Jones v. Air Line Pilots Ass'n

• Decision Date: 26 July 2011
• Docket Number: No. 10–5215.,10–5215.
• Citation: 395 U.S.App.D.C. 279,112 Fair Empl.Prac.Cas. (BNA) 881,642 F.3d 1100
• Parties: James M. JONES, Appellantv.AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, a Labor Organization, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

642 F.3d 1100

112 Fair Empl.Prac.Cas. (BNA) 881

395 U.S.App.D.C. 279

James M. JONES, Appellant

v.AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, a Labor Organization, et al., Appellees.

No. 10–5215.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 2011.Decided June 17, 2011.Rehearing En Banc Denied July 26, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–01075).Robert B. Fitzpatrick argued the cause and filed the briefs for appellant. Constantine J. Gekas entered an appearance.Granville C. Warner argued the cause for appellees. With him on the brief were Jonathan C. Fritts, Russell R. Bruch and Marta Wagner.Before: HENDERSON, GRIFFITH, and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge GRIFFITH.GRIFFITH, Circuit Judge:

In the district court, plaintiff James Jones challenged the constitutionality of a provision of the Fair Treatment for Experienced Pilots Act (FTEPA), 49 U.S.C. § 44729, which allows some pilots, but not him, to take advantage of Congress's decision to raise the mandatory retirement age from 60 to 65. Jones also alleged that his former employer, Continental Airlines, and his former union, the Air Line Pilots Association, violated a state law banning age discrimination in employment by failing to place him in a position at work that would have allowed him the benefit of the new retirement age. Before the district court, Jones conceded that the strength of his state claims depended on his constitutional arguments. It was no surprise, therefore, that the district court dismissed his state discrimination claims when it found his constitutional arguments wanting. On appeal, Jones offers for the first time a legal theory under which he says his state claims could succeed. We decline to pass on the merits of an argument the district court had no chance to consider and affirm the dismissal of Jones's suit.

I

In 1959, the Federal Aviation Administration (FAA) issued the “Age 60 Rule” prohibiting people over 60 from serving as commercial pilots. 24 Fed.Reg. 9767, 9768 (Dec. 4, 1959). The most recent version of the Age 60 Rule provided that no airline operator “may use the services of any person as a pilot on an airplane engaged in operations under [Part 121 of the Federal Aviation Regulations] if that person has reached his 60th birthday.” 14 C.F.R. § 121.383(c) (2008). Part 121 governs the operations of most commercial airlines. See id. § 121.1.

On December 13, 2007, Congress enacted the FTEPA, which expressly abrogates the Age 60 Rule, 49 U.S.C. § 44729(d), and allows “a pilot [to] serve ... until attaining 65 years of age,” id. § 44729(a). As a general matter, the FTEPA's repeal of the Age 60 Rule is not retroactive: “No person who has attained 60 years of age before [the FTEPA's] date of enactment ... may serve as a pilot for an air carrier engaged in ... operations [covered by Part 121 of the Federal Aviation Regulations].” Id. § 44729(e)(1).

However, this provision does not apply to someone who was over 60 on the date of enactment if he was serving as “a required flight deck crew member” at the time. Id. § 44729(e)(1)(A).^* Jones asserts it was possible for the airlines to avoid the FTEPA's nonretroactivity provision by temporarily demoting a pilot to “required flight deck crew member” when he turned 60, waiting for Congress to pass the FTEPA, and then promoting him to pilot. On appeal, Jones argues that state employment discrimination law entitled him to such a temporary demotion.

Jones was working as a pilot for defendant Continental Airlines based in Newark, New Jersey, when he turned 60 and was dismissed on November 9, 2007—just 33 days before the FTEPA took effect. He was not working for Continental as a “required flight deck crew member” or in any other capacity when Congress passed the FTEPA. Shortly before his birthday, Jones had petitioned the FAA for an exemption from the Age 60 Rule and asked Continental to temporarily change his employment status, anticipating that Congress would soon pass the FTEPA. The FAA and Continental refused his requests. On December 23, 2008, Jones filed a petition for review challenging the FAA's refusal to exempt him from the Age 60 Rule. We dismissed Jones's petition under Adams v. FAA, 550 F.3d 1174 (D.C.Cir.2008), in which we had previously held that the FTEPA mooted petitions for review challenging the FAA's application of the Age 60 Rule. See Jones v. U.S. Dep't of Transp., 2009 WL 2832030 (D.C.Cir. Apr. 22, 2009).

Jones then filed suit in the district court against Continental, the Air Line Pilots Association (ALPA), the United States, the Equal Employment Opportunity Commission (EEOC), and the FAA, as well as two EEOC officials and the Administrator of the FAA in their official capacities. Jones's complaint alleged that the failure to apply the FTEPA's higher age limit retroactively violated the Equal Protection and Due Process Clauses and was a bill of attainder. He further argued that Continental's refusal to allow him to return to work was part of an effort, joined by ALPA, to prevent him from continuing to serve as a pilot because of his age in violation of the New Jersey Law Against Discrimination (NJLAD). See N.J. Stat. Ann.. § 10:5–12.

After rejecting Jones's constitutional arguments, the district court dismissed his state claims as well because Jones had conceded to the court “ ‘that if the challenged portions of FTEPA are constitutional, they preempt his age discrimination claims under the New Jersey Law Against Discrimination.’ ” Jones v. Air Line Pilots Ass'n, 713 F.Supp.2d 29, 38 n. 8 (D.D.C.2010) (quoting Jones's Opp'n to Continental's Mot. to Dismiss 4). On appeal, Jones disputes only the dismissal of his state age discrimination claims against Continental and ALPA. We review the district court's dismissal of these claims pursuant to 28 U.S.C. § 1291.

II

Jones's concession to the district court that the FTEPA preempted his NJLAD claims is fatal to his appeal. No doubt recognizing that, he argues for the first time on appeal that the FTEPA does not preempt the claim he now advances: that Continental violated NJLAD by failing to temporarily demote him to “required flight deck crew member” so that he could take advantage of the newly enacted and higher age limit. But we decline Jones's invitation to consider a legal theory that he did not present to the district court, exercising “our well-established discretion not to consider claims that litigants fail to raise sufficiently below and on which district courts do not pass.” Cruz v. Am. Airlines, Inc., 356 F.3d 320, 329 (D.C.Cir.2004).

In its motion to dismiss, Continental argued to the district court that the FTEPA preempts Jones's NJLAD claims. Continental's Mot. to Dismiss 10. The FTEPA's preemption provision provides:

An 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] 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.

49 U.S.C. § 44729(e)(2).

Jones responded that he “agree[d] that if the challenged portions of FTEPA are constitutional, they preempt his age discrimination claims under [NJLAD] ... However, if those provisions are unconstitutional, they therefore cannot invalidate, preempt, supersede, or otherwise make ineffective the protections of that State statute.” Jones's Opp'n to Continental's Mot. to Dismiss 4. Jones's concession was well taken, and the district court dismissed the NJLAD claims after rejecting his constitutional arguments. Jones, 713 F.Supp.2d at 38 n. 8. On appeal, Jones argues that his seemingly unequivocal concession in his response to Continental's motion to dismiss related only to a subset of his NJLAD claims and that the FTEPA does not bar his new theory that an airline can run afoul of state employment law in the way it determines who benefits from the FTEPA's new age limits.

Because Jones did not press this theory before the district court, we decline to reach its merits. Jones did not make clear in his complaint that he was suing Continental for its failure to demote him to a...