Justices Won't Review Pilots' Challenge To Non-Retroactivity Law Raising Age Limit

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By Kevin P. McGowan  

March 24 --Denying a petition by former commercial airline pilots who turned age 60 before Dec. 13, 2007, the U.S. Supreme Court March 24 declined to review a federal appeals court decision that a 2007 statute raising the cut-off age for pilots from 60 to 65 but applying prospectively only did not violate the over-60 pilots' constitutional rights.

Without comment, the court denied review of a 2013 U.S. Court of Appeals for the District of Columbia Circuit ruling that the Fair Treatment for Experienced Pilots Act did not violate the U.S. Constitution's equal protection, due process or bill of attainder clauses to the extent it didn't apply retroactively to commercial pilots who turned 60 prior to the law's Dec. 13, 2007, effective date and were grounded under the Federal Aviation Administration's prior age 60 rule.

On March 10, the justices had denied review of a separate challenge to the D.C. Circuit's ruling by eight former United Air Lines employees who had unsuccessfully argued the airline and the Air Line Pilots Association violated the Age Discrimination in Employment Act by forcing them to retire as pilots because they turned 60 during December 2007.

Clash Over Constitutional Issues

In seeking review, the Adams plaintiffs contended the D.C. Circuit's ruling conflicts with Supreme Court precedents on adjudicating equal protection and bill of attainder claims.

The D.C. Circuit “adopted a highly abridged approach” to “rational basis” review under the equal protection clause by accepting the Justice Department's argument Congress permissibly acted to preserve workplace harmony in commercial airlines by not allowing over-60 pilots to return with full seniority and supplant younger pilots, the petitioners said.

“Congress never uttered a word about 'workplace harmony,' and the ALPA publicly admitted to drafting the two provisions to strip senior pilots of their status, benefits and seniority,” the petitioners said. “The [D.C. Circuit] panel instead declared the favoritism shown one group to be nothing more than achieving 'harmony' by eliminating a competing group of pilots.”

In a brief opposing review, the solicitor general said the D.C. Circuit “correctly applied constitutional principles.” Absent any federal circuit conflict on the issues presented, the Justice Department said no grounds exist for Supreme Court review.

The D.C. Circuit's decision that the FTEPA's non-retroactivity and compliance protection provisions are constitutional is consistent with the only other federal appeals court decision addressing the act's constitutionality, the solicitor general said, citing Avera v. ALPA, 436 F. App'x 969, 113 FEP Cases 25 (11th Cir. 2011).

Court Found No Punitive Intent

The petitioners in Adams are about 200 former pilots who originally sued to challenge the FAA rule requiring commercial pilots to stop flying at age 60 and whose airlines had grounded them at age 60 because of the FAA rule.

A federal district court in Washington rejected the pilots' challenge to the FAA rule, saying deference was required to the federal agency's judgment on a matter of airline safety regardless of the pilots' evidence suggesting no diminution in their skills at age 60.

While the pilots' appeal was pending before the D.C. Circuit, in December 2007 Congress passed and the president signed the FTEPA, which raised to 65 the maximum age for commercial airline pilots.

The FTEPA included a non-retroactivity provision and a “protection for compliance” provision, which said any action taken to comply with regulations applying the new law or to comply with the FAA's prior age 60 rule couldn't “serve as the basis for liability or relief” in any proceeding brought under “any employment law or regulation.”  

But the FTEPA provided that no person who turned 60 before the act's Dec. 13, 2007, effective date could serve as a commercial pilot unless that person was working as a “required flight deck crew member,” such as a flight engineer, as of Dec. 13, 2007, or the over-60 person was “newly hired” by an airline “without credit for prior seniority or prior longevity” for benefits or route-bidding purposes.

The new law also included a “protection for compliance” provision, which said any action taken to comply with regulations applying the new law or to comply with the FAA's prior age 60 rule couldn't “serve as the basis for liability or relief” in any proceeding brought under “any employment law or regulation” before “any court or agency.”

The D.C. Circuit in 2008 dismissed the Adams plaintiffs' challenges to the FAA age 60 rule as moot in light of the FTEPA.

After the plaintiffs filed a new lawsuit challenging the FTEPA's non-retroactivity and protection for compliance provisions, the D.C. Circuit consolidated the case on appeal with Emory v. United Air Lines, the ADEA suit filed by the former United pilots.

In its June 2013 opinion, the D.C. Circuit said the Adams plaintiffs lacked an equal protection claim because Congress had a rational basis for making the FTEPA prospective only, subject to the two narrow exceptions.

The appeals court said the Adams plaintiffs also lacked a bill of attainder clause claim because they can't show Congress intended to punish a discrete group of people when it legislated that over-60 pilots who had been grounded under the FAA rule before Dec. 13, 2007, couldn't return to flying commercial jets unless they were willing to do so as new hires without accrued seniority.

Flawed Analyses of Claims

The challenged FTEPA provisions resulted from a lobbying effort by ALPA to block senior pilots who sought continued employment and to protect the jobs and bidding rights of younger commercial airline pilots, the Adams plaintiffs said in their Supreme Court petition.

The D.C. Circuit departed from Supreme Court precedent by “assuming contested facts” in summarily dismissing the equal protection claim, the former pilots said.

The appeals court credited the Justice Department's contention that preserving workplace harmony was a rational basis for the FTEPA's non-retroactivity provision even though no member of Congress ever mentioned that purpose when the act was being passed, the petitioners said.

The D.C. Circuit “refused to consider the stated purpose of the law as drafted by ALPA to advantage its member pilots by targeting the senior pilots,” the petitioners said.

Instead, the appeals court “ignored this express statement and instead read into the legislation a [congressional] purpose that was neither stated nor credible,” the petitioners said.

The appeals court decision also “stands in direct contradiction” to prior Supreme Court rulings that define “the three tests for the punishment component” of the Constitution's bill of attainder clause, which prohibits legislation intended to punish a specific person or identifiable group without the right to trial, the petitioners said.

The D.C. Circuit decision “nullifies the protections against bills of attainder and virtually invites Congress to use the same technique in the future to curry favor with powerful groups by stripping competitors of benefits and status,” the petitioners said.

The Supreme Court should grant review, reverse the D.C. Circuit and remand so the lower courts can apply the proper equal protection and bill of attainder analyses to the former pilots' challenges to the FTEPA provisions, the petitioners said.

Jonathan Turley in Washington was counsel of record for the former pilots.

DOJ Says Case Is Poor Vehicle

In opposing review, the Justice Department said the Adams case isn't a “proper vehicle” for reaching the merits of any of the constitutional issues raised given that the petitioners are now all older than age 65 and couldn't pilot commercial jets even if the lower courts ruled in their favor. The petitioners seek only equitable relief and no damages, the DOJ noted.

Even assuming mootness does not block the former pilots' constitutional claims, the DOJ said the D.C. Circuit's decision dismissing those claims wasn't erroneous.

The appeals court correctly concluded the FTEPA's non-retroactivity provision has a rational basis, the DOJ said.

“That provision made the new age limitation non-retroactive with limited exceptions; greater retroactivity would have resulted in changing the established order of seniority and perhaps even in the firing of junior pilots, thus upsetting settled expectations,” the DOJ said. “Accordingly, as the court of appeals explained, the non-retroactivity provision rationally reflected concern about disharmony in the workplace and 'potential disruption to labor relations.' ”

The D.C. Circuit also applied the correct test for a bill of attainder but reached a result with which the petitioners disagree, the DOJ said.

“As the court of appeals correctly recognized, the flaw in petitioners' bill-of-attainder challenge here is simple: nothing in the challenged provisions [of the FTEPA] can plausibly be characterized as 'punishment,' ” DOJ said.

Solicitor General Donald B. Verrilli was counsel of record for the Justice Department.


To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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