This page presents the litigation history of the Senior Pilots Coalition's (SPC's) appeal from the FAA's denials of requests by its members for waivers from the Age 60 Rule, 14 CFR 121.383(c). All of these petitions were filed, and denials issued, before enactment of H.R. 4343, Pub. L. 110-135.
BACKGROUND
On December 5, 1959, the FAA promulgated (formally published) its so-called "age 60 rule." For 47 years, this Federl Regulation prohibited any person age 60 or above from operating as a pilot (captain or co-pilot) for a U.S. registered carrier in air carrier operations, and any U.S. registered air carrier from using such a person as a pilot (captain or co-pilot) in these operations. This U.S. rule became effective on March 15, 1960, and restricted U.S. registered carriers and their pilots world-wide.
Following 12 years of U.S. pressure, the International Civil Aviation Organization (ICAO) adopted a less restrictive rule allowing any member State to prohibit pilots of "foreign" carriers from operting in its airspace as Pilot-in-Command (captain only, no age limit for co-pilots) on or after their 60th birthday. The ICAO "captians only" age 60 rule became effective in 1978 -- 18 years after the U.S. rule's effective date.
In 1989 (11 years after the ICAO rule became enforceable), Chile -- no bastin of liberality -- petitioned ICAO to reexamine its "captain's only" rule charging that it was outdated, never adequately justified, inefficient, and widely ignored. The petition asked that the rule be amended or rescinded as appropriate.
17 years later, on March 10, 2006, ICAO, over U.S. objections, adopted 65 as the maximum age for pilots to fly as captain in multi-pilot crews, provided another required pilot is under 60. This amended rule became effective on November 23, 2006.
Because the new ICAO upper age limit became 65, the US, as a treaty member, is required to accept captains of foreign carriers up to that age. On November 28, 2006, ElAl's Flight 002 landed at New York's JFK airport with the first foreign pilot to operate legally into U.S. airspace over age 60.
On Thursday, December 13, 2007, the President signed H.R. 4343, P.L. 110-135, the "Fair Treatment for Experienced Pilots Act," raising -- by statute -- the mandatory retirement age from 60 to 65 years for pilots of U.S. registered carriers within the United States, and for captains in international operations where another required crew member is under 60.
The law also denies retroactivity for pilots of U.S. registered carriers who turned 60 before the law's effective date (December 13, 2007), as well as access to any employment law forum -- contract, grievance, court -- in which a challenge to this denial could be pursued.
H.R. 4343 as signed.
LITIGATION HISTORY
Lew Tetlow's Request for waiver.
On January 2, 2007, shortly after the ICAO change, Lew Tetlow, President of the Senior Pilots Coalitioni (SPC), filed his request for a waiver from the Age 60 Rule.
Tetlow Request to FAA.
He also requested a personal meeting with Administrator Blakey
Request for Meeting w/ Blakey.
And that his employer, USAir, support his request for waiver:
Request for Support to USAir.
FAA Denial of Waiver Request..
On April 6, 2007, the FAA began issuing its long delayed denials of pilot waiver requests. Presented here is that for Lewis Tetlow. Except for names and dates, all other denials are the same.
Tetlow Denial.
SPC Petition for Review of the FAA's wholesale denial of pilot waiver requests..
On June 1, 2007 Professor Turley Petitioned in the D.C. Court of Appeals challenging the FAA's wholesale denial of waivers for SPC members.
SPC Appeal from FAA's Wholesale Denials.
SPC Statement of the Issues to be raised in this review..
On July 20, 2007 Professor Turley expanded on the earlier Petition for Review by identifying the issues to be raised in this review.
Statement of the issues raised.
President signs H.R. 4343
On Thursday, December 13, 2007, the President signed H.R. 4343, the "Fair Treatment for Experienced Pilots Act," which raises the mandatory retirement age from 60 years to 65 years for pilots serving on commercial passenger flights within the United States, and for captains in internationl operations where another required crew member is under 60 -- i.e., 65/60.
H.R. 4343 (Pub. L. 110-135) as signed.
[EdComment: The law also denies retroactivity for pilots turning 60 before the law's effective date (December 13, 2007), as well as access to any employment law forum -- contract, grievance, court -- in which a challenge to this denial could be pursued. Most, if not all, of the SPC member pilots requested their waivers prior to enactment of this law.]
DC Circuit Court of Appelals 1-page Order for a joint (FAA/SPC) briefing format.
On Wednesday, Feb. 20, 2008 the Court of Appeals ordered the parties to show cause why certain of the waiver requests should not be time-barred and to present a joint briefing format.
Court of Appeals Order.
[EdComment: There seems to be a mix-up on the February 20 and 21 dates. When I sort them out, I'll clarify them here.]
FAA Motion to Dismiss.
On Thursday, Feb. 21, 2008 the FAA moved to dismiss the SPC appeals on the grounds that the prior Age 60 Rule (14 CFR 121.383(c)) -- on which the waiver requests and denials had been originally based -- had been legislatively overturned by Pub.L. 110-135. Thus, argues the FAA, challenges to its denials of prior waiver requests are now moot.
FAA Motion to Dismiss.
Here are Professor Turley's views on the impact of P.L. 110-135 on the SPC waiver requests.
Turley Memorandum.
SPC Opposition to the FAA Motion to Dismiss.
On Friday, March 7, Professor Jonathan Turley filed the SPC's Opposition to the FAA's Motion to Dismiss the SPC Appeal from the FAA's wholesale denial waivers. This is a wide-ranging challenge to the Constitutionality of Pub.L. 110-135 [Oberstar's H.R. 4343], the basis for FAA's argument for dismissal -- that the original requests are now moot.
SPC Opposition to Motion to Dismiss..
Government's (FAA's) response to the SPC Opposition to Motion to Dismiss.
As this raises no rebuttal to the SPC's constitutional arguments, it appears that that the government (FAA) is attempting to avoid that issue, raising here only on jurisdictional and venue defenses.
Government's (FAA's) Response to SPC's Opposition.
NEW! !:
On April 24, the DC Court of Appeals assigned a 3-judge panel (Judges Henderson, Rodgers, and Tatel) to consider the FAA's Motion to Dismiss and established a briefing schedule for written arguments.
The SPC brief is due on June 11,
the FAA answer on July 11,
the SPC reply brief on July 25, and
all filings completed by August 29.
DC Court of Appeals Order of April 24, 2008.
[EdComment: The wording of this Order strongly suggests that the court contemplates oral argument following the written briefs.]
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