Rombough v. Federal Aviation Administration

• Decision Date: 14 February 1979
• Docket Number: D,No. 19,19
• Citation: 594 F.2d 893
• Parties: James B. ROMBOUGH, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, and Langhorne M. Bond, Administrator, Federal Aviation Administration, Respondents. ocket 78-4023.
• Court: U.S. Court of Appeals — Second Circuit

Page 893

594 F.2d 893

James B. ROMBOUGH, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, and Langhorne M. Bond Administrator, Federal Aviation Administration, Respondents.

No. 19, Docket 78-4023.

United States Court of Appeals Second Circuit.

Submitted Sept. 18, 1978.

Decided Feb. 14, 1979.

Michael H. Bader, Raymond C. Fay, and Haley, Bader & Potts, Washington, D. C., for petitioner.

Barbara Allen Babcock, Asst. Atty. Gen., Leonard Schaitman, Judith S. Feigin, Attys., Civ. Div., App. Section, Dept. of Justice, Washington, D. C. (Marshall Filler, Federal Aviation Administration, Washington, D. C., of counsel), for respondents.

Before MOORE, TIMBERS and VAN GRAAFEILAND, Circuit Judges.

MOORE, Circuit Judge:

Petitioner James B. Rombough ("Rombough"), a former airline transport pilot, was retired upon reaching his sixtieth birthday under the so-called "Age 60 Rule", ¹ 14 C.F.R. § 121.383(c) (1977), promulgated by the Federal Aviation Administration ("FAA") in 1959. Prior to the date of his sixtieth birthday in December, 1975, Rombough was a pilot for American Airlines for thirty-three years. At the time of his retirement, he maintained current Captain qualifications on American's 707, 747 and DC-10 aircraft. In his more than forty years of aviation experience, he accumulated over 25,000 hours of flying time.

On December 21, 1977, Captain Rombough filed a petition for exemption from the Age 60 Rule ² asserting that his physical condition warranted the granting of an exemption. At the same time Rombough also filed a motion to disqualify the Federal Air Surgeon, Dr. H. L. Reighard, from participating in the case on the grounds of bias.

From the FAA's denial of both his application for exemption and motion to disqualify, Rombough has filed the instant petition to review pursuant to § 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1486(a) (1970). For reasons set forth below, we affirm.

I.

The FAA's denial of an exemption from the Age 60 Rule is properly reviewable by this court. The FAA argues that the denial of an exemption falls under the provision of the Administrative Procedure Act which excludes from judicial review "agency action . . . committed to agency discretion by law". 5 U.S.C. § 701(a)(2) (1976). Section 601(c) of the Aviation Act, 49 U.S.C. § 1421(c) (1970) provides that:

"The Administrator from time to time may grant exemptions from the requirements of any rule or regulation prescribed under this subchapter if he finds that such action would be in the public interest."

Key to the FAA's argument that Congress intended that the exemption decision be left to the Administrator rather than the courts is the appearance of the word "may" in 49 U.S.C. § 1421(c). However, the Supreme Court has held that 5 U.S.C. § 701(a)(2) is a "very narrow exception" to the general principle of reviewability and applies only in those rare cases where " 'statutes are drawn in such broad terms that in a given case there is no law to apply' ". Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971), quoting S.Rep.No.752, 79th Cong., 1st Sess., at 26 (1945). Here, under 49 U.S.C. § 1421(c), the statutory standard is the public interest. In review proceedings arising under other provisions of the Aviation Act, ³ which also incorporate the term "may" and the public interest standard, courts have found agency action to be reviewable under 49 U.S.C. § 1486(a) and not subject to unbridled discretion. See, e. g., REA Express, Inc. v. CAB, 507 F.2d 42, 45 (2d Cir. 1974); Utah Agencies v. CAB, 504 F.2d 1232, 1237 (10th Cir. 1974). Similarly, the FAA's exemption decision in this case cannot be considered an action committed to the unlimited discretion of the agency and thus beyond the scope of judicial review.

Moreover, § 1006(a) of the Aviation Act, 49 U.S.C. § 1486(a), specifically provides that "(a)ny order" of the Administrator, "affirmative or negative", is subject to judicial review. ⁴ This specific review provision must take precedence over the general provisions of the Administrative Procedure Act. Other circuits have sanctioned review of exemption determinations under this section. See, e. g., Coppenbarger v. FAA,558 F.2d 836 (7th Cir. 1977) (as to procedural aspects); Priority Air Dispatch v. National Transportation Safety Board, 169 U.S.App.D.C. 94, 514 F.2d 1335 (1975) (upholding National Transportation Safety Board review of termination of an exemption under similar statute). ⁵

II.

Before turning to petitioner's substantive claims, we must first determine the appropriate standard of review. The judicial review provision of the Aviation Act contains a standard of "substantial evidence" for findings of fact made by the FAA. 49 U.S.C. § 1486(e). However, the nonfactual analysis and conclusions of the agency in a review proceeding under 49 U.S.C. § 1486 have been judged under an abuse of discretion standard. See, e. g., Pillai v. CAB, 158 U.S.App.D.C. 239, 485 F.2d 1018 (1973); See also, Consolidated Flower Shipments v. CAB, 213 F.2d 814 (9th Cir. 1954). ⁶ Recently, in reviewing an order of the CAB pursuant to 49 U.S.C. § 1486, the Ninth Circuit applied an arbitrary, capricious or an abuse of discretion standard of review. Tiger International, Inc. v. CAB, 554 F.2d 926, Cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). The Ninth Circuit placed heavy emphasis on the decision in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), in which the Supreme Court applied the arbitrary and capricious standard in a case where there had been no adjudicative hearing. See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-15, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Although review in Camp v. Pitts was pursuant to the Administrative Procedure Act, the Ninth Circuit felt that the Supreme Court's critical distinction between review of a hearing record and review in a case where no hearing was held applied with equal force to a case brought under 49 U.S.C. § 1486. The Ninth Circuit's recognition of the administrative and practical difficulties in applying a substantial evidence test to a petition for exemption is equally pertinent here. ⁷

Here the regulations specifically state that no hearing is to be held on a petition for an exemption. 14 C.F.R. § 11.27(a). Nor does petitioner have a constitutional right to a hearing before denial of an exemption. Coppenbarger v. FAA, 558 F.2d 836 (7th Cir. 1977). Thus, on the facts of this case, an arbitrary and capricious standard is appropriate.

III.

In our review of the FAA's order, our role is not to determine Captain Rombough's fitness to fly. Nor are we to re-examine the validity of the Age 60 Rule or to review the evidence introduced before the FAA Administrator when he made the decision to keep the rule in force. However, the issue before us is somewhat broader than the denial of an exemption to a single individual on the merits. The FAA has adopted the position that, although the FAA Administrator has discretion to establish an exemption policy, the interests of safety would best be served by allowing No exemptions from the Age 60 Rule. The practical effect of this no-exemption policy is the rejection of all applications for exemption from the rule regardless of the showing made by an individual petitioner. We must determine whether in light of the congressional expectation that some exemptions will be granted, the FAA's policy of refusing to grant exemptions for an entire class of petitioners is an abuse of discretion.

We find that the FAA's denial of the exemption here was neither arbitrary nor capricious and uphold the FAA's policy of refusing to grant exemptions from the Age 60 Rule. The Age 60 Rule was promulgated in 1959 pursuant to the FAA's statutory authority to promote safety in air commerce. ⁸ This rule provided, as it does today, that no one who has reached age 60 may serve as a pilot on a commercial airplane. ⁹ Notice of proposed rulemaking was given and written comments were received but no formal evidentiary hearing was held. See Air Line Pilots Association, International v. Quesada, 276 F.2d 892, 895 (2d Cir. 1960), Cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961).

The mandatory retirement age embodied in the rule reflected extensive study by the Administrator of the aging process and of the possible safety hazards inherent in utilizing airline pilots aged 60 or over. When the rule was issued, the Administrator cited studies indicating that "sudden incapacity due to . . . medical defects becomes significantly more frequent in any group reaching age 60" and the possibility of sudden incapacity "due primarily to heart attacks and strokes, cannot be predicted accurately as to any specific individual on the basis of presently available scientific tests and criteria." 24 Fed.Reg. 9767 (December 5, 1959). Thus, the Administrator determined that it was not feasible to attempt to individualize assessments of pilots' medical qualifications, without regard to chronological age. 24 Fed.Reg. 9768 (December 5, 1959).

The rule has survived a number of challenges on both procedural and substantive grounds. In 1960, this court held that the rule was a valid exercise of the Administrator's rulemaking authority and that affected parties had no constitutional or statutory right to an evidentiary hearing before it was issued. Air Line Pilots Association, International v. Quesada, 276 F.2d 892 (2d Cir. 1960), Cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961).

In 1970 and 1971, the Air Line Pilots Association and a group of former pilots filed petitions with the FAA requesting revocation of the Age 60 Rule and a public evidentiary hearing. The FAA conducted informal hearings in October, 1971, and disposed of the groups' petitions in March 1972 on the following basis:

"In the opinion of the FAA, there continues to be a sound medical basis for...