Aman v. F.A.A., 87-2598

• Decision Date: 29 November 1988
• Docket Number: No. 87-2598,87-2598
• Citation: 856 F.2d 946
• Parties: 47 Empl. Prac. Dec. P 38,278 Melvin M. AMAN, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 946

856 F.2d 946

47 Empl. Prac. Dec. P 38,278

Melvin M. AMAN, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, et al., Respondents.

No. 87-2598.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1988.

Decided Sept. 12, 1988.

As Amended Oct. 19, 1988.

Rehearing Denied Nov. 29, 1988.

Raymond C. Fay, Bell, Boyd & Lloyd, Washington, D.C., for petitioners.

John Craig Weller, Office of Chief Counsel, Washington, D.C., for respondents.

Before WOOD, Jr. and CUDAHY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Petitioners in this case, pilots employed or formerly employed as captains for major airlines, seek review under 49 U.S.C.App. Section 1486(a) of an order of the Federal Aviation Administration ("FAA"). The challenged order denied a Petition for Exemptions from section 121.383(c) of the FAA regulations (the "age sixty rule"). Because we find that the FAA's findings and explanations with respect to an important aspect of the petitioners' argument for exemptions were inadequate, we vacate and remand.

I.

The age sixty rule prohibits flights covered by Part 121 of the FAA regulations, including commercial flights of airplanes seating more than thirty passengers, from taking off under the command of a pilot sixty years old or older. See 14 C.F.R. Secs. 121.1, 121.383(c) (1988). The age sixty rule does not impose mandatory retirement; but to remain in the cockpit air carrier pilots must continue to meet medical certificate requirements and restrict themselves to flights outside the coverage of Part 121 or accept demotions to positions of lesser authority, such as those of flight instructor or flight engineer. The FAA put the age sixty rule into effect in 1960. In defending the rule then, the FAA cited concerns about sudden incapacitation due to strokes and heart attacks and about the ability of the most senior pilots to operate the largest and fastest planes, see Air Lines Pilots Ass'n, Int'l v. Quesada, 276 F.2d 892, 898 (2d Cir.1960), cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961). The agency, however, held out the hope that "medical science may at some future time develop accurate, validly selective tests which would safely allow selected pilots to fly in air carrier operations after age 60." Certification and Operation Rules: Maximum Age Limitations for Pilots, 24 Fed.Reg. 9772, 9772 (1959). The rule was upheld against a variety of procedural and substantive challenges in Quesada and in O'Donnell v. Shaffer, 491 F.2d 59 (D.C.Cir.1974).

Since its enactment, the age sixty rule has been the subject of continuous controversy and intermittent reconsideration by the FAA. A study undertaken in the early 1960's to determine the feasibility of individualized assessments of pilots over sixty was abandoned before any results were formally announced. In 1969, an outside report was commissioned and completed but never released. In 1979, the FAA reviewed a Navy study on the long-term health histories of 1,000 aviators but concluded that the study failed to provide an adequate basis for revising the age sixty rule. In that same year, Congress expressed its interest in the issue, enacting legislation that directed the National Institutes of Health to assess whether the rule should be retained. Pub.L. No. 96-171, 93 Stat. 1285, 49 U.S.C.App. Sec. 1421 Note (1982). A panel of the National Institute of Aging was convened to fulfill the congressional mandate. The panel expressed doubts about the need for all pilots to step aside at age sixty, but recommended, in light of gaps in available information, that the rule be retained as a general policy while a study involving a selected group of older pilots exempted from the rule was conducted to assess the feasibility of a more individualized approach. After reviewing the panel's recommendation, the FAA published a notice soliciting comments on two proposals: an expansion of the scope of the age sixty rule to cover flight engineers as well as pilots and a test program that would allow selected pilots to continue serving as captains on commercial flights until their sixty-second birthdays to generate data for reconsideration of the rule. Advance Notice of Proposed Rulemaking, 47 Fed.Reg. 29,782, 29,782-84 (1982). However, two years later the FAA withdrew its test program proposal (together with the proposal to extend the rule), stating that the comments had failed to reveal "any means by which a scientifically valid study can be done to produce information which would support ... determination[s]" as to which pilots "could safely serve ... after reaching age 60." Withdrawal of Advance Notice of Proposed Rulemaking, 49 Fed.Reg. 14,692, 14,692 (1984). The FAA found inadequacies in suggested methods for assessing performance, especially under conditions of stress and fatigue, and for assessing the risk of incapacitation, especially incapacitation due to stroke. Id. at 14,693.

A number of pilots have sought to circumvent the age sixty rule through the exemption process. To date, their efforts have been uniformly unsuccessful both before the FAA and before the courts of appeals. See Keating v. FAA, 610 F.2d 611, 613 (9th Cir.1979); Gray v. FAA, 594 F.2d 793, 795 (10th Cir.1979); Rombough v. FAA, 594 F.2d 893, 899-900 (2d Cir.1979); Starr v. FAA, 589 F.2d 307, 311-14 (7th Cir.1978). Both this court and the Tenth Circuit, however, have warned that later denials of exemptions could be overturned if petitioners were able to show that the FAA failed to consider the effect of advances in medical technology on the necessity of maintaining a uniform age sixty cutoff. Starr, 554 F.2d at 314; Gray, 594 F.2d at 795. Our impression is that in the ten years that have passed since Starr, when the FAA last appeared before this court defending the denial of an exemption to the age sixty rule (before a panel, incidentally, that included two members of the present panel), the agency's progress in developing an understanding of the relationship between aging and flight performance has been disappointing.

The petitioners before this court are twenty-eight pilots employed as captains or flight engineers by major airlines. (Eleven other pilots joined in the original petition to the FAA, but declined to join in the request for review.) When the petition for exemption was filed with the FAA on June 3, 1986, twenty-five of the twenty-eight had passed the age of sixty and were working (with one exception) as flight engineers; the remaining three, who were approaching sixty when the petition was filed, were working as captains. ¹ The petition relied heavily on the recommendations of a six-member "Age 60 Exemption Panel," comprising five physicians and a psychologist with impressive qualifications in the fields of cardiology, aerospace medicine and neuropsychology. The panel devised an extensive battery of physiological and psychological tests as a basic protocol for assessing the fitness of pilots over the age of sixty. In the petition to the FAA, the panel stated that this protocol, if properly administered and supplemented, where appropriate, by additional medical tests and by the existing operational tests required by the FAA and the airlines (such as flight simulator testing), provided an adequate basis for exempting some older pilots from the age sixty rule. Statement of Age 60 Exemption Panel (Apr. 1986), reprinted in Joint Appendix 1-3.

On July 24, 1986, the FAA published a summary of the Petition for Exemption and invited public comment. In response to a request from one interested party, the FAA reopened the docket for thirty days after the normal twenty-day comment period had ended. The final docket contained over 180 submissions from physicians, scientists, Congressmen, pilots, professional organizations, companies and the FAA itself, together with the petitioners' two supplements to the original petition. On September 8, 1987, the FAA denied the requested exemptions based on its finding that granting individualized exemptions under the petitioners' standards would not ensure the level of safety achieved by uniform enforcement of the age sixty rule. Petitioners then brought this action for review. ²

II.

The parties disagree first as to whether this court should review the FAA's findings of fact under a "substantial evidence" or an "arbitrary and capricious" standard. Section 1006(e) of the Federal Aviation Act, 49 U.S.C.App. Sec. 1486(e) (1982), provides that the FAA's "findings of fact ..., if supported by substantial evidence, shall be conclusive." Several courts of appeals, however, have held that under some circumstances the arguably more deferential arbitrary and capricious standard applies, section 1006(e) notwithstanding. ³

In Tiger International, Inc. v. Civil Aeronautics Board, 554 F.2d 926 (9th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977), the Ninth Circuit reviewed a quasi-adjudicatory determination by the Board, a decision to impose conditions on transactions among affiliates to protect the financial well-being of an air carrier. The court held that although the determination might appear to have been covered by section 1006(e), it should be reviewed under an arbitrary and capricious standard because it had been reached in a case "where no hearing was required or requested" and where the record, as a consequence, consisted primarily of the petitioner's submissions. 554 F.2d at 936. The court noted that the Supreme Court has applied differing standards of review to factual findings made under the Administrative Procedure Act based on permissible differences in fact-finding processes. See Camp v. Pitts, 411 U.S. 138, 140-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106 (1973), cited in Tiger Int'l, 554 F.2d at 935. The Ninth Circuit observed that uniform application of the substantial evidence standard would require the administrative decision maker to convene a hearing or...