Case One: Rationality in Rule Making, Essay Example

In this paper I will answer five questions that have been raised regarding the case of Professional Pilots Federation v. Federal Aviation Administration 118 F.3d 758 (1997). In this case, the Federation addresses the Age 60 Rule, first promulgated in 1959, that commercial pilots flying under 14 CFR Part 121 must retire at age sixty. That rule was changed in 2007, allowing such pilots to fly until age sixty-five. For the purposes of this paper, I will advance additional reasons for making the rule-change earlier. To save space I have omitted the questions.

1. At first glance, a government-imposed mandatory retirement age for a commercial employee strikes one, especially today, as unnecessary and unwarranted. It is indeed “in the manifest interest of the airlines and the insurance companies who insure against plane crashes that the airlines avoid accidents.” However, it is not an entirely free market. For right or wrong, commercial carriers are arguably quasi-governmental entities enjoying quasi-monopolies on airports, nearly all of which are government-owned. But more important, it is arguably true that when the Age 60 Rule was made law in 1959, that pilots of sixty should have retired, and it probably remained true until at least 1980. The reason is that, during that period, the average U.S. commercial airline pilot — a white male — had much less specific and scientific information about the extent of the detrimental effects on heart health of smoking, a cholesterol-rich diet, sedentary lifestyle, excess drinking, and night-flying caused sleep-deprivation.

Self-policing requires an understanding of the trade-offs between preventing a cockpit incident and the routine and — in some cases — premature and perhaps expensive loss of experienced personnel. There was once not enough confirmed, reliable scientific evidence to go by. But there was plenty of statistical data to go by, and they indicated that a man in his fifties (never mind his sixties) was entering into the most dangerous period in his life regarding heart attacks and strokes. This was not unknown to insurance companies. However, those concerns are less justified today. For example, according to one survey conducted in 1998, only 4% of participating pilots smoked (Butler and Nicholas).

Without the federally mandated age-ceiling, any ceiling would at least initially have varied from airline to airline. Then we could have expected competing airlines to make an issue of age in the event of a serious crash involving an older pilot. It seems likely that, to prevent such predatory practices — which would simply hurt the industry as a whole — the airlines would have had to agree on an age-limit anyway, which would have brought the same effects as a federal rule: the unfair loss of employment to perfectly healthy, older pilots.

Finally, it may be true that by mandating a ceiling of sixty, it acted to prevent an even lower ceiling — perhaps fifty-five — enforced by the industry. Remembering that senior pilots earn more money, justifying a lower age-limit in the name of safety could have provided an excuse to take a short-term money-saving advantage in an industry facing rising fuel costs.

2. In the event of a significant crash of a plane piloted by a post-60 pilot, the FAA would almost certainly not be subject to FTCA liability unless the individual pilot had physical deficits that the FAA missed in its routine certification process but manifestly should not have missed. Even then, the liability would not be unique to post-60 pilots, but rather to all pilots with physical deficits that should have disqualified them. Otherwise, there would, in effect, have been no relaxation of the Age 60 Rule in the first place.

3. In my view, the two judges did not treat the medical and statistical evidence rationally. Nor did the FAA. However this was not likely a matter of a deficient education in statistics and human physiology. Regarding this point, consider Air Line Pilots Association, Int’l v. Quesada, 276 F.2d 892, 897–98 (2d Cir.1960), in which the court said “it was not for a court to substitute its own untutored judgment for the expert knowledge” of the [FAA]. So the lack of advanced technological knowledge is itself does not necessarily disqualify a judge from deciding a case.

The problem instead seems to be an inability to either individually or collectively address the lack of basic logic in some of the founding assumptions advocating the Rule. It implies an unwillingness to acknowledge that lack, perhaps because the Age 60 Rule (in my own view) was, after about 1980, a politically supported one based on the long-standing (and at one time perfectly valid) public perception that older pilots constituted a hazard, as well as the public unawareness that younger pilots with demonstrated physical problems were specifically permitted to fly because their health condition was known and could be monitored if not cured. The problem can be seen in the following statements, with my own italic comments added.

• 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 [1973] sufficiently developed.”(O’Donnell v. Shaffer). That argues that long-term blood pressure and heart-rate measurements have no predictive value. It overturns the point in having a physical examination at all, except as an autopsy.
• There was still [1981] 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” (NIH). Without a medical or performance appraisal system, there is also no way to single out those who pose the least hazard.
• “. . .the [1997 Hilton] 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 screening out, over time, pilots more likely to be in accidents” (Professional Pilots Federation v. Federal Aviation Administration). So it seems that, in spite of the statements found in the first two bulleted items, there were indeed tests and standards that one must assume correlate with statistical outcomes dependent on physical condition. What’s more, the pilots being screened out are under the age of 60. One wonders what indices are being used to disqualify selected younger pilots, and why they cannot be used specifically to disqualify selected older pilots as well.

4. I agree with the reasons given for the dismissal of the ADEA claim. It seemed almost comical to me that the Age 60 Rule sanctioned illegal age-based discrimination, and in reading the reasons why the claim was denied and being struck by their cogency, I immediately began to suspect the legitimacy of overturning the Rule in the first place. If APA couldn’t come up with a better rationale than that, then perhaps there was no better rationale. However, I disagree with the decision to put Part 135 commuter pilots under the authority of Part 121 without giving them a waiver to the Age 60 Rule.
5. After 1980 I would have voted to rescind the Age 60 Rule and allow pilots to fly until age 65, or whatever an individual’s specific retirement age vis-à-vis Social Security would have been. By then, the old-school cigarette-smoking generation of sky-god pilots who had begun their careers during World War II and the Mad Men ’60s would have been largely retired.

References

Butler, G. C., & Nicholas, J. S. (2001). Health Among Airline Pilots. Air Line Pilot, 16. Retrieved from http://www.alpa.org/portals/alpa/magazine/2001/March2001_HealthAmongPilots.htm

NIH. (1981). Report of the National Institutes of Aging: Panel on the Experienced Pilots Study 1.

O’Donnell v. Shaffer, 160 U.S. App. D.C. 266, 491 F.2d 59, 61 (U.S. Court of Appeals, D.C. 1974).

Professional Pilots Federation v. Federal Aviation Administration, 118 F. 3d 758 (U.S. Court of Appeals 1997).