FAA Mandatory Pilot Retirement Rule Challenged

Here we go again:



http://www.time.com/time/nation/arti...0.html?cnn=yes

Southwest Crosses Into the Gray

The airline will support a waiver to a rule forcing all pilots to
retire at age 60

By SALLY B. DONNELLY AND ERIC ROSTON

Saturday, Mar. 19, 2005
For more than four decades the Federal Aviation Administration has
forced airline pilots to retire at age 60. The so-called "Age 60 rule"
was adopted with virtually no medical data to support it then, and,
critics say, it remains in place today despite studies that show that
older fliers can still be capable pilots. The experience of major
carriers outside the U.S. confirms that qualified pilots over age 59
continue to fly safely, and the FAA has not identified a single
airliner accident in the U.S. attributable to the age of a pilot. But
airlines have continued to support the rule, in part, critics charge,
in order to get their most highly-paid employees off their books
early. The FAA stands by arguments made during the 1959 rulemaking
process that people lose critical cognitive and motor skills as they
age. The powerful Air Line Pilots Association (ALPA) has also argued
to keep the rule in order, some say, to keep its younger members
happy. The FAA and Congress have been unwilling to question the status
quo.

But the Age 60 rule may soon become a relic of the past. Last week a
group of twelve pilots asked the Supreme Court to review their
challenge of the Age 60 regulation in which they ask for waivers to
the rule. On Capitol Hill, influential Congressman John Mica, a
Florida Republican who heads the House aviation subcommittee, says he
will hold hearings on the topic. Even the ALPA is considering
reviewing its stance.

Now the big guns are coming out. Next week, TIME has learned,
Southwest Airlines will file a friend of the court brief in support of
the pilots' challenge. For Southwest, one of the nation's biggest
airlines and one which, remarkably, has never had a fatal accident in
its thirty years of flying, to be the first major airline to take such
a decisive step puts real momentum behind the move to throw out the
Age 60 rule. "Times are changing," says Southwest spokesman Linda
Rutherford. "We are losing some really good pilots."

Supporters of changing the rule point out that airline pilots are some
of the most closely monitored people in the world: they receive two
physical examinations, two to three 'check' rides where their pilots
skills must meet FAA standards and at least one recurring training
session ground school per year. On top of that, pilots are required to
watch each other and report if there are problems that could affect
safety in any way. "If rigid enforcement of the age 60 rule ever
served any valid purpose—a doubtful proposition at best—it certainly
outlived its usefulness long ago," says Tony Bothwell, the attorney
representing the pilots' challenge.

With Southwest on board, passengers may start to see some of that gray
hair sitting up front—and not just in First Class.

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The FAA first promulgated the Age 60 Rule in 1959 pursuant to its
mandate under the Federal Aviation Act of 1958 to ensure air safety.
24 Fed. Reg. 9767 (December 5, 1959). See 49 U.S.C. § 44701(a)(4)
(authorizing Administrator to promulgate "regulations in the interest
of safety for the ... periods of service of airmen"); 49 U.S.C. §
44701(c) (requiring Administrator to regulate "in a way that best
tends to reduce or eliminate the possibility or recurrence of acci-
dents in air transportation"); 49 U.S.C. § 44702(b)(1)(A) (requiring
Administrator to consider "the duty of an air carrier to provide
service with the highest possible degree of safety" when issuing an
airman, air carrier, or other certificate); Air Line Pilots Ass'n,
Int'l v. Quesada, 276 F.2d 892, 897-98 (2d Cir. 1960). The agency
concluded that the Rule would promote air safety after finding "that
available medical studies show that sudden incapacitation due to heart
attacks or strokes becomes more frequent as men approach age sixty and
present medical knowledge is such that it is impossible to predict
with accuracy those individuals most likely to suffer attacks."
Quesada, 276 F.2d at 898. The Second Circuit, reasoning that it was
not for a court to substitute its own "untutored judgment for the
expert knowledge" of the agency, accepted this conclusion and
dismissed an early challenge to the Rule. Id.

The FAA has reconsidered the Rule on several occasions. In the early
1960s, the agency began, but never completed, a study to determine the
feasibility of testing individual pilots over the age of 60 in order
to determine whether they remained fit to fly. See Aman v. FAA, 856
F.2d 946, 948 (7th Cir. 1988). In 1970 the Air Line Pilots Association
called upon the FAA to replace the blanket prohibition of the Age 60
Rule with a regime of individualized performance tests and medical
evaluations, but the agency decided to retain the Rule because "an
increase in the number of medical examinations administered to a given
pilot ... would not be an effective deterrent to incapacitation
inasmuch as the indices of such incapacitation are not now
sufficiently developed." See O'Donnell v. Shaffer, 491 F.2d 59, 61
(D.C. Cir. 1974). In 1979 the Congress directed the National
Institutes of Health to determine whether the Rule was still medically
warranted. See Pub. L. No. 96-171, 93 Stat. 1285; see also Pilots
Rights Ass'n v. FAA, 86 F.R.D. 174, 176 (D.D.C. 1980). In its final
report, the NIH concluded that there was "no special medical
significance to age 60 as a mandatory age for retirement of airline
pilots" but recommended that the age 60 limit be retained nonetheless
because there was still no "medical or performance appraisal system
that can single out those pilots who would pose the greatest hazard
because of early, or impending, deterioration in health or
performance."

Report of the National Institute on Aging, Panel on the Experienced
Pilots Study 1 (August 1981). In 1982 the FAA considered relaxing the
Rule in order to allow a small group of pilots to continue flying
until age 62 in order to generate data on their performance under
actual operating conditions. 47 Fed. Reg. 29,782 (July 8, 1982). The
FAA ultimately determined, however, that "no medical or performance
appraisal system can be identified that would single out pilots who
would pose a hazard to safety." 49 Fed. Reg. 14,692, 14,695 (April 12,
1984). Unable "to distinguish those pilots who, as a consequence of
aging, present a threat to air safety from those who do not," the
agency decided not to experiment with changing the Rule. Id. The
present litigation was stimulated, at least in part, by a 1993 study
of the Age 60 Rule that was performed by Hilton Systems, Inc. for the
FAA's Civil Aeromedical Institute. The Hilton Study correlated
accident data for the period from 1976 to 1988 with pilot age and
flying time. This analysis revealed "no support for the hypothesis
that pilots of scheduled air carriers had increased accident rates as
they neared the age of 60." Hilton Study at 6-2. On the contrary, the
study found a "slight downward trend" in accident rates as pilots
neared the age of 60. The authors cautioned, however, that this
decrease might have resulted from "the FAA's rigorous medical and
operational performance standards screen[ing] out, over time, pilots
more likely to be in accidents."

Shortly after publication of the Hilton Study the FAA announced that
it was again considering whether to institute a rulemaking concerning
the Age 60 Rule and invited comments from the public on various
aspects of the Hilton Study. 58 Fed. Reg. 21,336 (April 20, 1993). The
agency held a public hearing in September 1993 at which 46 members of
the public made presentations. The agency also received more than a
thousand written comments. In July 1993 the Professional Pilots
Federation filed with the FAA a rulemaking petition to repeal the
Rule. The Pilots maintained that "time and empirical evidence have
shown that the blanket elimination of the country's most experienced
pilots is not justified in the interests of safety and, therefore, is
arbitrary and capricious, and violates this country's policy of
prohibiting employment discrimination on the basis of age." In early
1995 after a series of accidents involving commuter airlines, the FAA
proposed in a separate rulemaking to bring certain commuter
operations, previously conducted under Part 135, under Part 121. 60
Fed. Reg. 16,230 (March 29, 1995). These operations would then become
subject to the more stringent safety standards of Part 121, including
the Age 60 Rule, relaxation of which the agency was still considering
in the wake of the Hilton Study.

In December 1995 the FAA denied the Pilots' petitions to repeal the
Age 60 Rule and decided not to institute a rulemaking in response to
the Hilton Study. 60 Fed. Reg. 65,977 (December 20, 1995). The agency
determined that the "concerns regarding aging pilots and underlying
the original rule have not been shown to be invalid or misplaced," and
concluded that the Rule was still warranted as a safety measure. Id.
at 65,980. The FAA therefore retained the Rule, which provides that:

No certificate holder may use the services of any person as a pilot on
an airplane engaged in operations under [Part 121] if that person has
reached his 60th birthday. No person may serve as a pilot on an
airplane engaged in operations under [Part 121] if that person has
reached his 60th birthday. 14 CFR § 121.383(c) (1996).

In addition the FAA adopted its proposed rule bringing under Part 121
certain commuter operations previously conducted under Part 135.60
Fed. Reg. 65,832 (December 20, 1995). As a result, these commuter
operations became newly subject to the Age 60 Rule. The Pilots
petitioned this court for review of both rulemaking decisions.

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