60 years of age, their

65th birthday.

2.1.10.2: Recommendation. A Contracting

State, having issued pilot licenses, should not

permit the holders thereof to act as co-pilot of

an aircraft engaged in international commercial

air transport operations if the license holders

have attained their 65th birthday.

The ICAO standard and recommendation do not

require the FAA to change its existing regulations.

However, the FAA has decided to move forward with

the rulemaking initiative and is currently developing

a proposal (a notice of proposed rulemaking) to revise

the Age 60 Rule in response to the new ICAO

standard. The FAA recognized that those persons

approaching age 60 are, in general, experienced pilots.

Thus, a general expansion of the current age limit may

be appropriate. That proposal will be subject to public

notice and comment, as required by the Administrative

Procedure Act. However, the FAA has not yet changed

the rule, and there is still an age limit of 60 pilots

serving in part 121 operations.

While we are sympathetic to the individual

circumstances of pilots such as yourself who have

applied for an exemption while the rulemaking process

is ongoing, the FAA simply cannot overturn more than

40 years of precedent in this area without a

deliberative process. ‘To do so would circumvent the

public notice and comment requirements of the

Administrative Procedure Act and appear to

12a

presuppose the outcome of our proposal. You have not

shown the public interest warrants relief for individual

pilots. This situation is more appropriately addressed

via general rulemaking for a class of individuals than

via an individual exemption. Please be assured that we

are moving as quickly as_ possible with this

rulemaking.

The FAA’s Decision:

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

exemption would not be in the public interest.

Therefore, pursuant to the authority contained in

49 U.S.C. §§ 40113 and 44701 delegated to me by the

Administrator, your petition for an exemption from

14 CFR § 121.383(c) is hereby denied.

Sincerely,

/s/

James. J. Ballough

Director, Flight Standards Service

l3a

APPENDIX D

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-1180

FAA-2007-27537

[Filed On: February 19, 2009}

Grant O. Adams, et al.,

Petitioners

Vv.

Federal Aviation Administration

and United States Department

of Transportation,

Respondents

ee a a ee a a

September Term 2008

Consolidated with 07-1194, 07-1226, 07-1326, 07-1366,

07-1390, 07-1447, 07-1507, 07-1524, 08-1023, 08-1360

BEFORE: Sentelle, Chief Judge, and Ginsburg,

Henderson, Rogers, Tatel, Garland,

Brown, Griffith, and Kavanaugh, Circuit

Judges, and Williams, Senior Circuit

Judge

l4a

ORDER

Upon consideration of petitioners’ petition for

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

member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.