Henry J. WEILAND, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
No. 11-56088.
United States Court of Appeals, Ninth Circuit.
March 2, 2015.
Argued and Submitted Feb. 2, 2015.
Robert Jon Hendricks (argued) and Larry M. Lawrence, Morgan, Lewis & Bockius, Los Angeles, CA; Donald L. Havermann, and David R. Broderdorf, Morgan, Lewis & Bockius, Washington, D.C., for Defendant-Appellee.
Before: Stephen Reinhardt and Ronald M. Gould, Circuit Judges, and J. Frederick Motz, Senior District Judge.
Judge REINHARDT dissented because he would hold that Weiland qualified for the exception in
OPINION
MOTZ, Senior District Judge:
This case involves a difficult question of statutory construction that may currently apply only to a class of one. Although somewhat uncomfortable with the conclusion we reach, we hold that Plaintiff Henry Weiland, who turned 60 six days before the FAA‘s Age 60 Rule was abrogated by the Fair Treatment for Experienced Pilots Act (“FTEPA“), does not qualify for one of the FTEPA‘s exceptions to non-retroactivity. The district court reached the same result, and its decision is affirmed.
I.
Until December 13, 2007, airline pilots at air carriers operating under
(A) such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member;
Weiland was a check airman when he turned 60 on December 7, 2007. American‘s Collective Bargaining Agreement (“CBA“) defined a check airman “as a pilot who is on Check Airman salary for the month.” As pleaded in his complaint, Weiland‘s duties as a joint check airman/pilot included evaluating pilots in land-based simulators and in the air during cockpit “line checks,” and piloting aircraft.
The Age 60 Rule was in effect on December 7 when Weiland turned 60 and
II.
We review de novo the district court‘s granting of a motion to dismiss for failure to state a claim. See Balistreri v. Pacifica Police Dep‘t, 901 F.2d 696, 699 (9th Cir. 1988). “We accept as true all well pleaded facts in the complaint and construe them in the light most favorable to the nonmoving party.” Zadrozny v. Bank of New York Mellon, 720 F.3d 1163, 1167 (9th Cir. 2013) (internal citation omitted).
III.
Weiland‘s claims for relief depend on qualifying for the (e)(1)(A) exception to the FTEPA‘s non-retroactivity clause.1 The exception can be divided into three elements: (1) “in the employment of that air carrier,” (2) “in such operations,” and (3) “as a required flight deck crew member.” These terms are undefined in the statute, and there is no legislative history shedding light on their meaning. We therefore must interpret the statutory language in a vacuum. We find that while Weiland was employed by American, he was not employed “in such operations” and was not a “required flight deck crew member.”
Weiland‘s complaint does plausibly plead that he was “in the employment of” American on December 13. Although undefined by the FTEPA, the plain meaning of “employment” is commonly understood as receiving compensation in return for work. Here, Weiland was employed by American on December 13 as an inactive check airman/pilot. American did not terminate Weiland‘s employment on December 7; it only ceased scheduling him for check airman and pilot duties pursuant to the FAA‘s Age 60 Rule then in effect. His retirement date was not until January 1, 2008 pursuant to American‘s policy. The record is unclear when Weiland received his final paycheck, but we note that the California Unemployment Insurance Appeals Board found Weiland‘s “end of employment date” was after December 24, 2007 for purposes of calculating his unemployment insurance. That finding provides further support for concluding that Weiland was employed by American on December 13. Moreover, presumably he continued to be eligible for employee benefits provided by American.
Section 44729(e)(1)(A) does not simply say, however, that a person must be “in the employment” of an air carrier on the date of the enactment of the FTEPA in order to qualify for the exception to non-retroactivity. It says that the person must be “in the employment of that air carrier in such operations.” (emphasis added). “Such operations” refers back to the language “covered operations” used in
Likewise, it cannot be said that Weiland was “a required flight deck crew member” on December 13, 2007. As a pilot and check crew airman, he certainly fell in the class of “required flight deck crew member.” See Emory v. United Air Lines, Inc., 720 F.3d 915, 926 n. 17 (D.C. Cir. 2013) (“Pity the passengers on a plane with an ‘optional’ pilot.“). But, by virtue of the FAA‘s Age 60 Rule in effect when he turned 60 on December 7, 2007, Weiland also fell within a subclass that was excluded from the general class of “required flight deck crew member.” Not only was he not a “required flight deck crew member,” he was, as of December 7, 2007, prohibited from being a “flight deck crew member.” That was the holding of the district court, and albeit reluctantly, we believe the district court was correct.2
IV.
Because Weiland did not qualify for an exception to the FTEPA‘s non-retroactivity, its abrogation of the FAA‘s Age 60 Rule is inapplicable to Weiland, who turned 60 on December 7, 2007. American acted “in conformance” with both the Age 60 Rule and the FTEPA when each was in effect, thereby immunizing American from any civil liability. See
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
“No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless . . . such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member.”
Statutory construction is frequently not easy. For that reason I set forth the sentence we are construing at the top of this dissent. In this case, however, a plain reading of the statutory language would seem to provide a clear answer to the question before us. Henry Weiland was “in the employment” of American Airlines on December 13, 2007. American Airlines was at the time engaged in part 121 operations, so that it was “in such operations” for purposes of
The majority argues that Weiland could not have been employed “in such operations” because he “could not have been lawfully engaged in any such operations on December 13, 2007.” The phrase “in such operations” in
Even were we to assume that “in such operations” refers to Weiland, however, that section does not say that in order to qualify for the exception a person must be actually “engaged,” or even “able to lawfully engage,” in covered operations on the date of enactment. It only says that such person must be “in the employment of” the airline in covered operations on that date, and all parties agree that Weiland was in the employment of American Airlines on the relevant date. Aside from the Rule of 60, there are many reasons why an otherwise qualified pilot in the employment of an airline may not be able to lawfully operate a commercial aircraft on a given day. For example, he may have flown on a number of days or hours the preceding day or days that required him to be off duty on the day in question. See
The majority also argues that Weiland was not a “required flight deck crew member” because far from being “required” he was in fact “prohibited from being a ‘flight deck crew member.‘” The question, however, is not whether Weiland was himself
I doubt that is what Congress intended, and it is certainly not what it wrote in the statute. The exception it made for pilots who were 60 as of the date of enactment and employed by the air carrier on that date fits Weiland to a T. I respectfully dissent.