Professional Pilots Federation v. Federal Aviation Administration

Terry, nowadays “it 704(b)); decided could well be distributors did not violate Rule Williams, foolhardy United States v. for an officer assume otherwise.” 1463, 980 F.2d Id. We therefore conclude that (D.C.Cir.1992) (same), Officer provided that he approach Conyers’ Holmes’ decision to auto- speak directly does not guilt or inno- weapon mobile with his drawn was reason- cence of the accused. United States v. Mitchell, ably necessary protection. for his own (D.C.Cir. 419, 421-22 F.2d 1993). case, In government this witness sum, we conclude that neither the offi- did not run afoul of that distinction. placing police cers’ cruiser in front of Con- yers’ approaching Conyers car Holmes’ nor weapon

with his drawn transformed this in- III. Conclusion vestigatory stop into an arrest. reasons, foregoing For the judgment respects the district court inis all Testimony B. Expert Witness Affirmed. Conyers argues that the district court by allowing erred expert the Government’s testify packaging

witness to that the

drugs possession found in his revealed an

intent drugs, to distribute those sup and to

port by observing this conclusion that “the

weapon appellant’s person recovered proof experienced

was further that he was an

drug According Conyers, dealer.” Rule 704(b) of the Rules Federal of Evidence PROFESSIONAL PILOTS “prohibited the from eliciting Government FEDERATION, al., et testimony, this and the district court erred Petitioners receiving considering such evidence as proof of the element of criminal intent on the appellant.” FEDERAL AVIATION ADMINISTRATION, expert

The Government counters that its Respondent. any opinion witness did not offer about the expert intent of the defendant. The testified 95-1604, Nos. 96-1025 and 96-1026. packaging the sort of Conyers used was “consistent with distribution in the Dis- United Appeals, States Court of Columbia,” trict of Magnum .357 District of Columbia Circuit. is the among revolver of choice drug local dealers. Argued The Government contends Oct. 1996. type testimony, offered in order to estab- July Decided 1997. lish comports that certain conduct with es- behavior, patterns tablished of criminal does 704(b)

not violate Rule of the Federal Rules testimony may Evidence “even where such

support appellant’s an inference of intent.”

We conclude that the trial court’s ad

mission expert’s testimony did not 704(b).

violate expert Rule An witness

testify about practice among established trade,

individuals see drug involved Dunn,

United States v. 762- (D.C.Cir.1988) (expert testimony that

packaging paraphernalia, such as vials and paper

wax bags, were among drug common Kohl, Attorney,

Christine N. Depart- U.S. Justice, DC, Washington, ment of argued the respondent, cause for with whom Frank W. Hunger, General, Attorney Assistant Wash- DC, ington, Greenspan, Robert S. Attor- ney, were on the brief.

Edgar N. Wagner, James and Marta At- GA, lanta, on were the brief for curi- amicus ae Allied Pilots Association. Martha L. Walfoort, DC, Washington, ap- entered pearance. Jones, DC, D. Washington,

Aidan was on the brief for amicus curiae Southwest Air- lines Pilots’ Association. WALD, GINSBURG,

Before: RANDOLPH, Judges. Circuit Opinion for the Court filed Circuit Judge GINSBURG.

Opinion concurring part dissenting filed Judge Circuit WALD. GINSBURG, Judge: Circuit The Professional Pilots Federation and two pilots petition individual for review of two decisions of the Federal Aviation Admin- istration: not to rulemaking institute a relax the FAA requires Rule that commercial airline to retire at and to application extend of the Rule to commuter operations. contend, airline first, The Pilots unlawfully requires Rule airlines to violate the Discrimination in Employ- Act, ment see and, § 29 U.S.C. 621 seq., et second, that arbitrarily acted capriciously, in violation of the Administra- Act, tive Procedure when it decided to retain expand scope Finding of the Rule. contention, merit deny neither we petitions for review. Background

I. promulgated first pursuant Rule in 1959 to its mandate under the Federal Aviation Act of 1958 to ensure (December safety. air 24 Fed.Reg. 9767 1959). 44701(a)(4) (authoriz- § See U.S.C. Cobbs, Nicholas Washington, DC, H. ar- ing Administrator promulgate “regulations gued the petitioners, cause for with whom in periods the interest of ... for the DC, Pangia, Michael J. Washington, airmen”); 44701(c) was on service of § 49 U.S.C. the briefs. (requiring regulate Administrator “in a limit be re- recommended to reduce or eliminate tends way that best no because was still in tained nonetheless there of accidents possibility or recurrence performance appraisal system U.S.C. “medical or transportation”); air 44702(b)(1)(A) pilots who would single that can out those (requiring Administrator early, or pro- greatest hazard duty pose an air carrier to because “the consider perfor- degree impending, health or highest possible deterioration with the vide service airman, on Report air carri- the National Institute issuing an mance.” safety” when certificate); Experienced Pilots Pilots er, Aging, Air Line Panel on other 1981). Quesada, Study (August Ass’n, 897-98 Int’l Cir.1960). (2d agency concluded relaxing the In 1982 the considered air after find- promote the Rule would group allow a small Rule in order to show medical studies ing “that available flying until 62 in order to to continue or due to heart attacks incapacitation sudden performance under generate data on their ap- frequent as men becomes more strokes 29,- Fed.Reg. operating conditions. 47 actual knowl- sixty present medical proach age 1982). 8, ultimately de (July 782 impossible predict it is is such that edge termined, however, per or that “no medical likely most accuracy individuals those appraisal system be identified formance can 898. Quesada, 276 F.2d at attacks.” suffer pose would a single out who would Circuit, not reasoning that it was The Second 14, 692, safety.” Fed.Reg. hazard to 49 own “untutored for a court to substitute 14,-695 1984). 12, distinguish (April Unable “to expert knowledge” of the the judgment for who, consequence aging, as a those and dis- accepted this conclusion agency, who air those present a threat to from to the Rule. Id. early challenge missed not,” experi agency decided not to do the Rule on the FAA has reconsidered The changing the Rule. Id. ment with 1960s, early the In the several occasions. stimulated, at present litigation was The study completed, never agency began, but study Age 60 part, by a 1993 of the least feasibility testing individ- the to determine Systems, performed Hilton Rule that was age of 60 in order pilots over the ual Insti- FAA’s Civil Aeromedical Inc. for the fly. they fit to remained determine whether Study accident Hilton correlated tute. The (7th 946, FAA, v. See Aman to 1988 with period from 1976 data for the Cir.1988). Air Line Asso- In the Pilots analysis re- flying time. This pilot age and replace FAA to the upon the ciation called hypothesis the support for vealed “no with a the prohibition of blanket air had increased pilots of carriers scheduled tests performance regime of individualized age of 60.” they neared the rates as accident evaluations, agency de- but the medical contrary, the Study at 6-2. On the Hilton “an increase the Rule because cided retain trend” study “slight found a downward ad- of medical examinations in the number age of 60. the rates as neared accident pilot ... would not be given ministered to however, cautioned, this The authors incapacitation inas- an effective deterrent “the might have resulted decrease incapacitation the much as indices per- operational rigorous medical FAA’s sufficiently developed.” See O’Don- not now out, over screening] formance standards (D.C.Cir. 59, 61 Shaffer, 491 F.2d nell v. time, likely in accidents.” pilots more to be 1974). Hilton publication of the Shortly after directed National Congress In 1979 the again it was Study FAA announced that to determine whether Institutes of Health a rulemak- to institute considering whether medically See Rule was still warranted. Rule and invited concerning 1285; ing 96-171, also see No. Stat. Pub.L. aspects on various public comments from 86 F.R.D. Rights Ass’n Pilots 21,336 Fed.Reg. Study. 58 (D.D.C.1980). report, of the Hilton final In its 1993). public held a agency (April special “no there was NIH concluded that 46 mem- 1993 at which hearing September age 60 as a significance to mandato- medical presentations. public made pilots” but bers of airline ry age for retirement agency also received more than a Analysis thousand II. written comments. challenge The Pilots the FAA’s decision July In 1993 the Professional Pilots Feder- not to institute a rulemaking repeal FAA rulemaking peti- ation filed with the Age 60 Rule apply and its decision to repeal tion to the Rule. The Pilots main- Rule to commuter airlines as violations of empirical tained that “time and evidence First, both ADEA and the APA. have that the blanket shown elimination of Pilots requiring assert that the airlines to country’s experienced pilots most not is discriminate on the basis of the Rule is in

justified and, in the interests of there- Second, “direct conflict” with the ADEA. fore, capricious, is and violates they claim that the violated the APA country’s policy prohibiting employ- (1) by: affording adequate consideration ment on the age.” discrimination basis of proposed by reasonable alternatives early 1995 after a series of accidents (2) eommenters; various reaching a decision airlines, involving pro- commuter against weight evidence; posed separate rulemaking bring cer- (3) failing provide any reasoned basis operations, tain previously commuter con- treating pilots differently than oth- ducted under Part under Part 121. 60 groups er great who create as (March 1995). 16,230 29, Fed.Reg. These greater safety a risk. operations subject would then become to the safety 121, stringent more standards of Part A. The ADEA Rule, including Age the relaxation of agency which the considering was still in the argue The Pilots Age the 60 Rule Study. wake of the Hilton violates the ADEA requires because it the In December 1995 the FAA denied the airlines to against discriminate petitions repeal Pilots’ Age the and because the need not have relied and decided not to a rulemaking institute in upon age-based Rule in order to achieve response Study. to the Hilton Fed.Reg. objective its safety. of air agency, we (December 65,977 1995). 20, agency told, are implemented could instead have a regarding ag- determined the “concerns scheme of medical evaluations and individual- ing pilots underlying original the rule testing ized in order to determine whether have not been shown to be invalid or mis- pilot event, each fly. remains fit to In in placed,” and concluded that the Rule was still the ADEA Congress spoke directly to safety 65,- warranted aas measure. Id. at age may play the role that employment in 980. The FAA therefore retained the decisions and the FAA cannot—as a matter provides which that: logic if not of statutory interpretation— No certificate holder use the services countermand that statutory clear command any person pilot as a airplane on an through an exercise of its rulemaking author- engaged operations under if [Part 121] ity. person has birthday. reached his 60th person may No serve as a on an responds The FAA speaks the ADEA airplane engaged operations under [Part only to employers—including agen- federal person if that 121] has reached his 60th acting employers—and cies their role as birthday. places therefore no substantive limitation 121.383(c)(1996). upon agency’s § power 14 CFR regulate airline addition the adopted proposed pursuant its rule to the mandate bringing un- of the Feder- alternative, der Part al Aviation Act. In 121 certain operations commuter previously that if conducted under Part contends the ADEA apply 135. 60 does (December 65,832 1995). Fed.Reg. air promulgates, a rules it Age As then the result, these operations commuter 60 Rule comes exception became within the newly subject 623(f)(1) § 60 Rule. The of that statute a bona fide petitioned Pilots occupational this court for review qualification. of both 29 U.S.C. 623(f)(1). rulemaking decisions. § means gress intends to limit the available point upon the its first bases The FAA itself, safety, trust pursuit the FAA in of air we which its the ADEA provision of central say it will rather than leave the matter an em- so unlawful for “it shall be states that Therefore, upon courts to infer. we conclude employment discriminate ployer” to 623(a). authority not limit the argues that the ADEA does § The FAA age. the basis of prescribe mandatory a of the FAA to retire- Age 60 Rule promulgated result, pilots; regu- ment as we need employer but as an capacity not Rule specifi- question reach the whether the lator; agency is capacity the in that occupational qualifica- alia, a bona fide authorized, prescribe “reg- constitutes cally inter 623(f)(1) § meaning tion within the safety for the interest of in the ulations Act. of air- period of service maximum hours 44701(a)(4); § see also id. U.S.C.

men.” 49 Challenges B. The APA in the ADEA provision § 44702. Absent capable of specific or otherwise comparably will defer to the FAA’s decisions We §of 44701—“not the authorization overriding bring 60 Rule and to retain law” provision of withstanding any other unless under the Rule commuter airlines places limita- ADEA no comes to mind—the “arbitrary, capricious, an those decisions authority rulemaking upon the tion discretion, in accor or otherwise not abuse of FAA. 706(2)(A); Mo 5 U.S.C. dance with law.” Mut. tor Vehicle Ass’n State Farm the ADEA also contrasts Mfrs. Co., 103 S.Ct. Auto. Ins. 463 U.S. Act, the Con- in which the Rehabilitation (1983). 2856, 2865-66, More 77 L.Ed.2d 443 subjected programmatic expressly gress particularly, must have offered stricture activities of Government explanation for its chosen course reasoned See 29 U.S.C. against discrimination. Rose, 1081, action, 806 F.2d see FEC v. 794(a) qualified person (providing that no (D.C.Cir.1986), responded to “relevant” against for a disabili- shall be discriminated comments, Home Box “significant” public activity conducted any program or ty “under Of 9, FCC, 35 n. 58 fice, Inc. v. 567 F.2d v. see also Buck by any agency”); Executive (D.C.Cir.1977), it af and demonstrated that 56 F.3d Transportation, Department U.S. of every rea adequate consideration to forded (D.C.Cir.1995). 1406, a sim- Absent 1408-09 presented for its sonable alternative consid expression of in- unequivocal ilarly plain and Steed, v. Public Citizen eration. See not tent, ought that we urges the FAA (D.C.Cir.1984). 93, 103-04 F.2d Congress to the intended lightly infer pursuit of compromise single-minded its not to respect to its decision With safety in air. the repeal or rulemaking in order to a convene argues the modify the FAA that the agree with the We of review is appropriate standard upon the places ADEA no substantive limitation apply standard we the even more deferential authority regulator as a agency’s to act the a not to institute agency’s decision prohibits to an industry. The statute the airline rulemaking Cellnet Communi proceeding. private in the employer an sector both cation, FCC, 1111-12 Inc. 965 F.2d from v. government agency of the federal (D.C.Cir.1992). stan That more deferential in mak discriminating upon the basis indicated, however, only §§ dard of review 29 U.S.C. ing employment decisions. clearly has shown 633(a). plausibly agency when the Act can be Nothing the the would render “pragmatic considerations” making a read restrict searching inquiry more usual and somewhat its acts in its employment when criterion agency has “the chosen problematic public because capacity guarantor judi ill-suited regulate for reasons not to general prohibition of the air. The man resolution, of internal e.g., because ADEA, employers, cial as it is to addressed per budget as to agement implication to considerations be read mere should not weighing after a reasons made authority to sonnel or for specific grants of override Bargmann policies.” See competing § 44701. the Con- FAA in 49 U.S.C. If (D.C.Cir.1983) (re- Helms, operators, non-Part 121 notably eral most viewing Boeing Corporation, adopted FAA decision not to institute rule- have indi- testing vidualized making require first-aid kits on commer- order to settle various aircraft). brought against suits cial In the case now before them under the ADEA. us rulemaking looking responding a The Pilots fault the FAA for decision not to institute repeal pur- of the 60 Rule was EEOC’s detailed comment with the sim- toward upon ple apprised assertion that it portedly the merits of the exist- had “not been based need, therefore, testing protocols see no or of ing Rule. We the results of agency testing, more than the them ha[d] afford the usual—and seen dis- literature, in the agency we show an cussed medical and ha[d] considerable—deference party adopts implementing agreements.” a not been when it rule a statute charged administering. it is shall We responds by pointing The FAA out that it apply capricious therefore specific testing regimens did evaluate the the APA. standard of proposed by finally the commenters before concluding testing individual is an 1. of alternatives Consideration inadequate substitute for the 60 Rule. parties filing Various comments before the the final rule document ob- (1) proposed pres- two alternatives to the served that available tests: evaluate First, they suggested periodic pilot’s present performance ent Rule. and cannot be performance determine, designed predict checks used to age- the sudden onset of an basis, impairment, on an individual whether a related early re- such as or subelini- (2) Second, fly. they proposed defects; cognitive mains fit to al- cal cannot measure the lowing group over degradation of 60 to subtle may prove skills that (3) flying passenger cockpit; continue commercial serious in air- do not evalu- gather pilot responds craft in order to the data that ate how to stress and fa- tigue. would need to make reasoned decision about whether the current retirement response contends that safely up perhaps age 60 could be moved the comment submitted the EEOC was press 62 or 63. The Pilots now both alterna- entirely adequate light purely anec- upon tives us. dotal evidence that the EEOC offered in support of its assertion that individualized performance a. Periodic checks testing proven has to be a viable substitute rejected periodic performance bright-line for a upon age. rule based The ground they only “verify principal checks on the EEOC’s evidence is that it reached pilot’s performance the state of a at agreement the time a settlement Boeing with under They “early the checks.” do not detect or company’s pilots which that were for a time cognitive may subelinical subtly defects that to flying age allowed continue until the of 63. degrade performance” predict and “do not The FAA acknowledges as much quick but is (1) pilot’s performance point whether an individual will to out that: lawyer who EEOC degrade at time the future as a result Boeing litigation oversaw the observed a age.” published The Pilots assert that rather than 1991 article Flight Safety adequate propos- afford consideration to this impact Foundation that full agree- agency blindly upon assessed; al the upon safety relied its 1984 ment remained be (2) determination that there are no Boeing’s experience valid tests no account of yet has (3) capable screening pilots likely published; out to suffer Boeing pilots corpo- been are age-related impairment. 121; The we rate who do not under Part told, (4) acknowledge are not Boeing representative did even that a a had testified testing protocol presented detailed agency had been before the that “neither the informa- agency during hearing a 1985 before tion uncovered as a result of this effort nor the House Aging. subsequent Boeing Select Committee on The ... experience with our purportedly FAA also adequately failed neuropsychological protocols medical and respond gives the EEOC’s observation that sev- ... us confidence that means are cur- Finally, we conclude that the FAA ade predict age- detect or rently available to quately explained the difference treatment may have ad- problems [an] which related of who it affords to over safety.” on [effect] verse condition have no known medical agency’s claim that Pilots also The younger pilots who have a known medical do testing rejection of individualized allowing younger The risk of condition. with its is inconsistent of 60 over provid pilot flying negligible continue is testing for monitoring and acceptance of proviso it is this critical that our ed—and medical pilots with certain known younger colleague ignore—that in dissent seems to FAA maintains that did conditions. develop has able to a “the been for the adequate explanation offer an fact specifi and surveillance means assessment specifically inconsistency when it apparent cally designed to demonstrate the individual’s that, pilot with a although younger a found capabilities identify any adverse moni- be diagnosed condition medical Doctors are not unable to changes.” tored, apparently whether an older but determine there aging, since is not the case danger healthy pilot will be afflicted with a applicable medical tests generally are no condition; predict they also unable to ous can, time, adequately deter- at this myriad conditions that with which subject to pilots are mine which individual pilot accompany advancing age an individual acute secondary to either incapacitation likely to afflicted.* The FAA cannot be neurological events or cardiovascular onset, thereby practically monitor conditions related to more subtle adverse potential haz consequences, of all avoid the cognitive functioning. decline of pilot. medical conditions an older ardous 65,984. example, pilot Fed.Reg. at For Therefore, for the it was not unreasonable be test- diagnosed heart condition can with a particular younger FAA to allow in order to determine ed and monitored while, flying conditions to continue medical significant that he is a risk whether there time, allowing pilots over the the same FAA allows attack. The will suffer heart age of 60 do so. flying provided that his pilot to continue the risk of his have determined that doctors Selecting group over the b. unexpected impairment suffering a sudden of 60. condition is de minimis. to his heart due tests, however, rejected suggestion accu- that can The FAA also There are no 60 be apparently pilots over the rately group the risk of an determine flying under Part suddenly being permitted strick- to continue healthy but older generate the needed for by any many potentially disabl- in order to data en one of the empirical judgment about may accompany ing advanc- to make conditions Age Rule is reasonable. whether the ing age. contend, elaboration, that the without Pilots that the FAA afforded We conclude adequate consideration FAA failed to offer alternative of adequate consideration to the responds that it FAA this alternative. The explained FAA testing. individualized The not have rejected proposal because it did testing cannot that even state-of-the-art of identify a cohort that it could confidence potentially risky pilots. The screen out susceptible pilots who would not be vintage support any data in of EEOC did not offer incapaci- impairments or to sudden to subtle fly allowing pilots to until its assertion that tation: safety; compromise age the of 63 would plan] in 1984 FAA withdrew similar failing [a for The simply FAA cannot be faulted the group tests for the part of the because valid selection explain away that are not data FAA was concerned not exist. The did record. * Rather, dissent, it is agency's concern was that impression the Contrary created the n.3. to the unknown medical difficult to detect an suggest more difficult more the FAAdid not "that it is con- monitor a known medical condition than to medical conditions in an older to monitor known pilot.” pilot younger dition. than in a Dissent tests,

that, valid selection these be reconciled with its treatment of Part without unacceptable safety an over the of 60. pilots would create operations. The coramen- risk in suggest any Younger pilots

ter does not data indi- a. group [sic] cates that a described [sic] arbitrary The Pilots claim that it is identify any would be able to such tests. capricious ground for the FAA to older today. FAA has the same concerns experienced pilots allowing more while 65,984. Fed.Reg. at younger fly though younger even pilot likely pilot is more than an identify long good the FAA cannot As as cause accident. To the commenters who experiment the that the Pilots candidates for contradiction, argued that this is the propose, hardly can that its re- we conclude (in essence) that, responded however valu experiment fusal to run the is be, experience may able it is no match for a contrary, capricious. On the it would be Implicit heart attack. in the FAA’s decision require court to unreasonable for the 40-year-old is the view that a with 15 suspend safety periodically regu- the FAA years experience of is a safer bet than a 61- anew, upon lations in order to determine year-old pilot years experience. with 36 disastrous) (potentially experience, basis 61-year-old pilot’s experience additional they whether still Nor needed. have is, outweighed, heightened is experimentation Pilots shown with probability ability fly that he lose his will passengers permitted by is safely—whether through gradual wear and Indeed, Congress Act. Federal Aviation episode—and tear or a sudden the disastrous arguably by requiring forbade it the FAA to consequences if he does. The also duty pro- of an air “consider the carrier to argument maintains that the Pilots’ is funda highest possible degree with vide service mentally flawed because it assumes that the public interest.” 49 U.S.C. based its decision to retain the 44701(d)(1)(A). solely upon Rule accident data. Accident Nothing suggests in the record consideration, among many, data are one has, upon, the FAA but refuses to act that influenced the FAA’s decision to select “valid selection tests” it would need order off; data, age 60 as the cut other such as the identify group of low-risk over the percentage pilots suffering sudden heart might safely fly. of 60 who continue to failure, significant or a loss of vision or hear Therefore we must conclude that the FAA considered, ing, were also and those data arbitrarily capriciously-—and did not act provide ample grounds drawing a distinc quite possibly acting required by was younger tion pilots. between and older In law—when it refused to waive the Rule in deed, according agency, to the all studies of group order to allow a selected subject come to the conclusion that some passenger attaining commercial aircraft after mandatory appro retirement of 60. priate. diverge only regard The studies precise age at which retirement should rationality age-based 2. The risk assess- be mandated.

ment Finally, questions assump- that, tion, implicit The Pilots assert in the course of argument, the Pilots’ Rule, defending relatively inexperienced pilots drew replacing are “ experienced several distinctions that a in- pilots reveal ‘basic more as a result of the consistency reasoning’ by applying pilots in its sim- Young rarely 60 Rule. are if ever concepts differently parallel given they ilar in situa- command of an aircraft before tions.” significant experience. pi- See Air Line Pilots Ass’n v. 3 have had Older (D.C.Cir.1993). lots, therefore, particular, F.3d typically “replaced by pi- In are experience the Pilots maintain that pilots the FAA’s treatment lots who have substantial younger pilots, fly of of position, flight who do not the first officer and often as foreign pilots engineers under Part cannot that.” and before jus- develop potentially a condition with a serious adequately We conclude impact upon ability fly airplane between distinguish his its decision tified of 60. safely. and those over This difference between the two younger reasonably agency fully adequate concluded groups The is to warrant the dis- pilot fly allowing an older inherent risk tinction that the FAA has between drawn having expe- a more outweighs the benefit them. contrast, In person command. rienced pilot in a allowing younger a to serve

risk of Corporate e. aircraft and air taxis. while the negligible role is ben- noncommand experience allowing gain him to is efit The Pilots next assert that the FAA high. applied arbitrarily with has type regard out for either the of aircraft known medical con- Younger b. being type being flown or the of service ditions Thus, provided. applies cargo the Rule the FAA carriers, Pilots observe risk, passengers where no are at but pilot younger a with a taxis, will allow sometimes corporate not to aircraft and air where flying continue problem to serious medical passengers are at risk. The Pilots claim that by high problem if his is characterized even utterly this is irrational. capri recurrence. It is and

rate of responds the distinction assert, cious, appar to forbid an the Pilots passengers between common carriers of and fly healthy pilot over the of 60 to ently Rule, subject Age 60 cargo, which are might that he have a first because of the risk private passengers car- carriers of time, while, allowing at the same heart attack not, go, governing which is in the are found spite of the dramati younger Congress the FAA to statute. The directed might cally higher risk that he statistical “air trans- consider the differences between heart attack. suffer second portation,” transportation as the defined policy granting The FAA defends its passengers property by a common carri- experienced who exemptions to have 40102(a)(5), (24), (25), er, §§ & 49 U.S.C. ground that problem on the serious medical air commerce.” See 49 U.S.C. and “other only a recurrence so when the risk of does 44701(d)(1)(B). specifi- Congress § also adequately. A known condi- can be assessed duty cally required the FAA to consider the also, as in only can not be monitored but tion carriers, elsewhere as com- of air defined heart condi- case of alcoholism and some 40102(a)(2), (5), carriers, §§ mon 49 U.S.C. tions, controlled: (24), (25), provide service with the & “to special issuance medical certificate When a pub- highest possible degree of question has granted, the condition lic interest.” See U.S.C. identified, clearly agency has been 44701(d)(1)(A). Accordingly, develop a means of assess- been able appropriate regulate common considers it designed to specially ment and surveillance regulates stringently than it carriers more capabilities the individual’s demonstrate commerce.” Insofar as “other air identify any changes. If and to adverse aircraft and air taxis be- corporate leaves possible, is not is not certification yond the reach of the the distinction granted. unreasonable, says agency: corpo- is not 65,984. Meanwhile, Fed.Reg. the sub- public as do pilots do not serve the rate physical and mental decline tler forms carriers; while air taxis do common accompany aging cannot be detect- often airlines public, unlike commuter serve the ed, monitored or controlled. let alone has not been a source their record NTSB, perhaps the FAA or the sum, there concern for the FAA determined that involving operations—typically because their techniques monitoring the health of less passengers haul but a few short medical conditions with certain lesser de- sophisticated equipment—place any way predicting yet is not of that there pilots. likely upon their pilot to mands and when older whether adequately consistently obligations FAA must “act with We conclude that the ex- of apply to Government under an interna- plained its decision United States agreement,” appli- aircraft but not to tional and “shall consider pilots of commuter corporate requirements aircraft air taxis. pilots foreign of cable laws and of a clearly country”). left the FAA free to Congress The The standards that have been operations regulate corporate Chicago aircraft at less established under the Convention (but safety.” “highest possible degree permit require) country than the do not a to allow (“The Quesada, at pilots fly beyond age 276 F.2d Adminis- commercial See of 60. reason, maintains, unreasonably placing in not act For this the FAA trator did must pi- greater foreign pilots fly on the certificates of as a matter of law allow limitations carrying large flying planes notwithstanding numbers 60 Rule. lots opportunity have no passengers who select agree FAA We with the that the mandate choice. The Federal of their own § requires inconsistency of 40105 this in the contemplates just Act such distinc- Aviation foreign treatment of domestic and carriers regulations governing tions between the ‘air pilots. however, Perhaps, experi- and their governing those other air commerce’ and pilots foreign age ence with over the of 60 transportation”). flying airspace in commercial aircraft U.S. operations excluding As for air taxi while provide comparative will the FAA with the extending operations, to commuter the Rule empirically data it needs order to evaluate accept point we the FAA’s the NTSB continuing existing need rule. specifically had asked the to consider operations. extending the Rule to commuter weight 3. The of the evidence 16,235. responding Fed.Reg. at The Pilots assert that the FAA not request, obliged— the FAA was not NTSB’s only placed emphasis upon unwarranted evi dissent, contrary colleague to our see dis- supports retaining dence that the Rule but consider whether the Rule sent 6—to downplayed significant also tending evidence improve safety applied if might further Thus, support. to undercut Nor, note, operations. still we could other panel that an stressed NIH had found any way such an extension of the Rule in pilot performance 1981 that deteriorates with indeed, petitioners; benefit the as the Sev- age ignoring panel’s while the same recom observed, it enth Circuit has would foreclose pilots mendation that selected over the post-60 employment. them from a source of fly generate be allowed to order to data (1978).

See Starr performance pilots. about responds FAA give it did not Foreign pilots d. short shrift to the NIH’s recommendation Finally, the claim that it is Pilots a limited number of older be capricious for the FAA to allow generate allowed to in order to data. The operating airspace foreign carrier U.S. unwilling upon pro- remains to act employ pilots who are over of 60 posal because it of no knows method prohibiting while a U.S. common carrier from selecting group of low-risk over the employing even the healthiest of be age of 60. yond age. responds as a Convention, signatory Chicago agree see 61 We that it did not (December 1944) ignore Stat. T.I.A.S. 1591 recommendations contained seen, required recognize report the United States is of the NIH. As we have above, by any signato valid license issued other see II.B.l the FAA decided not to ry, provided requirements underly flying past allow to continue then, ing “equal such licenses are to or above the 60 because it did not know as it does now, any way identify minimum which group standards be estab not know pursuant likely lished from time to time to this over the of 60 who are less 1189; equally convention.” See 61 Stat. at see also than other venerable aviators to ex- 40105(b)(1)(A) (B) (FAA perience §§ 49 U.S.C. & some loss of their faculties. experience age-related failing to who will deteriora- also fault the FAA The Pilots why tion. see no reason NIH has withdrawn its We should acknowledge that the supporters failing refer be faulted for to name the Rule. The Pilots here support for the proposal long as as the director of the of the ade- of a former to the declaration quately T. Franklin considered the merits of the idea. Aging, on Dr. National Institute States, Williams, Corp. in 1985 before See Brae v. United he had testified (D.C.Cir.1984) (“Although the Aging on “that Committee the House Select identify obligation that Commission has an and position of the NIA it was the official issues, ponder was all relevant it need not men- testing pilots age after feasible every commentator whose tion name desirable.” examines”). grievance it it not acknowl- FAA counters that did The question its The Pilots also the FAA’s use of had withdrawn edge that the Institute Study. study Hilton That concluded that the record does support for the Rule because position. the available data reveal no increase in the any change not establish pilots nearing age rate of but only report in the record is the accident Institute NIH nor cautioned that there are no data available prepared in 1981. Neither the one study respect age of 60. another similar over NIA has conducted Acknowledging question that the of when a Only Dr. Williams’ declara- since that time. tion, required FAA should to retire must be litigation to which the be submitted “very conservatively pres- answered because of the party reproduced was not a results,” record, catastrophic study support possibility rulemaking is offered ent cautiously increase “formally concluded that “one could proposition that the NIA Moreover, the retirement 63.” The Pilots position. abandoned” its earlier adequately Dr. claim that the FAA did not ex- is in some tension with that declaration adopt plain its failure to this recommenda- before the House Com- Williams’ statement “to tion. Aging that he did not intend mittee on rule,” speak against for or the retirement regarded The FAA maintains that it with his somewhat hesitant assertion Study inadequate upon Hilton as an basis probably reliably test cardiac that “we can policy study change which to because reliability functioning and with reasonable data; change considered accident identify coronary events older risk for on policy would have to take account of “data persons.” younger

well as time, vision, judgment, reaction circadian rhythm many neurobehavioral and no other that the was under We conclude FAA also physiological measures.” The acknowledge post Dr. Williams’ obligation to appropriate it testimony questioned whether was that was hoc characterization fly com- about who agency. draw inference never submitted to the from statistics event, passenger aircraft not state in his testi- mercial Dr. Williams did fly cargo transports, formally pertaining who mony NIH abandoned had flying pattern any expla- and therefore have a different study, give nor he the earlier did levels of may subject them to lesser why NIH would do so. The nation as to stress; Hilton drew the inference fatigue no new of Dr. Williams contained declaration pertain- more relevant data validity because it lacked bearing upon the evidence passenger pilots over the ing to commercial 60 Rule. (a set). null of 60 the FAA for re- The Pilots also criticize some- screening seem to have created jecting proposed alternative announcing it thing that will performance checks of a Catch-22 pilots through exper- fly until it has not allow older acknowledging that the NIH advo- without above, demonstrating the continued abil- iential data approach. As discussed see cates fly safely. On the other II.B.l, ity of such adequate consid- afforded hand, hardly require seems reasonable merits of this alternative and eration to the put his periodically yet the Administrator that medical science has not concluded that he the fire in order to ensure point being predict able to hand into advanced 770 danger tially that the same as that which the FAA of- precisely

has assessed the adopted justified imposing Age in fered when it first the poses. If the FAA was place say cannot in 1959. The continued to adhere to the Rule in the first then we that, position Age itself that the 60 Rule is neces- simply it is the Rule because necessary sary highest to ensure level of aviation generation blocks the of data the Rule, safety despite technological it was unreasonable for the and reconsider the medical In developments ensuing nearly that it lacks those data. the four the FAA to find over sum, decades, despite we hold that the FAA’s decision not growing among trend for- rulemaking Age to revise the 60 pilots convene a eign aviation authorities to allow over arbitrary capricious in Rule not and was fly, despite report 60 to and a recent commis- violation of the APA. by the FAA which concluded there sioned in was no evidence of an increase accidents

III. Conclusion pilots up age at associated with older least that the ADEA does not limit the We hold 63. authority regulate FAA air carriers majority The concludes that this decision safety. also the interest of Because we by Age FAA the does not violate the Dis arbitrary FAA not conclude was and (“ADEA”) Employment Act crimination APA, capricious, in violation of the in decid- and satisfies the Administrative Procedure rulemaking ing not to conduct a for the (“APA”) prohibition arbitrary Act’s on and

purpose amending Age capricious agency agree action. I petitions for review are directly govern ADEA does not the FAA in

Denied. regulator, its role as and thus the FAA prove need 60 Rule is a WALD, Judge, concurring part Circuit occupational qualification pilots. bona-fide part: dissenting justification But I believe that the FAA’s progres simply pass rule The has determined that does not muster under anatomic, cognitive sive the APA.2 It be the cur physiological, case our generally aging knowledge testing protocols with decline associated rent medical pilots identify pilots means that all over the of 60 are unable to those older who represent great incapacitation too a threat to aviation safe are at risk of sudden or subtle ty part operations, functioning, to be allowed to deterioration in so that an arbi trary which constitute far the bulk of commer across-the-board limit remains the operations.1 achieving cial carrier reliable highest common means of possible safety. However, based this determination not on evidence level of aviation demonstrating perform yet provided adequate over 60 has not justification go-round less well than under but rather on on this for its conclu exists, claim that there is no accurate means to sion that this situation still nor for its identify particularly safety requires which are at risk determination aviation suffering incapacitation pilots, carry a sudden or more all common carrier even those ing cargo only, subject subtle deterioration in their abilities and the be limit age range corporate pilots. of 60 was within the where the but not or air-taxi aging incidence of diseases associated FAA’s decision also suffers from a reliance sharply argument inapplicable increases. This is essen- on flawed and studies of accident Up part governed 1. until common with the assessment that our usual standard of operations involving carrier aircraft with more capricious applies APA here, review 7,500 payload capaci- than 30 seats or more than ty. though rulemaking even refusals to initiate the FAAextended 121 to cover ordinarily particular are accorded deference passenger carrying opera- airlines scheduled court, reviewing because the FAAbased its refus- turbojets regardless 10 to 30 tions with of seats and rulemaking al to initiate to rescind the seating capacity. Operations See Commuter pragmatic Rule not on resource concerns but on Operation Require- and General ments, Certification Majority opinion the merits of the rule. See 65,832 (1995). Fed.Reg. ("Op.") at 763-64. Although disagree majority's analysis 2. I with the APA, of the FAA's decision under the I concur decision to retain Perhaps hardest to swallow the 60 Rule suffers

rates. from all of these defects. try to obtain FAA’s continued refusal performance data on older medical or currently grants exemp medical it claims that such at the same time as tions to under 60 who risk of in required any change before the evidence is incapacitation sudden or subtle deterioration agency’s countenanced. The rule can be functioning in because of known medical con complacent acceptance of this Catch-22 situ- ditions, grant exemptions but refuses to ation, particularly given that the result is the pilots over the of 60 who are at risk of government-imposed re- aging. continuation of these same effects because of In its discrimination, decision, argued to me the that this gime seems differen pilots tial younger treatment of and older epitome of action. pilots merely the reflection of state of FAA, technology; according medical to the I. The FAA’s Failure to Offer by there are tests which the of a status Explanation Adequate neurological known cardiovascular or condi Age the Need for monitored, reliably tion can be but there are prohibition on The core of the APA’s arbi- by presence no tests which the of such a trary capricious agency action is the reliably can condition be determined. The agency provide a requirement that an must majority accepts this claim as an established explanation it reasoned for what does. While fact, but the cites no evidence in its ‘arbitrary scope of review under the “[t]he support certainly intuitively and it is not capricious’ standard is narrow and why being clear the difference between judgment its court is not to substitute incapacitation risk of sudden subtle deteri agency,” neither a court that of the oration because of known medical conditions agency action when the sanction being at risk of the same effects because conclusory merely unsupported offers radically aging produce different should in postulations defense of its decisions or diagnostic capacities. v. 917 Baker Cf. contradictory ignores when it evidence (7th 318, Cir.1990); 321 see also id. at F.2d justify seeming record and fails to inconsis- (Will, J-, difficulty in dissenting).3 325 If the approach. tencies Motor Vehicle certainty the latter instance is the lack of Mfrs. Farm, Co., v. Mut. Auto. Ins. 463 health, Ass’n State why simply regarding pilot’s 41, 2856, 2865-66, 77 U.S. S.Ct. presume pilot that the older does in fact (1983); accord L.Ed.2d 443 Dickson Secre- that cause these suffer from conditions could tary Defense, pilot 1404-05 68 F.3d effects and then determine whether the (D.C.Cir.1995). fly explanation FAA’s of its is safe to means of the same tests that Baker, subject associated with 3. the Seventh Circuit commented that to” medical conditions ("J.A.”) support "[e]xactly aging. Appendix clear how this distinction Joint at 76—to was not younger pilots diagnose [between known conditions the notion that it is harder such applies pilots place conditions] and older at risk of the in an older than in a conditions in first practical upheld but the FAA be- younger pilot. only possible difference is matter/' seeking exemptions petitioners cause were disabling detected or conditions—whether [oí] 60 Rule and thus bore the "burden likely not—may in older be more to occur than present[ing] persuasive granting evidence that (FAA's younger pilots. But see note evi- infra exemptions impair safety.” would not ambiguous question of whether dence is on Here, however, petitioners challeng- are at 322. guard against appropriate 60 is the cut-off to APA, ing the rule itself under the and the APA decline). age-related Yet evidence that without requires provide explana- FAA to a sufficient easily youn- conditions are more detected in demonstrating that its actions are reason- tion potential ger pilots, does not suf- difference id. at 322 n. 6. able. Indeed, justify Cf. Rule. fice to the FAA’s suggests examining physi- thesis, common sense Op. Contrary majority's at 764- for, suspect, likely would be more check cians nothing support the record to there is disabling in the and thus discover conditions idea that it is more difficult to monitor known case, pilots. Even if that were not in an older than in a medical conditions however, pilots possibility are that older younger pilot; anything—beyond nor is there subject disabling medical conditions generally more FAA's bare assertion that "there are no can, time, readily younger pilots could be addressed applicable at this than medical tests testing. pilots frequent thorough adequately more medical determine which individual pilots at monitor with known condi which those risk of these effects can are used to accurately If the tests that the tions? be identified. currently pi- younger uses to monitor treatment Nor can the FAA’s differential might lots with known cause conditions explained on younger be of older and such effects could be used monitor older age-related conditions grounds conditions, pilots at risk of then these there pose regard a concern to older be no need for the rule. would younger from those found are different pilots. The record makes clear analysis A lack of similar reasoned charac- younger allows who have been explanation scope terizes the FAA’s disease, even diagnosed with cardiovascular currently applies 60 Rule. The rule though it also lists cardiovascular disease as pilots, including part all potential incapac of one of the causes sudden solely in cargo operations. that work It also pi deterioration older itation and subtle applies only part pilots; pilots— 121 to other Rule, 65,983-84. Fed.Reg. at Age lots. 60 60 corporate pilots, pilots, inspec- such as test event, potential any In it is the effects of the tors, pilots—are air-taxi not and covered. aging, associated with and medical conditions defending application its of the se, per pose that a risk to not the conditions Age only part opera- all 121 60 Rule to and safety, younger the FAA allows aviation tions, simply Congress required noted that fly pro to with conditions that could promulgating safety regulations FAA in example, For duce the same effects. while carriers, duty to consider the of air which puts great emphasis on the subtle transport passengers property by or aircraft functioning accompa cognitive decline in carrier, perform as a common to their ser- younger pilots aging, nies allows highest possible vices with degree conditions, fly neurologi with various as safety public in the interest and to take alcoholism, psychological cal and disorders account of the differences between air carri- potentially pilot’s could undermine ers and other forms of air commerce. See 206, 284, 611-12, cognitive abilities. J.A. 678. Rule, 65,985. Age Fed.Reg. 60 60 at Accord- explains why The FAA nowhere the same majority, ing to the this statement suffices to employs youn tests that it to assess whether explain apply Age the FAA’s refusal to ger pilots possess with these conditions pilots, 60 Rule to non-air carrier such as cognitive functioning required level of corporate pilots, “Congress clearly because safely cannot be used to make the same regulate corporate left the FAA free to air- pilots.4 regarding determination older operations highest pos- craft at less than the safety.” degree Op. sible But 768. explain adequately FAA’s failure its Congress require highest even if not did younger pilots different treatment possible degree safety for non-air carrier pilots when are at both risk sudden operations, pre- it did incapacitation authorize the or subtle deterioration func- regulations scribe that the FAA tioning simply deficiency is not a minor “finds neces- its sary safety analysis. operations.” in air The heart of the FAA’s defense of commerce (1994). 44701(a)(5) Thus, Age 49 60 Rule is its claim that medical U.S.C. what knowledge provide does not a means is needed before we can conclude that the addition, possibility age-related 4. if the of an 72. Without indication of whether the inci- cognitive linchpin age decline is to be the dence of Alzheimer’s increases with 65, before Rule, Age agen- support FAA's defense of the then the this statement does not an across- cy provide in-depth age should a more discussion the-board cutoff of 60. See also Institute of Medicine, currently why appropri- Age, than it does of 60 is an Airline Pilot Health and Perfor- Considerations, guard against phenome- ate cut-off to this and Medical mance: Scientific phe- (noting prevalence non. In its the FAA identifies the J.A. at decision of demen- decline, age-related cognitive percent, nomenon of but tia before 65 has been estimated at 1 provides prevalence no indication of when such decline im- while the after 65 has been estimated (affidavit pacts ability percent); on an individual’s to function. The at 5 J.A. at 638-41 of former persons Aging arguing decision also ''[o]ne comments Director of National Institute on nearly neurological neuropsycho- over 65 and half of those over 85 have that evidence on alone, increasingly logical support disease health an Alzheimer's does not cut-off of 60). people in found in their 40’s and 50's.” J.A. at taxis, operations FAA’s exclusion of non-air carrier which are air but regulated carriers Age part from the 60 Rule is reasonable is some under 121. only The FAA’s reference explanation why required as the rule is not air-taxis comes not in its 60 decision to achieve the level of that the FAA proposal but opera shift commuter appropriate believes is for non-air carrier part tions to merely and consists operations. explanation Such is not to be statement that air-taxis “are unlike commut anywhere in major found the FAA’s decision. er or operations,” air carrier along with the comment the FAA was Further, duty the FAA’s citation of put operations asked to part commuter under operate highest possi- air carriers to with the Operations 121. See Commuter and General degree explain why ble does not Operations Requirements, Certification applies Age 60 Rule to some but not 16,235 (1995). 16,230, 60 Fed.Reg. The ma all air carriers. At the same time as it jority maintains the exclusion of air-taxi refusing issued its decision to rescind the operations from the 60 Rule is reason promulgated the FAA also simply able because the FAA was not asked regulation extending final the rule to com- operations. extend the rule to such I find operations part muter as of a shift of most argument wholly unpersuasive and wide However, commuter airlines to 121. question of the mark. The is not whether applied operations to commuter the rule should be to opera extended air-taxi fully years. Rule will not be effective for four tions, but applica rather whether the FAA’s justified year delay this four in tion of the rule to all air operations carrier impose terms of the burden the rule would coming part under 121 was reasonable. Giv on pilots; commuter airlines and commuter application en that its of defense the of the emphasized that commuter in- airlines have Age part 60 to operations Rule all 121 was money in training pilots expec- vested in the simply a citation of heavy the air carrier’s they fly past tation could 60 and will be duty safety, of obligation has an subject regulations to numerous other new in provide explanation why some duty as the immediate future as a result of the shift does not require non-part 121 air 121, carrier part pilots while commuter have not operations subject to be Age 60 planned Rule leaving positions on their at 60. as well.5 delay These are all sensible reasons to en- Rule, Age they forcement of the 60 but are deficiency A third in the FAA’s decision is difficult to reconcile with the FAA’s citation inapplicable its reliance on flawed and stud- duty perform of air carriers of majority ies accident rates. As the de- highest degree safety the defending of in the tails, instigating one petition- factor behind application opera- of part the rule to all 121 request rulemaking Age ers’ for a on the 60 Why, duty

tions. if this does not allow the report Rule was the 1993 Hilton on the rela- FAA room to consider the differences be- tionship pilot age between and accident rates. cargo passenger operations tween or the report, by This commissioned the de- pilots part burden on under does it allow termined that there was no evidence of in- FAA the to take economic and con- fairness creased pilots accident rates for air carrier regard cerns into account in to commuter they anything neared if slight operations? analysis downward trend. on its Based provides explanation The FAA also no pilots age flying operations over the 60 why duty perform highest Rule, degree Age with the not report covered 60 safety possible is consistent with the con- part concluded that limit for 121 tinued Age pilots exclusion from the 60 Rule of air- could be extended from 60 to 63. The majority 5. The part operations, also remarks that extension of the the rule to all not to the Age operations 60 Rule to air-taxi non-part would not FAA’s exclusion of air-taxi and other petitioners, operations benefit since it would further 121 air carrier from the rule. If opportunities pilots restrict the available to over FAA were to determine differences be- again, petitioners’ types operations the lenge of 60. But chal- tween different al- duty pilots is to the FAA’sclaim that the of air lowed instances, over the of 60 to in some perform highest degree opportunities pilots carriers to with the more for older justify application is a sufficient basis to would be created. however, the rule concluded, the FAA’s decision to retain the Hilton FAA. justify rescission of report decisionmaking require- did fails the reasoned in the cutoff. an increase them, Rule or I of the APA. Even without ments try the FAA’s refusal believe that rejection of the Hilton FAA its based necessary to the fact that earlier the evidence it claims is large part on obtain report in an increase accident had found require studies us to hold that rescind the rule would many record indicates rates. But the arbitrary. was decision seriously flawed. For ex- these studies decision, emphasizes FAA In its great detail the ample, the described required before a conclusive assess- what is report that found a of a 1983 conclusions Age 60 Rule rate for ment of the contribution of the substantially higher accident pilots. younger While over 60 than for protect aviation can be reached is commentators disa- that several noted performance data on over medical and methodology used in this greed with operations. serving air carrier why, despite explained these report, it never also under- importance of such data was report the 1983 re- methodological problems, Health scored the National Institutes of evidentiary value. As the Sev- any tained (“NIH”) report its 1981 on the commented, problems— these enth Circuit directly relevant and the need nearly including millions of accident such as deny. is hard to But the simulta- data determining acci- miles in free air carrier neously refuses to allow over-60 though as pilots under 60 even dent rate for performance be stud- whose and health could no air carrier a result fly in generate ied to this data to air carrier determining acci- miles are available operations, even who have been sub- calculating a pilots over dent rate for jected rigorous performance medical and year in a rate for all ten single accident is, best, report FAA refusal to screening. that the 1981 at defended its cohort—mean Baker, 917 “very limited usefulness.” study pilots allow such of older on the basis 100-01, 1; at at 320-21 & n. accord J.A. F.2d justify argument that it uses to of the same 500-01, 659; 101-02, 518-20 also J.A. at see Age general— of the 60 Rule in retention (criticisms Technology As- of the Office of namely that is no reliable means for there report the second Golasewski sessment and pilots participate study selecting FAA also relies on a National report). The incapacitation who were not at risk of sudden report that car acci- Research Council found abilities, or subtle deterioration their and drivers, argu- rates increased for older dent in the absence of such selection tests the pilots flying past 121 ing part that the lack of represent great study would too a threat surrogate the use of data 60 necessitated safety. aviation pilots performance of older and assess the compar- that car was a relevant accident data reasoning The flaws in the FAA’s dis- flying driving a car ison because both make it cussed above difficult to credit But, judgment. require good reflexes and study that such a would FAA’s conclusion noted, again Circuit has “[t]he as Seventh unacceptable safety. pose an risk to aviation drivers and connection between automobile expectation accommodating If the reasonable given pilots’ pilots itself seems tenuous of commuter airlines and commuter training, proficiency, medical demonstrated application justifies delaying Age of the 60 Baker, 321; fitness, 917 F.2d at see etc.” surely operations, to commuter then Rule not acknowl- at 504. The does also J.A. pressing pilot for on health need data why, explain even edge these differences carefully performance justifies allowing a so, car accident data is relevant. group fly past part 60 as

screened II. The Need for Evidence on Older systematic study pilots. of older And of a Safety and the FAA’s no means Pilot the FAA’s contention there is

Refusal Obtain safely participants for such which to select study agency’s claim is undercut justifica- in the FAA’s These deficiencies safely younger pilots with me to conclude that it can monitor Age tions for the 60 Rule lead

775 part known conditions could result sudden shifted under 121. A potential third incapacitation or subtle deterioration func- non-part source is 121 operators who have addition, tioning. many experts who agreed to allow fly past pursuant 60 study Age argued 60 Rule have that a to consent decrees with Equal Employ- carefully group screened of over 60 Opportunity ment point Commission. At no safely could be allowed to as of a decision, however, in its does the FAA sug- systematic study. example, For the NIH gest that it will any make efforts to obtain report, which itself describes as pilot data on older functioning comprehensive yet “the study per- most these sources. in age-related formed the issues involved Ordinarily, agency’s an try failure to pilots,” Age retirement of airline 60 obtain data needed to initiate a rulemaking 65,982, Fed.Reg. at recommended arbitrary; would not be agencies must be program provid- such a undertake allowed to set agendas their own and allocate general description ed a of what would be they their resources as see fit. Heckler v. Cf. Thus, required. clearly the authors of the 821, Chaney, 831-32, 105 470 U.S. S.Ct. report, experts NIH who were national on 1655-56, (1985). 84 L.Ed.2d 714 But circum aging, the medical conditions associated with surrounding stances the FAA’s retention of study safely believed such a could be Age ordinary. Rule are not For 179-81; undertaken. See J.A. see also id. nearly forty years, argued the FAA has (testimony at 471-73 of Dr. James Hickman necessary Rule to ensure the effect); Mayo Clinic same see highest level of aviation yet but it has ah, generally Andreas E. Struck et Multidi- supply the direct evidence of older mensional Risk Assessment versus performance health and is needed to Pilots, Criterion Retirement Airline See, support proposition. e.g., Aman v. Soc’y. (1992) (argu- J. Am. Geriatric (7th Cir.1988) (com ing improved that under an medical certifica- menting agency’s progress that “the in devel procedure tion might conditions that cause oping an understanding relationship incapacitation sudden or subtle deterioration aging flight performance between has functioning likely “would most be identi- disappointing”). been 60 Rule also advocating fied” and increase the man- costs; pilots exacts substantial are forced to datory 70), retirement re- though they end their careers even 622; printed in J.A. at Charles E. Drebing healthy perfectly fly to able and the al., Early et Cognitive Detection Decline flying public deprived is of the valuable ex Higher Cognitively Functioning in Older pertise that these offer. These costs Neuropsychology Adults, 1, 31, No. not on Age do their own make the (1994) (analyzing battery data on a of tests unreasonable, they may since be unavoidable designed cognitive to screen for decline and if aviation is to be assured this concluding battery that the “exhibits a rela- way, presence but their makes it incumbent tively degree high accuracy”). try on the FAA to to obtain the evidence event, developments recent make it required fully accurately to assess the possible for the FAA to obtain medical and Age need for the 60 Rule. performance pilots flying data importantly, Most 60 Rule stands operations. Europe’s Joint Aviation Au- government-mandated age as an instance of thority as well as several Asian countries particular group discrimination for a of em permit fly past age now to ployees. country’s The ADEA manifests our treaty fly these must be allowed rejection notes, of measures that discriminate airspace. majority U.S. As the this against solely individuals because of their exactly fact creates a natural source of age; purpose “promote sort of its stated was to information on older is employment persons seemingly needed. Another valuable of older based on then- source ability functioning prohibit data on rather than ... [and] are commuter arbitrary age employment.” over 60 who will be discrimination allowed for 621(b). years earlier, operations four after commuter I U.S.C. As indicated I directly gov the ADEA not believe that do regulator as a the FAA in its role

erns OF LAW MASSACHUSETTS SCHOOL necessary ANDOVER, it INC., Proposed to make for the aviation AT Intervenor, Plaintiff-Appellant 60 Rule is to demonstrate occupational qualification and a bona-fide But under the Act. this acceptable therefore America, UNITED STATES ignore FAA can not mean that the does Plaintiff-Appellee congressional altogether. ADEA con embodied demnation discrimination Association, American Bar try duty on the FAA to imposes the ADEA Defendant-Appellee. might away allow it to obtain data that to do No. 96-5247. arbitrary reliance on an with its current as a age cutoff method across-the-board Appeals, States Court of United safety.6 ensuring aviation District of Columbia Circuit. 8,May Argued 1997. III. Conclusion July 15, Decided 1997. ever-vigilant Judges be to ensure must enforcing requirement the APA’s that when decisionmaking they

of reasoned defer expertise. importance

agency of such in regard acute

deference most

determinations, potential cata- given

strophic inadequate safety regula- effects of

tions, imagine agency is difficult judges would be more dis-

decision which implicates

posed accept than one that avia- However, safety. agency deference to

tion

expertise cannot be allowed become tolera- agency

tion of action'—or

case in an area as critical as inaction—even safety. Because I

aviation believe provide explanation

has failed to a reasoned I decision to retain pro-

would remand to the further

ceedings. (1996). appropriations prohibit- 6. A rider to this rider was the 1996 bill Slat. But decision, Transportation Safety ed the Board not in when the FAA National effect rendered study expending perfor- funds to thus is irrelevant a determination Department mance of over 60. See whether the FAA's failure undertake measures pilot functioning Transportation Agencies Appropria- and Related to obtain data on older was 104-205, tions Act of Pub.L. No. reasonable.

Case Details

Case Name: Professional Pilots Federation v. Federal Aviation Administration

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 5, 1997

Citation: 118 F.3d 758

Docket Number: 95-1604, 96-1025 and 96-1026

Court Abbreviation: D.C. Cir.