IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

________

RECORD No. 94-3753

________

In the matter of PROFESSIONAL PILOTS FEDERATION

JERRY J. FIELDING, and

JAMES C. ROSATER

Petitioners

_______

AMICUS CURIAE SUBMISSION by

SAMUEL D. WOOLSEY

_______

            This submitter is a retired Part 121 air carrier pilot who has devoted much of the past four years to a rigorous study of the legislative, regulatory, technical, and political history of the FAA's Age 60 Rule.  I have never requested an exemption from the Age 60 Rule and am not a litigant in the instant action.  I make the fruits of my research available to any who indicate an interest, including the Profesional Pilots Federation.  The information contained in this document (and more) was discussed with the FAA's Deputy Chief Counsel, John H. Cassady, and his assistant, Don Byrne, during a meeting in Mr. Caddady's office on April 21, 1994  That discussion was memorialized in a letter to the Deputy Chief Counsel on April 25, 1994.[1]

            Among the sources I have researched are the legislative histories, congressional hearings and floor debates on relevant statutes, government publications and investigative reports (e.g., Government Accounting Office (GAO), Office of Technology Assessment (OTA), House Government Operations Committee, etc.), and internal FAA documents (many of which were made public only through FOIA actions).  Also reviewed are medical and safety studies conducted for (and others performed by) the FAA, as well as relevant reports and studies conducted by other experts and agencies, public statements by FAA officers and agents, official statements published in the Federal Register, etc.

            Taken together, my research discloses that the FAA, relying upon 34 years of judicial deference,[2] has repeatedly and consistently misstated both the underlying issues as well as the relevant evidence in its unceasing opposition to change.  Thus, it is the errors underlying the FAA's conduct, both past and present, that should be the primary measure of whether the FAA remains within its permissible discretionary boundaries.   See, e.g., EEOC v Boeing, 843 F.2d 1213, 1219 (9th Cir., 1988)(noting that "cases sustaining the FAA's refusal to grant exemptions [to the Age 60 Rule] decided no more than that the [petitioners] had failed to carry the burden of showing FAA had acted beyond its rulemaking and regulatory authority, without substantial evidence, or in abuse of its discretion." (citations omitted))

FAA Knowingly Misled this Court in Baker v FAA
When Presenting the Golaszewski Flight Time Study
as Factual Support for a "Net Risk" Analysis

            In Aman v FAA, 856 F.2d 946, 957 (7th Cir., 1988), this court recognized the value of a "net risk" analysis for questions of safety, remanding to the FAA for a "factual and legal basis" to substantiate its rejection of the petitioners' claim that the "older pilots' edge in experience offsets any undetected physical losses."  This question was then addressed in Baker v FAA, 917 F.2d 318 (7th Cir., 1990).  The centerpiece of the FAA's factual support for its continued refusal to grant exemptions was a statistical analysis it had commissioned in 1983: The Influence of Total Flight Time, Recent Flight Time, and Age on Pilot Accident Rates, Final Report, Contract No. DTRS57-83-P-80750. (hereafter "The Golaszewski Flight Time Study")  In 1990, FAA stated to this court:

The study on which the FAA has primarily relied but not solely is a 1983 report entitled "The Influence of Total Flight Time, Recent Flight Time, and Age on Pilot Accident Rates," herein-after referred to as the "Flight Time Study." ...

The methodology used in the Flight Time Study was based on a research design developed by a professor at Johns Hopkins University.  ...

. . . . .

The study represents the best available statistical analysis found regarding the relationship of experience and age to aviation accident rates while accounting for exposure.  It contains the best information and most closely parallels the relative accident rates that would be expected of airline pilots if the age 60 rule were modified to permit airline pilots to pilot airline aircraft after age 60.  ...

Brief of Respondents, Baker v FAA, No. 89-2524, at 6-8

            The court was not, however, to be confused.  The plaintiffs' had argued, correctly, that Golaszewski's analysis was flawed because of the inclusion of air carrier hours in the denominator of the rate equation, of which there were hundreds of thousands for pilots under age 60 but none for those over age 60.  The improper inclusion of these hundreds of thousands of flight hours into the denominator of the rate equation depressed all rates for pilots under age 60 (because only for those pilots were those hours accumulated), suggesting, incorrectly, an increased risk of accident after age 60.  The court's clear explanation of this fundamental error appears in its decision.  Baker v FAA, 917 F.2d, 318, at 320-321.

            What does not appear, however, is that the FAA knew the Golaszewski Flight Time Study was worthless when presenting it to this court.  When originally submitted in 1983, the study had been rejected by the FAA's office (Aviation Safety) that had commissioned and supervised the study.  Moreover, the study had not only been disowned by that office, but discredited by the scientific community at large:

. . . [The Golaszewski Flight Time Study] is unofficial because it was never formally published by the Federal Aviation Administration, (FAA) or the Office of the Assistant Administrator for Aviation Safety.

Under my management and technical direction, the analysts with Aviation Safety and contractor employees of Acumenics Research and Technology, Inc., supported Operations Research Branch in the development of the concepts and information relating accident rates and pilot experience.  We have not formally accepted this study as a final product because there are major data deficiencies.  Other problems with the study have been discussed by experts in the aviation field as well as within my office.  In 1983 we terminated further research on this topic.

Your use of this study to support any position may be questionable at best.  ...

Letter, Kenneth M. Chin, Executive Officer, Office of the Assistant Administrator for Aviation Safety, FAA to Samuel D. Woolsey, dtd. Jul. 24, 1991

            The breadth of FAA's dissemination (and by implication, endorsement) of this rejected and discredited "Study" is difficult to comprehend.  In 1989, FAA cited the Golaszewski Flight Time Study to the Government Accounting Office (GAO) as one of the "major studies" it had relied on "in rejecting alternatives to the Age 60 Rule."  (Aviation Safety: Information on the FAA's Age 60 Rule for Pilots, GAO/RCEd-90-45FS, November, 1989 at 17.)  The study had earlier become the basis for a private analysis prepared by a Dr. Charles Billings in defense of Boeing Aircraft Co.'s reliance on the FAA's Age 60 Rule as a BFOQ for the mandatory retirement of its test pilots, EEOC v Boeing, C84-187R (W.D.Wash.).  Boeing eventually settled with EEOC, and Billings did not testify.  Billings' summary of the Golaszewski data on behalf of Boeing became, however, the foundation of yet another review of the Rule, this time by Congress' Office of Technology Assistance (OTA).  Although Dr. Billings had been hired by Boeing as an individual, and his efforts for Boeing were personal, the Golaszewski/Billings/Boeing data appeared in the OTA paper as a "NASA Ames" work product.  (OTA Staff Memorandum, September 17, 1990, "Medical Risk Assessment of the Age 60 Rule for Airline Pilots." at 2.)  This Golaszewski/Billings/Boeing/"NASA Ames" and now OTA study has since been cited by additional, multiple defendants in their efforts to resist continuing litigation by the EEOC opposing age discrimination of corporate (Part 91) pilots.  (See, Declaration of Karen H. Baker, Assistant General Counsel, Systemic Litigation Services, Office of General Counsel, EEOC in EEOC v Delta Air Lines, Inc., CV No. 89-0517-AWT (C.D.Cal.), discussion throughout, concluding: "The OTA memo at issue here had no panel of experts, took only two weeks, was not approved for release, and was not submitted for publication." at 10) (See also, Declaration of Dr. T. Franklin Williams, Director of the National Institute on Aging, for EEOC v Lockheed Corp., CV 90-5253 (C.D.Cal.) discussion, pp. 11-15, concluding: "The OTA study is nothing new, is not research, and is not authoritative in the field of gerontology.  What its purpose was is unclear.  However, it should be given no value in the areas of gerontology or medicine." at 15)

            FAA, quite simply, presented to this court data that it knew to be flawed, rejected, and discredited as the "factual basis" this court had demanded by its remand in Aman.  In a word, FAA knowingly and intentionally misled this court with its submission in Baker.  Moreover, the same rejected and discredited data, but under the guise of new, recycled "authorities," (i.e., "expert witness," NASA Ames, OTA, etc.) has also been submitted to other courts across the nation by corporate defendants relying on the Age 60 Rule as a BFOQ in their continuing defenses of discriminatory, age-based retirement policies.

FAA is Similarly Misleading the Public (and Ultimately this Court)
in its Current Review of the Age 60 Rule by its Statements in the Federal Register

            In apparent (but unstated) response to the unanswered petitions for agency action that prompt the present litigation, FAA declared on April 20, 1993 that it was "considering whether to initiate rulemaking" on the Age 60 Rule and "Noticed" a "public meeting and request for comments."  (58 Fed. Reg. 21336, April 20, 1993)  But rather than identify the pending petitions, the agency released to the public and identified, instead, the Age 60 Project, Consolidated Database Experiments, Final Report.  That the consolidated database study was but a small part of a much larger project was not disclosed.[3]

            As "Background" in this Federal Register, the FAA cited the NIA/IOM study Report of the National Institute on Aging Panel of the Experienced Pilot Study (August 1981), a study conducted in response to Pub. L. 96-171.  FAA declared that the study had "concluded that the accident rates for pilots whose medical certificates permitted them to fly as commercial airline pilots had a substantially higher accident rate after age 60 than at younger ages," and recommended that the Rule be maintained.  Both assertions are, at best, disingenuous half-truths.

            The NIA/IOM Panel did conclude that the accident rates for pilots whose medical certificates permitted them to fly as commercial airline pilots had a substantially higher accident rate after age 60 than at younger ages, but the FAA's statement in the Federal Register is incomplete and misleading.  The relevant portion in the NIA/IOM Report states:

The data of Booze (FAA Report No. AM-77-10, 1977) indicate ... that general aviation pilots [whose experience most closely parallels that of professional pilots] have declining accident rates until the age of 60, after which those trends reverse.  The rise in accident rates ... in the 60- to 69-year age group with high recent experience ... is striking (Figure 2).

NIA/IOM Report at 3-4

            Not revealed by the FAA is that Booze used the same source for his data (flight hours from the FAA's airman medical certification records and accident count from NTSB accident files)[4] as did the later Golaszewski study, and thus produced the same errors in his calculations: i.e., inclusion of hundreds of thousands of air carrier flight hours for pilots under age 60 in the denominator of the rate equation, but no such hours for pilots over age 60.  The NIA/IOM "Figure 2" exhibits the same dramatic, but incorrect reversal of trend exactly at age 60 as does the Golaszewski study.  Indeed, the reversal depicted in the NIA/IOM Report is even more pronounced than that of Golaszewski, a result considered not "credible" by this court in 1990:

Indeed, looking at the [Golaszewski] Flight Time Study's chart of accident risk for Class I ... and Class II ... pilots with greater than 5,000 hours total flight time ..., the jump in accidents at age sixty to sixty-nine from age fifty to  fifty-nine simply looks too large to be credible.

Baker v FAA, at 321

            Similarly, the NIA/IOM Panel did recommend that the rule be maintained.  But the FAA's statement to this effect in its "Notice" of April 20 is grossly incomplete, thus also misleading.

            The NIA/IOM Report's "Conclusions and Recommendations" began with the declaration that "[t]he Panel attaches no medical significance to age 60 as a mandatory age for retirement of airline pilots," and coupled its recommendation to retain the rule with two others: (1) that the FAA engage in a systematic program to collect the medical and performance data necessary to consider relaxation of the age 60 rule (Recco. #2); and (2) that in view of the growing importance of commuter air carriers, the rule should be extended to cover "all pilots engaged in carrying passengers for hire, including, specifically, operations under part 135 [commuter carriers]" (Recco. #3).[5]  (NIA/IOM Report at 1)  Further, the Panel complained that its only reason for recommending retention of the rule was lack of adequate data on which to base any other conclusion:

One inevitable, but unfortunate, by-product of the present system is the unavailability of adequate data concerning the medical status and piloting performance of air carrier pilots past the age of 60 since, under the age 60 rule, persons have not been permitted to continue as air carrier pilots past that age.

NIA/IOM Report at 2 [6]

            And further:

... The Panel was compelled by the available data to recommend that the age 60 rule be retained and extended to pilots in part 135 operations, ...

NIA/IOM Report at 4, underlining added

            And yet further:

Both the IOM Committee and this Panel have attempted, by every means available to them, to secure and utilize data directly relevant to the questions at hand.  This undertaking met with only limited success for three reasons:  1) adequate data have not been collected; 2) in instances where data have presumably been gathered, they are not available; and 3) some relevant data -- gathered for other purposes -- have not been analyzed in line with the questions facing this Panel.

NIA/IOM Report at 17

            In 1990, on behalf of the EEOC's continuing litigation against mandatory age 60 retirement in the corporate world,[7] the Director of the NIA (Dr. T. Franklin Williams) disclosed that the FAA had secured its desired recommendation to retain the rule only by misleading the NIA/IOM Panel into believeing that FAA would immediately thereafter grant the additionally recommended exemptions:

The NIA Report represented a compromise intended to produce incremental change by the FAA.  At the time the NIA Report was issued, many of its members, if not all, believed that the FAA had already informally agreed to institute a program of post-60 piloting as recommended.

Declaration of Dr. T. Franklin Williams, at 5

            This revelation is presented in a thorough discussion by the Director of the NIA of the history behind the NIA/IOM Panel's findings, the Panel's recommendation to retain the rule, the FAA's response to the Panel's recommendations, and the national scientific agencies' response to the FAA's inaction.  (Id. at 2-7)  The Director disclosed that when the Panel realized the FAA had reneged on its implied promise to grant the waivers and begin collection of the data as recommended, the agencies involved withdrew that recommendation:

The NIA formally abandoned in 1985 the position of the NIA Report when I testified, on October 16, 1985 before the House Select Committee on Aging ... that it was the official position of the NIA that testing of pilots after age 60 was feasible and desirable, could be used to allow them to safely continue flying in commercial aviation, and was recommended as the preferred present alternative to the Age 60 Rule.  ...

Id., at 6

            Dr. Williams went on to reveal that this announced reversal had been coordinated with, and approved by the NIH Office of Legislative Analysis, the Public Health Services, and the Department of Health and Human Services - all of the agencies involved in preparation and promulgation of the original position in 1981.

FAA Disingenuously Misrepresents the NIA/IOM Report
with a Description of the Golaszewski Flight Time Study

            In its "Notice," of April 20, FAA incorrectly describes the NIA/IOM study with these three sentences:

The NIH study included data collected from 1976-1980 and was obtained from FAA medical records and from a [NTSB] data base.  The study compared the accident rates for each age group after adjusting for the amount of total and recent flying done by different age groups.  The methodology expressed accident rates as the number of accidents per flight hour.

58 Fed. Reg. 21336

            The Booze study (the basis for much of the NIA/IOM Report, including the Report's "Figure 2") considered only data from calendar year 1974 (not 1976-1980).  The Booze study considered age only in conjunction with the subject airman's normal (non-flying) occupational category - not as an independent variable (as did Golaszewski).  Moreover, the Booze study considered experience not from the perspective of increasing skill that would reduce risk, but rather increased exposure providing greater opportunity to accumulate risk (reference Fig. 5 & 6 of the Booze study at pp. 10 and 11, respectively).  And again, both the NIA/IOM Report and the Booze methodology expressed their "rate" data as "per 1000 pilots," not "per flight hour" (reference again Booze's Fig. 5 & 6, pp. 10, 11 and Figure 2 of the NIA/IOM Report - all "per 1000 pilots").

            The same three sentences, however, correctly describe the Golaszewski Flight Time Study, and were clearly lifted almost verbatim from the FAA's brief to this court in Baker:

The Flight Time Study collected data covering the years 1976 through 1980 obtained from FAA medical records and from a [NTSB] data base.  The Flight Time Study compared the accident rates for each age group after adjusting for amount of total and recent flying done by different age groups.

The methodology used in the Flight Time Study ... expresses accident rates as the number of accidents per flight hour.

Brief of Respondents, Baker v FAA at 6

FAA Has Admitted, Repeatedly, That
its Only Real Basis for the Rule is  "Economic"

            Prior to its refusal to grant the exemptions that returned the issue to this court in Aman, the FAA's Federal Air Surgeon (Dr. Frank Austin), his Deputy (Dr. Jon Jordan - the current Federal Air Surgeon), and the Administrator (Adm. Donald Engen) have admitted, both publicy and privately, that there was no medical basis for the Rule, asserting that it was an economic issue maintained by the FAA only for the various industry carriers' scheduling convenience.

            In a letter from Dr. Stan Mohler, Director, Aerospace Medicine, Wright State University, Dayton, Ohio, Federal Air Surgeon Frank Austin agreed that "[t]here is no medical basis for the age 60 rule" by adding the comment (in his own hand) "True in 1984."  At the end of that letter, Dr. Austin also added:

I believe this and [FAA Administrator] Adm. Engen believes this.  He wants to keep the age 60 rule now.  I will support the admiral in his position.  When it can be done - age 60 will be eliminated (I think!)  Its an ECONOMIC Issue!  FA

Declaration of Frank H. Austin, M.D., for the EEOC in EEOC v Lockheed, CV No. 90-5253, executed October 15, 1990 (emphasis in the original)

            In meetings arranged by Congressman Edward Roybal, Chairman, Select Committee on Aging, Drs. Austin and Jordan and Administrator Engen all conceded there to be "no longer a medical basis for the regulation," but that the FAA "[did] not want to burden the airlines administratively with a new personnel task of integrating the over 60 years of age pilots."  (Letter, Dr. Stan Mohler to Samuel D. Woolsey dtd. Nov. 8, 1991)

            These same admissions were made, as well, to Congressman Roybal.  As a result, the Chairman scheduled hearings by the Select Committee on Aging for October, 1985.  As it had done repeatedly before, however, FAA again hardened its position in advance of these hearings.  The FAA's reversal was so abrupt and so angered Chairman Roybal that he responded to Administrator Engen:

Thank you for your letter of February 25, 1985.  In view of the meeting held in my office on February 7, 1985, I am somewhat disconcerted by your letter.  It was as though we had attended different meetings on February 7th.

Having heard you say on February 7, 1985 that you were not concerned by the threat of cardiovascular incapacitations, and Dr. Austin agreeing with the doctors present that there are tests which can determine the physical fitness of pilots over age 60, I was surprised to read your comments.

. . . . .

In closing, I would like to indicate my personal concern that your letter of February 25, does not appear to be responsive to my request of February 14, 1985.

Letter, Congressman Edward Roybal, Chairman, Select Committee on Aging to Adm, Donald Engen, Administrator, FAA dtd March 20, 1985.  Underlining added.

            Congressman Roybal inserted the entire exchange into the hearing record, where it appears at pp. 106-116, Comm. Pub. No. 99-533.  The quoted passage appears at p. 111, 112

The FAA's Actions in its 35-Year Unwavering Defense
of the Age 60 Rule Rise to the Level
of Affirmative Misconduct

            Before remanding to the EPA for a second time in 1973, the D.C. Circuit admonished that in matters of public interest, "the court and agency are in a kind of partnership relationship for the purpose of effectuating the legislative mandate."  Portland Cement Assn. v Ruckelshaus, 486 F.2d 375, 394 (D.C.Cir., 1973), cert. denied 417 U.S. 921 (1974)  There, the record before the court was merely inadequate (perhaps even slothful) in its failure to address the issues as ordered on the prior remand.  (Id. "The purpose of our prior remand cannot be realized unless we hear EPA's response to [comments in the original record], and the record must be remanded again, for that purpose.")

            The FAA's position here is not, however, one of passive inaction, it is one of active obstructionism.  Such is conduct - indeed misconduct, even affirmative misconduct.  In Portland Cement, the EPA had been merely silent on the issue remanded, it had not presented to the reviewing court (as the FAA has done here) a "scientific" study so obviously flawed that even the court perceived its errors, and found its conclusions "not credible" (a study that the FAA knew had been rejected by its own technical experts and discredited by the scientific community at large).  The EPA had not misrepresented (as the FAA has done here) both the scope and findings of a study (the NIA/IOM Report) ordered and funded by the Congress.  The EPA had not (as the FAA has done here) misled the NIA/IOM's "panel of experts" to secure the recommendation it sought, and then reneged on the promises it had given in return.  Before its court, the EPA had been merely silent. The EPA had not lifted statements correctly describing a study it knew to be worthless (as the FAA has done here), advancing them in the Federal Register to incorrectly describe findings over which it had no control.  The EPA had not (as the FAA has done here) actively supported and advanced an agenda that, by its own admission, its highest officers disbelieved.

            Petitioners in the instant action have requested that in the alternative, this court order a response by the agency within sixty days.  Such would be a grave error, as it would place development of the record that this court must eventually review into the hands of the agency that has actively misled the Congress, the scientific community, the public, and even this court!  The special "partnership relationship" cited in Portland Cement prompting that court's deference to the administrative agency's expertise and obligations requires, in return, the agency's respect for the court and the court's duty, as well as honesty in the agency's pursuit of the public interest.  Where, as here, that respect and honesty are lacking, such reliance would be grievously misplaced.

CONCLUSION

            This court should grant the declaratory judgements as requested, and issue a writ of mandamus directing the district court to oversee discovery such that petitioners may thereafter file their appeal to this court on the basis of an honest, rational record.  A decision for the alternative relief sought, a writ directed to the FAA, would be counterproductive and should be rejected.

 

Respectfully submitted:

_________________________________
Samuel D. Woolsey, Amicus Curiae
14 Creekwood Ct.
Danville, CA  94526
(510) 837-3287

 

CERTIFICATE OF SERVICE

            I certify that on December ______, 1994, I served one copy of the foregoing "Curiae Submission by Samuel D. Woolsey" upon the following counsel by first class mail:

Christine N. Koll, Esq.
Department of Justice
Appellate Division, Civil
Room 3617
Washington, D.C.  20530-0001

Michael J. Pangia, Esq.
Gilman, Pangia & Balsamo
1815 H Street, NW, Suite 600
Washington, D.C.  20006

Mark Goodrich, Esq.
Goodrich & Associates
3431 Skyline Boulevard
Reno, Nevada  89509

John Coleman, Esq.
Coleman & O'Halloran, Ltd.
33 North Dearborn Street
Suite 1301
Chicago, Illinois  60602

Nicholas H. Cobbs, Esq.
Law Offices of Nicholas H. Cobbs
1815 H Street, NW, Suite 600
Washington, D.C.  20006

 

 

________________________________
Samuel D. Woolsey

 


[1]     Letter, Samuel D. Woolsey to John Cassady, Deputy Chief Counsel, FAA, dtd April 25, 1994

[2]     In ALPA v Quesada, 182 F.Supp. 595, 596 (S.D., N.Y., 1960), the District Court began its rejection of petitioner's request for injunctive relief by extolling Administrator Quesada's WWII exploits, referencing the position taken by the Air Transport Association, citing a newspaper editorial from the Washington Post, and quoting a wealthy financier/philanthropist, Harry F. Guggenheim.  (On appeal, the FAA's action was upheld under a rational basis standard of review as a reasonable exercise of its informal rulemaking powers.  (ALPA v Quesada, 276 F.2d 892 (2d. Cir., April 21, 1960))

       In Starr v FAA, 589 F.2d 307 (7th Cir., 1978), this court commented that "[a]s things are now, if the Age 60 Rule is reasonable, as it has been held to be, it is not abuse of discretion to reject any individual application for exemption even if the applicant demonstrates that he personally is a superman immune from the impairments that age normally inflicts."

       In Baker v FAA, 917 F.2d 318, 322 (7th Cir., 1990), this court finally expressed its own growing impatience with the FAA's obvious refusal to accept reality, but again placed a standard of proof upon the petitioners that even the court recognized as impossible because of the "Catch 22" trap in which the FAA held the petitioners.

[3]     The total, 3-year effort was titled simply "Age 60 Project."  It included five separate portions: (1) a review of the literature; (2) a statistical analysis of accident rates (the Consolidated Database portion); (3) development of a "desktop" test protocol for the prospective evaluation of pilot fitness; (3) "normalizing" the protocol results, and (5) validation of the protocol by comparison against flight profiles in a fully instrumented, full motion (six axis), computer generated imaging visual, sound replicated (i.e., "virtual reality") simulator.

       All portions of the study were completed in 1992.  The manager of the final simulator validation phase of the project, Alfred Hendrix, was quoted in the AARP Bulletin (February, 1993) as stating that the study had "found no correlation between pilot age and accidents until about age 70."

       The entire project was available for public review and comment when the FAA's "Notice" was published in April, 1993.  No reason has ever been offered for excluding the other portions of the project from the public review process.

[4]     Booze, C.F., An Epidemiological Investigation of Occupation, Age, and Exposure in General Aviation Accidents, FAA Office of Aviation Medicine, AM-77-10, March 1977, at 5, 6

       The primary purpose of the Booze study was to examine general aviation pilot accident experience by their non-pilot (primary) occupational categories.  It had been earlier noted that certain occupations and professions had greater than expected accident rates, and hypothesized that "personality traits" inherent to these groups were "important in the etiology of accidents."  (at 4)  Age was not examined independently, but only in conjunction with the various primary occupational perspectives.

       It was thus questionable, at best, for the NIA/IOM Panel to rely on this data for its conclusions - particularly for air carrier pilots and piloting.  The Panel's motivations are discussed more fully below.

[5]     With respect to Recommendation #3 (to extend the rule to commuter (Part 135) carriers), the Panel noted that: "Recent accidents among commuter airlines motivated the [NTSB] to recommend that a maximum allowable age for pilots in part 135 operations be instituted by the FAA.  Action on this recommendation is still pending [in 1981]."  (NIA/IOM Report at 4)  FAA disposed of it with one sentence: "At this time, the FAA is not considering the panel's third recommendation  and it is not a part of this rulemaking action."  (47 Fed. Reg. 29783, July 8, 1982)

       The recommendation is still pending today, thirteen years later.

[6]     This observation preceded by almost 10 years this court's later recognition in Baker of the "Catch 22" position facing petitioners!

[7]     Although the Age 60 Rule had been disclaimed by the EEOC as a BFOQ for pilots and piloting (46 Fed. Reg. 47725 (Sept. 29, 1981)), corporate defendants were still advancing the Rule in defense of their mandatory age-60 retirement practices.  Through an extensive litigation effort, EEOC has successfully overturned such policies throughout the non-Part 121 industry.  Ironically, FAA has never subscribed to the rule for its own pilots - even though they fly the same aircraft into and out of the same airports as do the commercial carriers made subject to the Rule.