Air Line Pilots Association, International v. Quesada

• Decision Date: 21 April 1960
• Docket Number: Docket 26174.,No. 337,337
• Citation: 276 F.2d 892
• Parties: AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, an Unincorporated Association, Clarence N. Sayen, et al., Plaintiffs-Appellants, v. Elwood R. QUESADA, Individually and as Administrator of the Federal Aviation Agency, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

276 F.2d 892 (1960)

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, an Unincorporated Association, Clarence N. Sayen, et al., Plaintiffs-Appellants, v. Elwood R. QUESADA, Individually and as Administrator of the Federal Aviation Agency, Defendant-Appellee.

No. 337, Docket 26174.

United States Court of Appeals Second Circuit.

Argued April 8, 1960.

Decided April 21, 1960.

COPYRIGHT MATERIAL OMITTED

Samuel J. Cohen, New York City (Henry Weiss, Herbert A. Levy and Cohen & Weiss, New York City, on the brief), for plaintiffs-appellants.

S. Hazard Gillespie, Jr., U. S. Atty., Southern District of New York, New York City (Robert J. Ward, Asst. U. S. Atty., Sherman J. Saxl, Asst. U. S. Atty., Daggett W. Howard, Gen. Counsel, William A. Crawford, Jr., Chief Atty., Federal Aviation Agency, Washington, D. C., on the brief), for defendant-appellee.

Before LUMBARD, Chief Judge, and HAND and HINCKS, Circuit Judges.

LUMBARD, Chief Judge.

On December 1, 1959 the defendant, Elwood R. Quesada, Administrator of the Federal Aviation Agency, promulgated a regulation which provides:

"No individual who has reached his 60th birthday shall be utilized or serve as a pilot on any aircraft while engaged in air carrier operations."¹

This regulation took effect on March 15, 1960.

The plaintiffs, thirty-five individual pilots, their collective bargaining representative, Air Line Pilots Association, and its president, brought the suit in January 1960 for a declaratory judgment that the regulation was null and void and for an injunction against its threatened application. The complaint alleged — and the plaintiffs contend on this appeal — that the regulation is invalid because it was issued without the holding of adjudicatory hearings required by the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, and by § 609 of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1429, before an airman's license may be amended, modified, suspended or revoked, and because it was arbitrary, discriminatory and without reasonable relation to the standards set forth in § 601 of the Act, 49 U.S.C.A. § 1421, under which it was issued. The plaintiffs also claim that the regulation, by terminating their right to pilot planes in commercial service after age sixty, deprives them of property in their pilots' licenses without due process of law. The district court, after submission of lengthy affidavits, denied the plaintiffs' motion for a preliminary injunction but reserved judgment on the Administrator's cross motion for summary judgment. Plaintiffs brought this appeal under § 1292(a) (1) of the Judicial Code, 28 U.S.C.A. We affirmed the order.²

The Federal Aviation Act was passed by Congress for the purpose of centralizing in a single authority — indeed, in one administrator — the power to frame rules for the safe and efficient use of the nation's airspace. The Administrator was given the authority, theretofore divided between the Civil Aeronautics Board and the Civil Aeronautics Authority:

"* * * To promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:

* * * * * *

"(5) Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air carriers; and

"(6) Such reasonable rules and regulations, or minimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for national security and safety in air commerce."³

Pursuant to this statutory authority the Administrator and his medical staff in the fall of 1958 began a study concerning the aging process and the diseases and physiological deterioration that accompany it in an effort to determine whether a maximum age should be set for service by commercial pilots. The Administrator took counsel with various experts in aviation medicine and safety and, among other things, determined the practices followed by five foreign air lines with respect to a mandatory retirement age. Finally, in June 1959 the Administrator published a proposed regulation in substance the same as that ultimately prescribed.⁴ In accordance with the rule-making requirements of § 4 of the Administrative Procedure Act, 5 U.S. C.A. § 1003, opportunity was afforded for the submission of written data and briefs. About one hundred comments, including those of the plaintiff association, were received. A large majority favored the regulation. No hearing was held since the Administrator determined, as he was entitled to under the rule-making provisions of the Administrative Procedure Act, that a hearing would not "serve a useful purpose" and that it was not "necessary in the public interest."

Plaintiffs assert that since the certificates of all commercial pilots are in effect modified by the regulation, and in the case of pilots already sixty, terminated, promulgation of the regulation was not rule-making within the meaning of the Administrative Procedure Act, but that the Administrator was obliged to proceed by holding an adjudicative hearing for each airman affected and by the entry of an "order."⁵ Alternatively, they say that whether one labels the issuance of the regulation rule-making or not, § 609 of the Federal Aviation Act, 49 U.S.C.A. § 1429, requires the Administrator to hold a hearing and permit each pilot affected to submit evidence as to the fairness of the regulation before his certificate can be amended.

Section 2 of the Administrative Procedure Act, 5 U.S.C.A. § 1001, defines a "rule" as "any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy * *" The regulation before us is just such a statement. It is directed to all the commercial airlines and to the more than 18,000 licensed commercial pilots. It looks to the future. It has the character of legislative enactment carried out on an administrative level. See Willapoint Oysters, Inc. v. Ewing, 9 Cir., 174 F.2d 676, 693, certiorari denied, 1949, 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527. Adjudication, on the other hand, whether administrative or judicial, is the application of a statute or other legal standard to a given fact situation involving particular individuals. Promulgation of the age sixty limitation by the Administrator was the very antithesis of adjudication; it was the formulation of a general rule to be applied to individual pilots at a subsequent time. We think the directive was properly issued in accordance with the rule-making requirements of § 4 of the Administrative Procedure Act.⁶ See United States v. Storer Broadcasting Co., 1956, 351 U.S. 192, 76 S.Ct. 763, 100 L. Ed. 1081; Air Line Pilots Ass'n v. C.A. B., 2 Cir., 1954, 215 F.2d 122; 1 Davis, Administrative Law § 5.01 (1958); Fuchs, Procedure in Administrative Rule-Making, 52 Harv.L.Rev. 259 (1938).

The Administrator's action does not lose the character of rule-making because it modifies the plaintiff pilots' claimed property rights in their licenses and their contractual rights under collective bargaining agreements to pilot planes beyond age sixty. Nor does the regulation violate due process because it modifies pilots' rights without affording each certificate holder a hearing. Administrative regulations often limit in the public interest the use that persons may make of their property without affording each one affected an opportunity to present evidence upon the fairness of the regulation. See United States v. Storer Broadcasting Co., supra; Bowles v. Willingham, 1944, 321 U.S. 503, 519-520, 64 S.Ct. 641, 88 L.Ed. 892. Obviously, unless the incidental limitations upon the use of airmen's certificates were subject to modification by general rules,⁷ the conduct of the Administrator's business would be subject to intolerable burdens which might well render it impossible for him effectively to discharge his duties. All changes in certificates would be subject to adjudicative hearings, including appeals to the courts, and each pilot whose license was affected — here some 18,000 — might demand to be heard individually. When met with a similar challenge, Justice Holmes stated:

"Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving him a chance to be heard." Bi-Metallic Investment Co. v. State Board of Equalization, 1915, 239 U. S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372.

All private property and privileges are held subject to limitations that may reasonably be imposed upon them in the public interest. Only when the limitations are too stringent in relation to the public interest to be served are they invalid. The limitations here are entirely reasonable. Home Building & Loan Ass'n v. Blaisdell, 1934, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413.

The plaintiffs strenuously urge that, however things may be under the Administrative Procedure Act, the statutory scheme of the Federal Aviation Act shows that Congress intended to afford airmen the greater protection of an individual hearing before their certificates may be modified. We disagree. Section 609 of the Act, 49 U.S.C.A. § 1429, states that "the Administrator may * * * reexamine any civil airman," and if, as a result of such reexamination, the Administrator "determines that safety in air commerce * * * and the public interest requires, he may issue an order amending, modifying, suspending, or revoking * * * any airman certificate." The certificate holder must be advised of the "charges or other reasons relied upon by the Administrator" for his action, and a hearing must be afforded with a right of appeal and trial de novo before the Civil...