Professional Pilots Federation v. F.A.A., s. 95-1604

• Decision Date: 05 November 1997
• Docket Number: 96-1025 and 96-1026,Nos. 95-1604,s. 95-1604
• Citation: 118 F.3d 758
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 345, 71 Empl. Prac. Dec. P 44,875, 326 U.S.App.D.C. 157 PROFESSIONAL PILOTS FEDERATION, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 758

118 F.3d 758

74 Fair Empl.Prac.Cas. (BNA) 345,

71 Empl. Prac. Dec. P 44,875, 326 U.S.App.D.C. 157

PROFESSIONAL PILOTS FEDERATION, et al., Petitioners v. FEDERAL AVIATION ADMINISTRATION, Respondent.

Nos. 95-1604, 96-1025 and 96-1026.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 3, 1996.

Decided July 15, 1997.

Rehearing Denied Nov. 5, 1997. ^*

On Petitions for Review of Orders of the Federal Aviation Administration.

Nicholas H. Cobbs, Washington, DC, argued the cause for petitioners, with whom Michael J. Pangia, Washington, DC, was on the briefs.

Christine N. Kohl, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for respondent, with whom Frank W. Hunger, Assistant Attorney General, Washington, DC, and Robert S. Greenspan, Attorney, were on the brief.

Edgar N. James and Marta Wagner, Atlanta, GA, were on the brief for amicus curiae Allied Pilots Association. Martha L. Walfoort, Washington, DC, entered an appearance.

Aidan D. Jones, Washington, DC, was on the brief for amicus curiae Southwest Airlines Pilots' Association.

Before: WALD, GINSBURG, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge WALD.

GINSBURG, Circuit Judge:

The Professional Pilots Federation and two individual pilots petition for review of two decisions of the Federal Aviation Administration: not to institute a rulemaking to relax the FAA Rule that requires commercial airline pilots to retire at age 60, and to extend application of the Rule to commuter airline operations. The Pilots contend, first, that the Rule unlawfully requires airlines to violate the Age Discrimination in Employment Act, see 29 U.S.C. § 621 et seq., and, second, that the FAA acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, when it decided to retain and expand the scope of the Rule. Finding merit in neither contention, we deny the petitions for review.

I. Background

The FAA first promulgated the Age 60 Rule in 1959 pursuant to its mandate under the Federal Aviation Act of 1958 to ensure air safety. 24 Fed.Reg. 9767 (December 5, 1959). See 49 U.S.C. § 44701(a)(4) (authorizing Administrator to promulgate "regulations in the interest of safety for the ... periods of service of airmen"); 49 U.S.C. § 44701(c) (requiring Administrator to regulate "in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation"); 49 U.S.C. § 44702(b)(1)(A) (requiring Administrator to consider "the duty of an air carrier to provide service with the highest possible degree of safety" when issuing an airman, air carrier, or other certificate); Air Line Pilots Ass'n, Int'l v. Quesada, 276 F.2d 892, 897-98 (2d Cir.1960). The agency concluded that the Rule would promote air safety after finding "that available medical studies show that sudden incapacitation due to heart attacks or strokes becomes more frequent as men approach age sixty and present medical knowledge is such that it is impossible to predict with accuracy those individuals most likely to suffer attacks." Quesada, 276 F.2d at 898. The Second Circuit, reasoning that it was not for a court to substitute its own "untutored judgment for the expert knowledge" of the agency, accepted this conclusion and dismissed an early challenge to the Rule. Id.

The FAA has reconsidered the Rule on several occasions. In the early 1960s, the agency began, but never completed, a study to determine the feasibility of testing individual pilots over the age of 60 in order to determine whether they remained fit to fly. See Aman v. FAA, 856 F.2d 946, 948 (7th Cir.1988). In 1970 the Air Line Pilots Association called upon the FAA to replace the blanket prohibition of the Age 60 Rule with a regime of individualized performance tests and medical evaluations, but the agency decided to retain the Rule because "an increase in the number of medical examinations administered to a given pilot ... would not be an effective deterrent to incapacitation inasmuch as the indices of such incapacitation are not now sufficiently developed." See O'Donnell v. Shaffer, 491 F.2d 59, 61 (D.C.Cir.1974).

In 1979 the Congress directed the National Institutes of Health to determine whether the Rule was still medically warranted. See Pub.L. No. 96-171, 93 Stat. 1285; see also Pilots Rights Ass'n v. FAA, 86 F.R.D. 174, 176 (D.D.C.1980). In its final report, the NIH concluded that there was "no special medical significance to age 60 as a mandatory age for retirement of airline pilots" but recommended that the age 60 limit be retained nonetheless because there was still no "medical or performance appraisal system that can single out those pilots who would pose the greatest hazard because of early, or impending, deterioration in health or performance." Report of the National Institute on Aging, Panel on the Experienced Pilots Study 1 (August 1981).

In 1982 the FAA considered relaxing the Rule in order to allow a small group of pilots to continue flying until age 62 in order to generate data on their performance under actual operating conditions. 47 Fed.Reg. 29,782 (July 8, 1982). The FAA ultimately determined, however, that "no medical or performance appraisal system can be identified that would single out pilots who would pose a hazard to safety." 49 Fed.Reg. 14,692, 14,695 (April 12, 1984). Unable "to distinguish those pilots who, as a consequence of aging, present a threat to air safety from those who do not," the agency decided not to experiment with changing the Rule. Id.

The present litigation was stimulated, at least in part, by a 1993 study of the Age 60 Rule that was performed by Hilton Systems, Inc. for the FAA's Civil Aeromedical Institute. The Hilton Study correlated accident data for the period from 1976 to 1988 with pilot age and flying time. This analysis revealed "no support for the hypothesis that pilots of scheduled air carriers had increased accident rates as they neared the age of 60." Hilton Study at 6-2. On the contrary, the study found a "slight downward trend" in accident rates as pilots neared the age of 60. The authors cautioned, however, that this decrease might have resulted from "the FAA's rigorous medical and operational performance standards screen[ing] out, over time, pilots more likely to be in accidents."

Shortly after publication of the Hilton Study the FAA announced that it was again considering whether to institute a rulemaking concerning the Age 60 Rule and invited comments from the public on various aspects of the Hilton Study. 58 Fed.Reg. 21,336 (April 20, 1993). The agency held a public hearing in September 1993 at which 46 members of the public made presentations. The agency also received more than a thousand written comments.

In July 1993 the Professional Pilots Federation filed with the FAA a rulemaking petition to repeal the Rule. The Pilots maintained that "time and empirical evidence have shown that the blanket elimination of the country's most experienced pilots is not justified in the interests of safety and, therefore, is arbitrary and capricious, and violates this country's policy of prohibiting employment discrimination on the basis of age."

In early 1995 after a series of accidents involving commuter airlines, the FAA proposed in a separate rulemaking to bring certain commuter operations, previously conducted under Part 135, under Part 121. 60 Fed.Reg. 16,230 (March 29, 1995). These operations would then become subject to the more stringent safety standards of Part 121, including the Age 60 Rule, relaxation of which the agency was still considering in the wake of the Hilton Study.

In December 1995 the FAA denied the Pilots' petitions to repeal the Age 60 Rule and decided not to institute a rulemaking in response to the Hilton Study. 60 Fed.Reg. 65,977 (December 20, 1995). The agency determined that the "concerns regarding aging pilots and underlying the original rule have not been shown to be invalid or misplaced," and concluded that the Rule was still warranted as a safety measure. Id. at 65,980. The FAA therefore retained the Rule, which provides that:

No certificate holder may use the services of any person as a pilot on an airplane engaged in operations under [Part 121] if that person has reached his 60th birthday. No person may serve as a pilot on an airplane engaged in operations under [Part 121] if that person has reached his 60th birthday.

14 CFR § 121.383(c) (1996). In addition the FAA adopted its proposed rule bringing under Part 121 certain commuter operations previously conducted under Part 135. 60 Fed.Reg. 65,832 (December 20, 1995). As a result, these commuter operations became newly subject to the Age 60 Rule. The Pilots petitioned this court for review of both rulemaking decisions.

II. Analysis

The Pilots challenge the FAA's decision not to institute a rulemaking to repeal the Age 60 Rule and its decision to apply the Rule to commuter airlines as violations of both the ADEA and the APA. First, the Pilots assert that by requiring the airlines to discriminate on the basis of age the Rule is in "direct conflict" with the ADEA. Second, they claim that the agency violated the APA by: (1) not affording adequate consideration to the reasonable alternatives proposed by various commenters; (2) reaching a decision that is against the weight of the evidence; and (3) failing to provide any reasoned basis for treating older pilots differently than other groups of pilots who create as great or greater a safety risk.

A. The ADEA

The Pilots argue that the Age 60 Rule violates the ADEA because it requires the airlines to discriminate against older pilots and because the FAA need not have relied upon an age-based Rule in order to achieve its objective of air safety. The agency, we are told, could instead have implemented a scheme of medical evaluations and...