Yap v. Slater

• Decision Date: 05 October 2000
• Docket Number: No. CIV. 99-458 ACK.,CIV. 99-458 ACK.
• Citation: 128 F.Supp.2d 672
• Parties: Denis C.F. YAP, Plaintiff, v. Rodney E. SLATER, in his Capacity as the Secretary of the United States Department of Transportation, Defendant.
• Court: Hawaii Supreme Court

128 F.Supp.2d 672

Denis C.F. YAP, Plaintiff, v. Rodney E. SLATER, in his Capacity as the Secretary of the United States Department of Transportation, Defendant.

No. CIV. 99-458 ACK.

United States District Court, D. Hawai`i.

October 5, 2000.

Clayton C. Ikei, Honolulu, HI, for Denis C.F. Yap, plaintiffs.

Thomas A. Helper, Office of the United States Attorney, Honolulu, HI, for Rodney E. Slater, in his Capacity as the Secretary of the United States Department of Transportation, defendants.

ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

KAY, District Judge.

BACKGROUND

Denis C.F. Yap ("Plaintiff") worked as an air traffic controller ("ATC") and was forced to retire when he turned 56. In the instant lawsuit, he protests the Federal Aviation Administration ("FAA") requirement that he retire at age 56, while other ATCs are allowed to work past age 56. Plaintiff sues Rodney E. Slater ("Defendant" or "the Secretary") in his capacity as the Secretary of the United States Department of Transportation. Plaintiff's complaint alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1994) ("ADEA"), and his right to equal protection under the Fifth Amendment.¹ This motion was originally a motion for judgment on the pleadings. See Fed.R.Civ.P. 12(c); Mot., at 1. However, matters outside the pleadings have been presented for the Court's review and therefore, the Court will treat the motion as one for partial summary judgment. See Fed.R.Civ.P. 12(c).² The Court will set forth the mandatory retirement provisions in issue and then turn to the claims.

I. STATUTORY FRAMEWORK

Three different mandatory retirement schemes exist for ATCs employed by the FAA. The first group of ATCs are those hired before May 16, 1972. For these ATCs there is no mandatory retirement age so long as they remain members of the Civil Service Retirement System ("CSRS"), one of the retirement benefit plans administered by the Government. See 5 U.S.C. § 8335 note; Opp., Ex. D, at 2.

The second group of ATCs are those hired between May 16, 1972 and December 31, 1986 who are members of CSRS. In 1972, Congress enacted Public Law 92-297, codified at 5 U.S.C. § 8335 (1994). It states in relevant part:

An air traffic controller shall be separated from the service on the last day of the month in which he becomes 56 years of age. The Secretary³, under such regulations as he may prescribe, may exempt a controller having exceptional skills and experience as a controller from the automatic separation provisions of this subsection until that controller becomes 61 years of age.

5 U.S.C. § 8335(a) (emphasis added) (footnote added). The stated purpose of the mandatory retirement age was,

to improve the conditions of employment for individuals employed as air traffic controllers in the Department of Transportation by offering preferential retirement benefits, job training and improved appeal procedures for controllers removed from control work, and the establishment of maximum recruitment and retention ages for controllers.

S.Rep. No. 92-774 (1972), reprinted in 1972 U.S.C.C.A.N. 2287, 2287. The report observed that,

[A]ir traffic controllers are unique in that their work involves both physical and mental strain for the controller, and the safety of the public traveling by air. At large air terminals and en route centers in the United States, the role and importance of the controller is primary a status to which airline pilots are the first to testify. Over a period of time the physical and mental efforts of monitoring radar screens to track all aircraft within the range of a regional facility or tower or controlling tower traffic visually, or both, simply becomes too much for the average individual to sustain. Like skilled athletes, most controllers lose proficiency to some degree after age 40, and in the interest of the public's safety, should not be retained as controllers in busy facilities beyond the time they can perform satisfactorily.

Id. at 2288. Besides implementing a mandatory retirement age, Public Law 92-297 recognized that the retirement benefit rules for other civil servants "are too strict when applied to air traffic controllers," many of whom burn out before meeting the requisite age and year in service requirements. See id. at 2289 ("Although there are some exceptions to the general rule, most controllers are not able to control traffic in busy facilities at any age near 55 — the physical and emotional strength required to do the job, to work odd and continuously changing work shifts, and to insure air safety for the traveling public is simply too much for any man in that age bracket."). Accordingly, the new law eased the age and year in service requirements for air traffic controllers, giving them a "preferential system." See id. ("The committee recognizes that selecting air traffic controllers for preferential retirement treatment constitutes a significant change of policy for the civil service retirement system, but the unique employment of these employees justifies such a system. No other Government worker is so directly involved in the safety of millions of dollars of aviation equipment used to transport the public."). The new law also recognized that retirement at 56 would be stressful as ATC job skills are not easily transferable to other jobs. The law therefore made job training available. See id. at 2288 ("This training opportunity will remove much of the natural anxiety which controllers now feel when they are asked to step aside from active control work."). Finally, § 8 of Public Law 92-297 expressly provided that what is now codified as § 8335(a)⁴ "does not apply to a person appointed as an air traffic controller by the Department of Transportation before the date of enactment of this Act [May 16, 1972]." See 5 U.S.C. § 8335(a) note. Thus, while ATCs hired on or after May 16, 1972 face mandatory retirement at age 56, ATCs hired before May 16, 1972 are automatically exempted from the mandatory separation rules.⁵

Finally, the third group of ATCs are those who are members of the Federal Employee Retirement System ("FERS"), a retirement system that became effective January 1, 1987. The purposes of establishing the FERS system are set forth at the beginning of Public Law 99-335, the FERS legislation:

The purposes of this Act are —

(1) to establish a Federal employees' retirement plan which is coordinated with title II of the Social Security Act;

(2) to ensure a fully funded and financially sound retirement benefits plan for Federal employees;

(3) to enhance portability of retirement assets earned as an employee of the Federal Government;

(4) to provide options for Federal employees with respect to retirement planning;

(5) to assist in building a quality career work force in the Federal Government;

(6) to encourage Federal employees to increase personal savings for retirement; and

(7) to extend financial protection from disability to additional Federal employees and to increase such protection for eligible Federal employees.

Federal Employees' Retirement System Act of 1986, Pub.L. 99-335, § 100A, 100 Stat. 514. FERS was established as a new, distinct retirement benefit system for numerous federal employees, including ATCs. See, e.g., S.Rep. No. 166, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 1405 ("Although there are common elements between [FERS] and the existing [CSRS], the two will generally function as separate retirement programs.... [T]he two systems are quite different in regard to the employees covered, retirement eligibility requirements, benefits, and basic design."). Included within the new FERS scheme was a provision for the mandatory separation of ATCs covered by FERS. The provision, codified at 5 U.S.C. § 8425(a), states in relevant part:

An air traffic controller who is otherwise eligible for immediate retirement under section 8412(e) shall be separated from the service on the last day of the month in which that air traffic controller becomes 56 years of age or completes 20 years of service if then over that age.

5 U.S.C. § 8425(a) (emphasis added). Similarly to § 8335(a), § 8425(a) contains a waiver provision. FERS has a different way of calculating retirement eligibility and benefits. There were opportunities for ATCs to switch from CSRS to FERS.⁶ See Opp., Ex. D, at 2.

In addition to mandatory retirement, of course, an ATC may be removed from service for physical or mental reasons. See, e.g., 5 U.S.C. § 3381(a). The FAA annually tests ATCs to ensure they are healthy. See, e.g., Opp., Ex. J, at 5, 10 ("It is in the interest of the agency to develop and maintain the best possible Air Traffic Control Specialist Workforce."); see generally Opp., Ex. I, at 1-2 (describing job of Aviation Medical Examiners, who are hired by the FAA to test, inter alia, ATCs to ensure that they meet Federal Aviation Regulations and are medically fit to perform safety-related duties).

II. BACKGROUND OF PLAINTIFF'S CASE

There do not appear to be any facts in dispute. See Reply, at 2 ("Plaintiff and [the Secretary] are in agreement concerning the relevant facts."). Plaintiff was born February 19, 1943. He began working as an ATC in June of 1973. Plaintiff is a member of CSRS, not FERS. See Reply, Ex. A, ¶ 2. He continually served in the position of ATC for over 25 years. Plaintiff presented the Court with evidence that he passed all Aviation Medical Examinations since 1985, see Opp., Ex. K, and claims that he has passed all examinations since his hire.⁷

In August of 1981, many ATCs employed by the FAA engaged in an illegal strike under their former employee organization known as Professional Air Traffic Controllers' Organization (PATCO). Plaintiff did not strike, which "required [him] to cross PATCO picket lines set up at the Honolulu FAA facility, at personal risk and ridicule by his co-workers." Opp., at 3. In and about October of 1981, President Reagan terminated the over ...