720 F.3d 915 (D.C. Cir. 2013), 11-7142, Emory v. United Air Lines, Inc.

Docket Nº:11-7142, 12-5026.
Citation:720 F.3d 915
Opinion Judge:BROWN, Circuit Judge:
Party Name:George EMORY, et al., Appellants v. UNITED AIR LINES, INC., a Corporation and Wholly Owned Subsidiary of UAL Corporation and Air Line Pilots Association, Appellees United States of America, Intervenor. Grant O. Adams, et al., Appellants Troy G. Avera, et al., Appellees v. United States of America, et al., Appellees.
Attorney:John S. Lopatto III argued the cause and filed the briefs for appellants in Case No. 11-7142. Granville C. Warner argued the cause for appellee Air Line Pilots Association International in Case No. 11-7142. Gary S. Kaplan argued the cause for appellee United Air Lines, Inc. in Case No. 11-7142. W...
Judge Panel:Before: ROGERS and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Case Date:June 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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720 F.3d 915 (D.C. Cir. 2013)

George EMORY, et al., Appellants

v.

UNITED AIR LINES, INC., a Corporation and Wholly Owned Subsidiary of UAL Corporation and Air Line Pilots Association, Appellees

United States of America, Intervenor.

Grant O. Adams, et al., Appellants

Troy G. Avera, et al., Appellees

v.

United States of America, et al., Appellees.

Nos. 11-7142, 12-5026.

United States Court of Appeals, District of Columbia Circuit.

June 21, 2013

Argued Oct. 9, 2012.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia, (Nos. 1:08-cv-02227, 1:10-cv-01646).

John S. Lopatto III argued the cause and filed the briefs for appellants in Case No. 11-7142.

Granville C. Warner argued the cause for appellee Air Line Pilots Association International in Case No. 11-7142. Gary S. Kaplan argued the cause for appellee United Air Lines, Inc. in Case No. 11-7142. With them on the brief were Marta Wagner and Eric Jansen. Jonathan A. Cohen entered an appearance.

Jonathan Turley argued the cause and filed the briefs for appellants in Case No. 12-5026.

Edward Himmelfarb, Attorney, U.S. Department of Justice, argued the cause for appellees in Case No. 12-5026. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Michael Jay Singer, Attorney.

Before: ROGERS and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

BROWN, Circuit Judge:

With the enactment of the Fair Treatment for Experienced Pilots Act of 2007 (" FTEPA" or " Act" ), Pub.L. No. 110-135, 121 Stat. 1450, Congress repealed the Federal Aviation Administration's (" FAA" ) long-contested " Age 60 Rule" and extended the maximum age for piloting commercial flights by five years to 65. FTEPA marked a significant victory for opponents of the old regime, but not everyone was satisfied. Under the Act's nonretroactivity provision, 49 U.S.C. § 44729(e)(1), pilots who had turned 60 prior to FTEPA's enactment date and did not qualify for either one of two narrowly drawn statutory exceptions would be denied the benefits of the Age 65 Rule and, as was often the case, terminated.

Denied these extra years of employment as commercial pilots, the aggrieved over-60 pilots sued. Plaintiffs in Adams v. United States, 796 F.Supp.2d 67 (D.D.C.2011), challenged the constitutionally of

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the nonretroactivity and protection-for-compliance provisions as well as FAA's implementation of them.1 By contrast, plaintiffs in Emory v. United Air Lines, Inc., 821 F.Supp.2d 200 (D.D.C.2011), supplemented their constitutional objections with a number of state and federal claims against their employer, United Air Lines (" United" ), and their union, Air Line Pilots Association (" ALPA" ), for advancing allegedly discriminatory interpretations of the nonretroactivity provision they knew— or should have known— to be incorrect. The District Courts in both cases found in favor of the defendants, see Adams, 796 F.Supp.2d at 80; Emory, 821 F.Supp.2d at 243, and the present appeals followed.2

Believing as we do that FTEPA passes constitutional muster and should be interpreted as the Emory defendants have done, we affirm the District Courts' judgments as to all claims not dismissed as moot.

I. BACKGROUND

First implemented in 1959, FAA's so-called Age 60 Rule barred any person 60 years of age or older from serving as a pilot in flights conducted under Part 121 of the Federal Aviation Regulations. See 14 C.F.R. § 121.383(c) (2007). 3 Although the Rule survived nearly a half-century's worth of challenges in federal courts, see, e.g., Prof'l Pilots Fed'n v. FAA, 118 F.3d 758 (D.C.Cir.1997), institutional support for the age 60 ceiling dwindled. In 2006, the International Civil Aviation Organization (" ICAO" ) revised the maximum age from 60 to 65 for certain pilots in international operations. FAA responded by establishing the Age 60 Aviation Rulemaking Committee (" ARC" ) to make recommendations regarding the adoption of the ICAO standard, but the " polarized" Commission, with its 17 members " representing pilot unions, airlines, the aeromedical community, and the FAA," AGE 60 AVIATION RULEMAKING COMMITTEE, REPORT TO THE FEDERAL AVIATION ADMINISTRATION 1, 31 (Nov. 29, 2006), agreed on just one thing: " Any change to the Age 60 Rule should be prospective." Id. at 31.

Undeterred by the false start, FAA soldiered on. In January 2007, the agency announced it would amend the Age 60 Rule. Congress, however, preempted this rulemaking with the passage of FTEPA in December 2007. Among other changes, FTEPA abrogated the Age 60 Rule as of the Act's December 13, 2007, enactment date and replaced it with a new ceiling colloquially referred to as the " Age 65 Rule." 49 U.S.C. § 44729(d). Crucially, Congress gave the Age 65 Rule entirely prospective effect with just two exceptions. As codified in the Act's " Nonretroactivity"

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provision, id. § 44729(e)(1), an over-60 pilot that served as a " required flight deck crew member" (" RFDCM" ) on December 13, 2007, id. § 44729(e)(1)(A), or was subsequently hired as a new pilot without seniority, id. § 44729(e)(1)(B), could return to piloting Part 121 flights until age 65.

A safe harbor provision entitled " Protection for compliance" prevents any " action taken in conformance with this section ... or taken prior to the date of enactment of this section in conformance with [the Age 60 Rule]" from " serv[ing] 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." Id. § 44729(e)(2).

II. ADAMS V. UNITED STATES

A. OVERVIEW

The approximately 200 Adams plaintiffs can be split into two classes: (1) pilots who turned 60 and were retired under the Age 60 Rule some months or years before the December 13, 2007, enactment date,4 and (2) pilots who turned 60 between December 1 and 12, 2007, but remained in the air carrier's employ until December 31.5 Together they bring a veritable litany of constitutional and Administrative Procedure Act (" APA" ) claims against FTEPA's nonretroactivity and protection-for-compliance provisions as well as FAA's purportedly arbitrary and unlawful implementation of the two. See Adams Compl. ¶¶ 310-98. Although initially justiciable, the passage of time has called into question our ability to provide effective relief in this suit against the government. We turn to that threshold issue now.

B. MOOTNESS

An old axiom reminds us that time and tide wait for no man. Or pilot, we add.

The window on the nonretroactivity provision closed December 13, 2012, the five-year anniversary of the Act's enactment. On that date, every pilot for whom the prohibition against retroactivity (and the exemptions thereto) would have applied— pilots aged 60 to 64 the day FTEPA took effect— would have turned 65.6 We can now say with mathematical certainty that all members of this temporally circumscribed class are disqualified under the Age 65 Rule from ever piloting Part 121 flights.7 Restated, as of December 13, 2012, no pilot will ever be kept from— or allowed to return to— piloting Part 121 flights by operation of § 44729(e)(1).

The government's supplementary filing, submitted shortly after the five-year anniversary, urged us to dismiss the Adams appeal as moot. See Adams v. United

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States, No. 12-5026, Doc. No. 1410861 (D.C.Cir. Dec. 18, 2012) (" Mootness Memo" ). The government attacks Adams's complaint for failing to allege any cognizable relief, explaining the case is moot " because the plaintiffs seek only equitable relief. Despite their scattered references to damages in their brief, damages are, of course, unavailable under the APA, and there is no waiver of sovereign immunity to support an award of damages upon a declaration that a statute is unconstitutional." Id. at 3-4. Plaintiffs respond with nearly a dozen rapid-fire arguments in the hope that one sticks, see Adams v. United States, No. 12-5026, Doc. No. 1413923 (D.C.Cir. Jan. 7, 2013), and the government's reply effectively doubles down on earlier arguments, see Adams v. United States, No. 12-5026, Doc. No. 1415502 (D.C.Cir. Jan. 16, 2013). We think the government only partially correct.

* * *

" A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox v. Serv. Employees Int'l Union, Local 1000, __ U.S. __, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). " As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Id. (internal quotation marks and brackets omitted).

Although the government has made a strong conceptual case for mootness on Adams 's facts, we cannot say resolution of this jurisdictional issue is so cut-and-dried. Absent from the government's analysis is a discussion of Emory, the companion case with two overlapping plaintiffs. See supra n. 5. The Emory plaintiffs did appeal the District Court's dismissal of their constitutional challenges to FTEPA, see Emory, 821 F.Supp.2d. at 219-24, but rather than brief the issues in full, chose instead to incorporate by reference Adams's arguments on these issues, see Emory Appellants' Br. 5 n.1; Emory Appellants' Br. 57. As a direct consequence of this litigation strategy, certain constitutional claims appear in both Adams and Emory. This substantive overlap proves quite important for mootness purposes.

In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court acknowledged a narrow set of circumstances in which a court could " decid[e] the cause of action before resolving Article III jurisdiction." Id. at 98, 118 S.Ct. 1003. Specifically,...

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