Airline Pilots Retirement Lawsuit

The BLT (Blog of Legal Times) has posted an update on litigation by pilots against the FAA over the mandatory retirement age. Let me give you the background before that update to give the issue context.

In 1960, the FAA imposed a mandatory retirement age of 60 on pilots in the US. In 1978, the International Civil Aviation Organization (ICAO) adopted a less restrictive rule allowing any member State to prohibit pilots of "foreign" carriers from operating in its airspace as Pilot-in-Command (captain only, no age limit for co-pilots) on or after their 60th birthday. Other countries asked the ICAO to reconsider that rule, and over the last decade, the mandatory retirement age has been challenged in the US by a number of pilots grounded by it.  In 2006, the ICAO adopted 65 as the maximum age for pilots to fly as captain in multi-pilot crews, provided another required pilot is under 60. The US was required as a matter of treaty to accept pilots of foreign aircraft that complied with the ICAO's new rule. In December of 2007, Congress passed and the President signed the Fair Treatment for Experienced Pilots Act (FTEPA), which raised the maximum age for pilots to fly as captain in multi-pilot crews as long as another required pilot is under 60, just like the ICAO rule.

After the ICAO rule went into effect but before FTEPA was enacted, several pilots petitioned the FAA to waive its rule on mandatory retirement at 60. The FAA denied all of those petitions, and last June, the Senior Pilots Coalition, represented by Jonathan Turley has sought review of those petitions in the Court of Appeals for the DC Circuit. When FTEPA went into effect, the law gave these pilots little relief because it was explicitly made not retroactive. In other words, pilots who were under 65 but who had been forced to retire before December 2007 were not exactly helped by FTEPA.

According to a report from bnet,

While not barring their re-employment, the law stipulates that they would have to return stripped of their seniority, meaning lower pay and a drop in schedule, route and vacation bidding as compared to where they were before being grounded. The law says commercial transport pilots who turned 60 prior to Dec. 13, 2007 must be treated as a new hire.

The FAA moved to dismiss the petitions for review on the grounds that FTEPA made them moot. Turley responded, challenging the constitutionality of FTEPA on a number of grounds (here is the memorandum). The BLT reports that the DC Circuit has now set a briefing schedule, and the Coalition's Brief is due June 11. For more information, see this great chronology with links to documents and the broader critique of the mandatory retirement age.

The usual arguments are being deployed for and against the mandatory retirement age. Advocates for mandatory retirement say that safety is the chief concern, and statistically speaking, catastrophic health events like heart attacks, are more likely to happen the older a person gets. Opponents argue that everyone is different, and that there should be an individualized assessment of each pilot's health and ability. They also argue that more experienced pilots are much safer.

One of the really interesting things about this issue is the division among pilots. Air Canada pilots, for example, according to bnet, voted by a 3 to 1 margin to retain the mandatory retirement age at 60. Similarly, according to an Online NewsHour Report, American Airlines pilots opposed FTEPA. Southwest pilots, on the other hand, oppose the mandatory retirement rule. The reason for this is probably tied to benefits.

Southwest pilots don't get a traditional pension from the airline. They have a 401(k) program and profit-sharing instead. If they can work longer, they can build a bigger nest egg.

But at American, pilots have a defined benefit pension plan, where monthly payouts are theoretically guaranteed for life. That could be an incentive to retire earlier.

Those pilots who have lost pension benefits after the financial trouble and restructuring of the last several years are also in favor of working longer to boost their savings. It will be interesting to see how even more recent developments, like mergers and rising fuel costs impact this issue.

MM