Before the
FEDERAL AVIATION ADMINISTRATION
DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C. 20591
In the Matter of the Petition of )
)
Jerry L. Adams, Frank L. Ahern, Andrew A. )
Arthur, David L. Baker, Garry L. Baker, Charles A. )
Bangert III, Robert F. Beagle, Randall L. Bertrand, )
Walter N. Brand, III, Dennis A. Brawford, Donald )
E. Brown, Dallas E. Butler, Willson R. Campbell, )
Guy F. Casey, Eugene R. Cotteen, Arthur A. )
Danley, Jeannie C. deLamos, Alan J. De Sa, )
Robert E. Elwell, Peter R. Fleischhacker, )
Woodson M. Fountain, John J. Fucik, Melvin B. )
Fuller, Lowell A. Gilbert, John W. Gilliam, )
Kenneth C. Har, Woodrow M. Hassinger, Baruch )
Haviv, John R. Houser, John K. Hubert, Charlie )
E. Huff, David H. Jenkins, Robert D. Johnston, )
Edward E. Kirkpatrick, Walter L. Klaus, David E. )
Laird, Richard H. Laumeyer, Joseph D. Lea, )
David A. Lippard, Kenneth A. MacGillivray, Joe )
R. McCabe, J. Peter McElroy, Edward E. Moon, )
Philip B. Nash, David P. Nazarian, J. William )
Nelson, Michael L. Oksner, Philip J. Orban, )
Harold Rhodes, Lewis L. Rich, Werner A. Roder, )
Rodney O. Russell, Paul E. Schueler, Richard )
Selph, Laurence E. Senn, William M. Siegel, )
David A. Skilling, Lee Brandon Smithe, Gary E. )
Stamper, Robert D. Stewart, Phil Stotts, William )
Ternes, John R. Ulbinsky, Doyle R. Vaughan, )
Michael L. Waldron, Arthur B. Ward, I. Jay )
Welch, Donald W. Wetmore, and Bert M. Yetman )
)
For exemption from § 121.383(c) of the Federal )
Aviation Regulations )
PETITION FOR EXEMPTIONS
Petitioners Jerry L. Adams, et al., by their attorneys and pursuant to Section 601(c) of the Federal Aviation Act, 49 U.S.C. § 44701(e) and Section 11.25 of the Federal Aviation Regulations, 14 C.F.R. § 11.25, hereby petition for exemptions from the "Age 60 Rule," 14 C.F.R. § 121.383(c).
A. Summary of Petitioners' Position
Petitioners are 69 current and former commercial airline Captains who seek exemptions from the FAA's Age 60 Rule, 14 C.F.R. § 121.383(c), so that they may work beyond age 60 as airline pilots in operations under Part 121 of the Federal Aviation Regulations.
The grant of Age 60 Rule exemptions to the petitioners would be in the public interest and would provide a level of safety equal to or greater than the Age 60 Rule itself, based on the following:
(1) Under the auspices of a panel of nationally and internationally recognized experts in the fields of aerospace medicine, cardiology, internal medicine, geriatrics, and neuropsychology, petitioners have undergone extensive medical and neuropsychological testing pursuant to the "Age 60 Exemption Protocol" developed by the panel. The protocol, far more rigorous than the FAA first-class medical examination, assures a level of safety equal to or greater than reliance upon a chronological age cutoff and the standard FAA first-class medical examination alone. Each petitioner is unique, when compared to others affected by the Age 60 Rule, because each has been determined by the expert panel to be qualified, from a medical and neuropsychological standpoint, to perform airline pilot duties beyond age 60. The statement of the Age 60 Exemption Panel, signed for the Panel by members Edward G. Lakatta, M.D., and Robert N. Butler, M.D., is Petitioners' Exhibit 1 ("PX 1"). The Age 60 Exemption Protocol is Attachment B to PX 1.
(2) Advances in medicine and testing have rendered obsolete the rationale for the Age 60 Rule as applied to these petitioners. Petitioners rely upon the significant improvements in health, health awareness, longevity, vigor with advancing age, medical diagnosis, early detection of disease, and prediction of future health status in comparison to when the FAA promulgated the Age 60 Rule in 1959. Petitioners also rely upon the advancements in aircraft, simulator technology, and crew coordination and incapacitation training. These advancements have been employed not only in the field of medicine at large, but also by the FAA as well. Recently there has been a burgeoning of FAA certification of pilots under age 60 with serious cardiovascular, neurological, and psychiatric disorders and diseases, due to the ability of modern medicine to assess the safe performance of these persons on an individualized basis. Petitioners, on the other hand, have been shown to be free of such disease, and they have extraordinary experience as highly skilled airline pilots.
(3) The FAA's prior policy of not granting exemptions from the Age 60 Rule is not supported by substantial evidence. First, medical science has advanced to the point where the medical rationale underlying the Age 60 Rule is invalid. Second, the FAA has utilized individualized techniques in the medical certification process to such a great extent in recent years that the refusal to allow age 60 pilots to fly employing the same well-established testing procedures is an abuse of the agency's discretion. Third, the FAA has blindly adhered to the Age 60 Rule, has deliberately disregarded the application of advances which would allow relief from the rule, and has violated its oft-stated commitment and statutory obligation to pursue alternatives to the rule. Fourth, the FAA's rigid adherence to an arbitrary age cutoff in all instances runs counter to the national policy against age discrimination, which requires individualized assessment in safety-related jobs, where feasible, irrespective of age. Fifth, the FAA has pursued a course of deception for many years in order to retain a rule that cannot be justified medically or operationally. As one example, FAA sought to deceive the Court in Baker v. FAA, 917 F.2d 318 (7th Cir. 1990), by claiming in that litigation that the "Flight Time Study" justified the denial of exemptions, when it knew at that time that the study was hopelessly flawed and did not support any conclusion. Under recognized standards of administrative law, the exemptions should be granted.
B. The Petitioners
The 69 petitioners are current and former commercial airline Captains from these airlines: American (8), American Eagle (1), American Trans Air (1), Airborne (2), Continental (18), Delta (9), DHL (2), Japan (1), Northwest (3), Southwest (6), Trans World (2), United (13), UPS (1), and US Airways (2) (PX 1, Attachment A). They range in age from 54 to 68. Those under age 60 are employed as airline Captains. Those over age 60 relinquished flying duties because of the Age 60 Rule or remain employed with the airlines as flight engineers. Biographical statements of the 69 petitioners appear in PX 2.
C. Reasons for Granting the Exemptions
1. The Age 60 Exemption Panel
The Age 60 Exemption Panel was formed in 1999 to evaluate the medical/neuropsychological status of airline pilots seeking to continue their employment after age 60. The Panel is comprised of nationally and internationally recognized experts in the fields of cardiology, aerospace medicine, internal medicine, geriatric medicine, and neuropsychology.
Patricia P. Barry, M.D., M.P.H., is Chief, Geriatrics Section, of the Boston University School of Medicine and Director, Boston University Gerontology Center. She is certified by the American Board of Internal Medicine with Added Qualifications in Geriatric Medicine. She is the author of numerous book chapters, monographs, scientific articles, and other publications in the field of geriatric medicine. She has been a member of the editorial board of Geriatrics since 1984, and of Age and Ageing since 1998. She is a Fellow of the American Geriatrics Society (PX 3).
Robert N. Butler, M.D., is President and CEO of the International Longevity Center U.S. He was Director, National Institute on Aging, National Institutes of Health from 1976-1982. He is prominent in the field of gerontology and geriatrics, having received a Pulitzer Prize for his book, Why Survive? Being Old in America, and numerous other awards including, in 1998, the Andrus Foundation Lifetime Achievement Award (PX 4).
Audie W. Davis, M.D., is Medical Director, Harvey Watt and Co. During the years 1964-1996, Dr. Davis was Chief, Medical Qualifications Branch (1964-1966) and then Manager, Aeromedical Certification Division, of the Federal Aviation Administration. In those positions Dr. Davis was directly responsible for medical certification of all pilots in the United States. Dr. Davis has authored many reports and articles relating to medical conditions and certification issues in pilots. In 1993, he received the Airline Medical Directors Award for outstanding contributions to the safety and promotion of national and international aviation through the proficient and innovative practice of Aerospace Medicine. Dr. Davis is a leading authority in the areas of medical fitness and certification of pilots (PX 5).
Robert W. Elliott, Ph.D., of Manhattan Beach, California, has been President of the American Board of Professional Neuropsychology, Executive Board of the National Academy of Neuropsychologists, and Continuing Education Chairman of National Academy of Neuropsychologists. Dr. Elliott is a Diplomate in Clinical Neuropsychology and has had, in the past 20 years, extensive experience in the psychological and neuropsychological evaluation of over one thousand airline pilots seeking FAA certification, exemption, and special issuance with such problems as emotional and psychiatric illness, alcohol and other substance abuse, and developmental, neurological and injury deficits (PX 6). Dr. Elliott has served as a consultant to the FAA and was recognized by the National Transportation Safety Board in 1994 as an expert with aviation-related experience enabling him to compare an individual pilot's "test results with pilot norms" (PX 268 at p. 22).
Steven R. Gambert, M.D., is Chairman of Medicine and Physician-in-Chief, Sinai Hospital of Baltimore. He is Professor of Medicine, Department of Medicine, Johns Hopkins University School of Medicine and Program Director, Johns Hopkins University/Sinai Hospital Program in Internal Medicine. Dr. Gambert is a Diplomate, American Board of Internal Medicine. He is Board Eligible in Endocrinology and Metabolism, and he holds additional qualifications in Geriatric Medicine, American Board of Internal Medicine. Dr. Gambert has been prominent in the field of geriatrics and gerontology for over twenty years. He is a Fellow of both the American Geriatrics Society and the Gerontological Society of America. He is the author or co-author of 88 peer-reviewed publications, 110 additional publications, 85 books, monographs and chapters, and 105 abstracts (PX 7).
Edward G. Lakatta, M.D., is Director, Laboratory of Cardiovascular Science, Gerontology Research Center, National Institute on Aging, National Institutes of Health, in Baltimore, Maryland. He is Professor of Medicine at Johns Hopkins School of Medicine and Adjunct Professor of Physiology at University of Maryland School of Medicine. He has received numerous honors and awards, including the NIH Director's Award, National Institutes of Health, and the Novartis Prize for Gerontological Research, International Association of Gerontology (1999). Dr. Lakatta has authored or co-authored 416 scientific publications in the field of cardiology and is a world-renowned expert in the field of cardiovascular aging (PX 8).
Stanley R. Mohler, M.D., is Professor and Vice Chairman of the Department of Community Medicine and Director, Aerospace Medicine, of the Wright State University School of Medicine in Dayton, Ohio. Wright State is this country's only civilian school of aerospace medicine. Dr. Mohler has served as Secretary and Treasurer of the American Board of Preventive Medicine and as President of the Aerospace Medical Association. Dr. Mohler has authored or co-authored 235 scientific publications, principally in the fields of aerospace medicine, aging, and other related disciplines. Dr. Mohler served as a member of the FAA's Risk Factor Working Committee of the American Medical Association "Review of Part 67 of the Federal Air Regulations and the Medical Certification of Civilian Airmen" (PX 9).
Thomas T. Perls, M.D., is a Diplomate and Fellow of the American Board of Internal Medicine, with additional qualifications in Geriatric Medicine. He is the author of numerous publications in the field of geriatrics and gerontology, an Assistant Professor at the Harvard Medical School Division on Aging, Director of the New England Centenarian Study, and Acting Chief, Gerontology, at Beth Israel Deaconess Medical Center. Dr. Perls is the author or co-author of four books, including Living to 100: Lessons in Living to Your Maximum Potential at Any Age (1999) (PX 10).
T. Franklin Williams, M.D., is Professor of Medicine Emeritus, University of Rochester and, from 1995-1998, Distinguished Physician, Veterans Administration Medical Center in Canandaique, New York. From 1983 until 1991 Dr. Williams was Director of the National Institute on Aging, National Institutes of Health, in Bethesda, Maryland, and he is currently a member of the Institute of Medicine, National Academy of Sciences. He has received numerous awards for his service in the fields of gerontology and geriatrics including, most recently, the Gustav Lienhard Award from the Institute of Medicine, National Academy of Sciences. Dr. Williams is the author of thirty publications in his field, as well as having served as editor of the Oxford Textbook of Geriatric Medicine in 1992 (PX 11).
2. The Age 60 Exemption Protocol
The Age 60 Exemption Panel developed and approved a medical/neuropsychological protocol for use in evaluating the fitness of applicants for exemptions from the Age 60 Rule. The protocol utilizes a well-established battery of medical/neuropsychological tests and procedures to determine medical/neuropsychological fitness as an airline pilot after age 60. They are:
Medical History (including medication review)
Physical Examination
Blood Pressure (from left and right arms) and Heart Rate while sitting; Blood Pressure and Heart Rate in either arm after one minute standing
Chem-Screen Profile, SMAC-24 or Comparable Blood Chemistry Tests (including blood lipid tests)
Hemoccult
Urinalysis
Chest X-Ray
Audiometry
Vision Tests (distant, intermediate and near)
Tonometry
Resting Electrocardiogram
Exercise Stress Test (Bruce or Balke Protocol) (if positive, then Stress Thallium Scan)
---------------------------------------------
CogScreen: Aeromedical Edition
Wechsler Adult Intelligence Scale-Revised
Rey Auditory Verbal Learning Test
Trail Making Test
Controlled Oral Word Association Test
Paced Auditory Serial Addition Test
The medical testing provided in the Protocol is well-established in modern medical practice, and is required by FAA in circumstances when a question has arisen regarding medical status. The neuropsychological assessment was developed principally by Dr. Elliott, in collaboration with members of the Panel and other expert neuropsychologists in the United States. Dr. Elliott is frequently relied on by FAA as an authority in such matters as they relate to pilot certification. Dr. Elliott has provided additional explanation of the tests used, which were designed to assess auditory and visual perception, reaction time and perceptual speed, dexterity, spatial orientation, and directionality. In the area of cognitive processes, the testing evaluated memory, information processing, problem solving, flexibility, attention, foresight, vigilance, reasoning, and multi-tasking. The CogScreen testing has been approved by FAA and utilized as a "cognitive screening test for aviation medicine" and as a "tool for assessing brain dysfunction." (PX 254 at p. 35). Based on the comprehensive protocol developed and applied, Dr. Elliott concluded that "there is no justification, from a psychological or neuropsychological perspective, to support a rule which mandates that commercial pilots must retire at any specific age, including age 60 years" (PX 31).
3. Statement of the Age 60 Exemption Panel
The Age 60 Exemption Panel has determined that the ability to make individual assessments of pilots' physiological/psychological status exists in the scientific community, and the methods available for those determinations are well known to the FAA and have been used routinely in the evaluation, recertification, and monitoring of pilot personnel. The Panel found that the protocol utilized here, together with additional testing as required on an individual basis, "are sufficient to evaluate the fitness of pilots over sixty years of age from a medical/neuropsychologic standpoint." The Panel concluded:
From a medical/psychologic/operational standpoint, the medical community has the capability of evaluating pilots over sixty years of age on an individual basis. New information, techniques, lifestyle changes, and understanding of the aging process as separate and distinct from disease indicate that there are many airline pilots who are well qualified to continue in their productive careers beyond the arbitrary age of sixty.
In conclusion, we strongly recommend that exemption from the provisions of 14 C.F.R. § 121.383(c) be granted for the individuals named on Attachment A. We urge the FAA to favorably consider this request.
4. Examination and Testing of Petitioners
Following approval of the exemption protocol, applicants were examined and tested as specified by the Panel. Results were then evaluated by the Panel members in conference, and applicants were approved or deferred for repeat or supplemental testing. Accompanying this petition are petitioners' complete medical/neuropsychological records as submitted to the Panel. In those cases where additional data were requested and provided, the results are arranged generally in date order. Petitioners' submissions are generally preceded by summaries of the examining physicians and, in some instances, by follow-up reports on additional tests and procedures that were not required as part of the basic protocol. The petitioners have been examined carefully and approved by the Panel, following successful completion of the protocol and all additional procedures required, and each has been strongly recommended for exemption from the Age 60 Rule.
5. The FAA Has Already Granted Exemptions to Air Carrier Pilots Over Age 60
In November 1992 the FAA granted 21-month exemptions from the Age 60 Rule for 18 pilots employed by international air carriers Icelandic and Corse-Air, permitting them to serve as pilots-in-command on air carrier aircraft entering the United States. The exemptions ended on July 31, 1994 (PX 241). No adverse effects were reported, and FAA has never published an analysis of the effects of these exemptions. Foreign airlines are now required to comply with the U.S. Age 60 Rule for their pilots-in-command in U.S. airspace, but there is no age limitation for co-pilots of foreign airlines who fly aircraft to airports within the United States. Since our government has never filed "differences" from the International Civil Aviation Organization ("ICAO") rule which provides an age 60 limit only for pilots in command, the FAA has apparently concluded that foreign airline co-pilots over age 60 but not U.S. co-pilots operate in the public interest and do not adversely affect the safety of air transportation.
In 1995, FAA published regulations to require commuter and regional airline operators (aircraft seating 10 or more passengers) which conduct passenger-carrying operations under FAR Part 135 to comply with the requirements of 14 C.F.R. Part 121. See 60 Fed. Reg. 65832 (Dec. 20, 1995). Determining that the same rules which apply to airlines should also apply to the commuter airlines, the FAA merged the regulations, thereby applying the Age 60 Rule to Part 135 pilots. Prior to that time, no age limitation had ever applied to pilots operating under Part 135, and many hundreds of pilots have served as commuter and regional airline pilots after their sixtieth birthdays. Moreover, accident/incident data for Part 135 pilots over age 60 have never warranted the imposition of an age 60 limitation, and FAA never claimed otherwise. Indeed the three major commuter accidents which were specifically referenced by FAA to support the regulatory change involved considerably younger, less experienced pilots, as shown here:
1. 12/1/93 in Hibbing, MN. Pilot: Marvin Falitz, age 42.
2. 1/7/94 in Columbus, Ohio. Pilot: Derrick White, age 35.
3. 12/13/94 in Morrisville, NC. Pilot: Michael Hillis, age 29.
60 Fed. Reg. 16232 (1st column); see 60 Fed. Reg. 59643-44 (Nov. 28, 1995).
Upon merging Part 135 operations into Part 121, FAA announced that the application of the Age 60 Rule to commuter pilots would be delayed until December 20, 1999. Thus, FAA effectively granted four-year "exemptions" for all pilots then over 60 years of age. As announced in 14 C.F.R. § 61.3(j)(3) and § 121.2(i)(1), (2), all commuter pilots who were over 60 years of age when the new rule was published on December 20, 1995, and even after March 20, 1997 (the effective date for general Part 121 integration), were allowed to continue as pilots in command of passenger-carrying aircraft until December 20, 1999, at which time the "exemptions" expired.
Part 135 pilots over age 60 when the exemption was announced are believed to number well over 100, and perhaps 200. No in-flight incapacitations or accidents are known to have occurred, and no adverse safety consequences resulted. A study of 31 of those "exemption" recipients determined that, since their sixtieth birthdays, they flew 101,800 hours as commuter air carrier pilots without a single accident or incident (PX 91). Data regarding these pilots who flew under Part 121 from March 20, 1997 to December 20, 1997, as well as data regarding the hundreds or thousands of Part 135 pilots who flew past their sixtieth birthdays before March 20, 1997, have been available to the FAA for many years. The fact that the agency never once asserted that these data supported an age 60 limitation for commuter pilots is strong evidence that the many years of commuter and regional airline experience with pilots over age 60 have never warranted the implementation of an age limitation.
This four-year grant of "exemption" (almost three years from March 20, 1997) to newly-covered Part 121 pilots was the first time since the Age 60 Rule was enacted in 1959 that the FAA had allowed persons over 60 years of age to serve as pilots in Part 121 operations. Since regional airline pilots fly aircraft as sophisticated and advanced as airline pilots employed by larger airlines, and fly passengers in the same airspace and in and out of the same airports, the medical/operational data regarding these pilots are obviously highly relevant. Despite their availability, the FAA has failed to publish the data, undoubtedly because they would support the grant of exemptions here.
6. FAA's Recognition of Advances Supports the Grant of Exemptions
The FAA has followed advances in medicine and has permitted persons under age 60 with conditions previously considered disqualifying to continue their employment as airline pilots; their numbers increase every year (PX 21). As the FAA has stated:
Advances in aviation medicine and changes in FAA policies and procedures during recent years have resulted in the medical certification of pilots, who in earlier times, would have been denied. Persons diagnosed as having alcoholism, coronary heart disease, and various other diseases are, in many instances, now certified as a special issuance. For example, pilots with hypertension maintain their certificates while taking medication to control their blood pressure, and the time lapse has been reduced between myocardial infarction, bypass surgery, etc., and re-application for certification.
(PX 267 at p. 1)
For example, the number of diabetics controlled by hypoglycemic drugs that FAA has approved has increased significantly over the last five years, despite the fact that FAA has concluded that "every diabetic is at some risk for hypoglycemia which can produce impaired cognitive function, seizures, unconsciousness, and death." 59 Fed. Reg. 67247 (1st column). The FAA has granted medical certificates to thousands of airline pilots under age 60 with serious medical pathology which inevitably increases their risk of medical disability (see PX 24). In 1999 alone, FAA granted medical certificates to 6,072 airline pilots under age 60 who had significant medical pathology, permitting them to operate as airline crewmembers. The numbers in prior years were equally substantial. The medical conditions ranged from defective vision to spinal cord injuries, and from disturbance of consciousness to blindness in one eye and cerebral palsy (PX 24). According to the Air Line Pilots Association, the FAA is "comparatively lenient in granting waivers to pilots [under age 60] for medical conditions," having granted 8,189 such waivers in 1998 alone (PX 25).
As the FAA has observed:
Discretion in the issuance of medical certificates has always been a feature of the FAA medical certification system. . . . To be granted a special issuance, an airman has had to demonstrate by operational experience, flight testing, special practical evaluation, or a special medical evaluation that he or she can carry out the appropriate airman duties without endangering public safety during the prescribed time period of the medical certificate. 59 Fed. Reg. 53230 (Oct. 21, 1994).
The FAA has recognized and moved forward to apply in practice the near revolution in modern medical evaluation, monitoring, and treatment in recent years. By 1979, for example, the FAA had returned to flight service only two airline pilots-in-command after diagnosis of heart disease. In 1982, the FAA stepped up its pace of certifying airline pilots with medical defects with the adoption of very significant amendments in its medical regulations. In the particularly important area of cardiovascular disease, changes in 1982 permitted the accelerated use of the "special-issuance" procedure, which was applauded by the American Medical Association as having "demonstrated an understanding of the advances in cardiovascular diagnosis, treatment, and rehabilitation." As a result, FAA medical requirements were relaxed "to allow airmen to continue flying with various medical problems not previously acceptable." Consistent with advances in detection and monitoring of cardiovascular disease, during the period January 1, 1982 through March 31, 1986, FAA recertified pilots under the special issuance process with the following conditions (PX 14, 15):
Condition Number Recertified
Myocardial infarction 51
Coronary artery bypass
graft surgery and angioplasty 66
Other cardiovascular conditions
(aortic valve replacement,
arrhythmia, angina, mitral valve
prolapse, etc.) 21
By December 31, 1998, the agency had approved the following pilots holding first and second class medical certificates:
Myocardial infarction 509
Coronary artery bypass surgery 458
Valve replacement 50
Liver transplant 8
Kidney transplant 42
Convulsive reactions
(epilepsy, grand/petit mal) 94
Alcoholism 1193
Diabetes, controlled by diet 628
Diabetes, controlled by hypoglycemic drugs 532
(PX 90)
The FAA has applied modern medical diagnosis and monitoring in other areas as well. Airline pilots under age 60 diagnosed as having strokes, carotid artery disease and surgery, seizures, right lobe arterial malformations, cerebral infarctions and occlusions, brain stem transient ischemic attacks, transient global amnesia, recurrent syncopal attacks, transient ischemic attacks, and cerebral endarterectomy have all been returned to full airline pilot duties. In the psychiatric area, the FAA has certified airline pilots under age 60 engaged in drug abuse and trafficking, criminal sexual conduct, psychoses, phobic conditions, depression, and other psychiatric conditions (PX 14, 15). Airline pilots under age 60 have also been returned to flying duties following other serious conditions, including carcinomas, diabetes, blindness (in one eye), deafness (in one ear), and ulcers.
The application of advances in medical testing and techniques is especially evident in the FAA's certification of alcoholic pilots. Despite the known risk of relapse, and despite the profound effects of alcohol on cognitive processes which often remain even with prolonged abstinence, the FAA has applied modern medical science to recertify chronic and acute alcoholics and other substance abusers following extensive evaluation attesting to the integrity of their medical, psychiatric, and psychological status.
Petitioners' Exhibit 73 is an FAA computer printout entitled, "Airline Pilots With Waivers Since Jan. 1, 1980 (6/14/86)." This list provides evidence of 1800 active airline pilots who have received FAA "waivers" (Statements of Demonstrated Ability) permitting their service in airline operations with such medical defects as external and internal eye problems, deficient distant and color vision, deficient hearing, serious muscle, bone, joint, and neurological problems, and amputations.
Dr. Frank Austin, former FAA Federal Air Surgeon, stated that for pilots with disqualifying medical conditions, "in 1985 we issued twice as many waivers [special issuances] as the year before" (PX 75 at p. 83). Dr. Austin revealed that, for pilots having coronary bypass surgery, the FAA returned to flying many more pilots than before 1985, and was making "judgments that [are] less conservative than they were shortly before" (PX 75 at p. 84). In addition, the FAA has "reduced the time for when a [coronary] bypass patient can reapply from two years to six months." On the subject of pilot age, Dr. Austin stated that "there are older pilots who can fly very safely and there are those who are hazardous. It's a matter of proficiency" (PX 75 at p. 84; see PX 17, 18, 74).
The FAA's application of modern medical knowledge to recertify persons under age 60 with serious medical disorders demonstrates that the agency has the capacity to individualize its medical considerations and to base judgments on the latest developments in medicine and pilot proficiency assessment. The criteria accepted by the FAA for certification do not always adhere to a specific protocol, nor has certain and absolute prediction of future health status been required. Indeed, alcoholic relapses and subsequent cardiac and neurological events among exemption recipients are more likely than among asymptomatic pilots, yet they have not deterred the FAA from continuing to apply individualized criteria. Given this background, the individualized treatment of airline pilots over age 60 who are free from impairing disease represents far less uncertainty as to future adverse events and performance than pilots under age 60 with known pathology. Further, the FAA's past and present experience with thousands of private, corporate, commuter, and air taxi pilots over 60 years of age, as well as the more than 2000 flight engineers over age 60 who have served or are now serving in air carrier operations, is compelling evidence that the FAA has sufficient data and the means to grant exemptions from the Age 60 Rule. Indeed, as of December 31, 1998, FAA employed 4,904 active airmen (PX 255 at p. 36), as to whom no age 60 limit has ever applied. Obviously, the FAA is confident in its ability to evaluate age 60 pilots on an individual basis. As stated in a recent scientific article published by the American Geriatrics Society:
If the FAA improved its medical certification procedures, older pilots with pathologic conditions such as early cognitive disease, vision or hearing impairment, or an increased cardiovascular risk, would most likely be identified. Given that normal age related changes up to about age 70 are mild, a gradual increase of the mandatory retirement age from age 60 to approximately age 70 seems justified if adequate health and performance monitoring are carried out.
* * *
The development of an improved risk assessment strategy is required, not only in the interest of avoiding age discrimination but also in the interest of improving and maintaining aviation safety.
(PX 253 at p. 530).
In response to a letter from Stanley R. Mohler, M.D., Federal Air Surgeon Dr. Frank Austin has agreed that "there is no medical basis for the [age 60] rule, and that "[i]f the operations people want to continue to fight for the rule, let them make their own case, as there is no longer a medical basis for it." Dr. Austin further stated:
I believe this and [FAA Administrator] Admiral Engen believes this. He wants to keep the age 60 rule now. I will support the Admiral in his position. When it can be done age 60 will be eliminated (I think!) It's an Economic Issue !
(PX 69; emphasis supplied). Dr. Austin wrote to Elihu York, M.D., Director of Occupational Medicine/Employee Health at Hartford Hospital in Hartford, Connecticut (PX 70), advising Dr. York that the Age 60 Rule "is not a medical rule[;] it's operational, and to date the Administrators have not wanted to change the operational rule." (underlining in original).
7. Risk Management
The FAA's prior inflexible adherence to the Age 60 Rule is based largely on its oft-repeated statement that "there is no way to predict, with reliable accuracy, the presence or onset of cardiovascular problems." In 1977, FAA Administrator Langhorne Bond stated, "The age 60 rule is based on the fact that medical examinations of an individual pilot cannot sufficiently predict his future health and functional capacity." Hearings on H.R. 3948 at p. 34.
Any requirement that petitioners be able to "predict" with absolute certainty their future health status imposes a standard which exceeds that which guides FAA actions in granting medical certification, including waivers and exemptions, for airline pilots under age 60. Moreover, a standard of "absolute" certainty does not exist in medicine, since aviation itself "is not a safe activity" (PX 16 at p. 8). Yet, the risk of an airline accident being caused by the medical incapacitation of the pilot is "practically nil" (PX 13 at p. 13). The airlines have "a redundant system . . . which is built in. There's two pilots minimum . . . on most of the airplanes" (PX 13 at p. 13).
The tolerance of "acceptable" risks is nowhere more clearly demonstrated than in the great number of exemptions and special issue certifications granted in recent years. The FAA has certified, in the past ten years, more airline pilots (under age 60) with known heart disease than it had in the previous thirty. The FAA has assumed this potential increased risk in the face of some vigorous criticism based on the application of modern medical principles, state-of-the-art evaluations, and "opinions from specialists in the field" (PX 13 at p. 13). Dr. Austin summarized the FAA's philosophy on airman certification as follows (PX 13 at p. 14):
We have got to make the decision, and I'm not making it in an arbitrary way, although I have been accused of it. We are looking at these people individually. We see they are functionally good. We see the risk is low, at least acceptable in the aviation context. Not saying that they won't have progressive disease. Not saying they won't die of a heart attack in their sleep or with their lover or whatever. The high risk business aviation is a low risk compared with some of the other stuff these cardiovascular guys have to go through.
So, we are making those decisions, and we are all crossing our fingers. If we only did five, and waited five years to see how it worked, and one or two of them had trouble, statistics would be terrible, wouldn't they? If we do a hundred we are not experimenting, we are not just putting out people that we think are unsafe; we will not put out anybody that we think is unsafe by any means if we do a hundred, two hundred, and nothing happens, then our statistics are better if one of them dies at home, where I hope he will if he has to.
See PX 16; see also Lowrance, William W., Of Acceptable Risk: Science and the Determination of Safety (1976) at pp. 8, 75.
The FAA's accelerated relaxation of medical standards is not limited to the cardiovascular system. The FAA has granted increasing numbers of alcoholics the right to return to flying despite the fact that at least fifteen to twenty percent have "relapsed," an obvious threat to airline safety. For alcoholics who received a second exemption or special issuance, the relapse rate is as high as thirty percent (PX 19 at p. 9). Not only has the alcohol program continued despite the known risk of alcoholic relapse, it has accelerated from just 400 in 1983 to well over 1000 today.
There is no question, as FAA scientist Charles F. Booze, Jr. has noted, that "medical requirements have been relaxed over recent years to allow airmen to continue flying with various medical problems not previously acceptable" (PX 13 at p. 4). These changes have occurred, according to the FAA, "as a result of the evaluation of aviation medicine and increased efforts in the area of aeromedical research." Dark, Shirley J., "Characteristics of Medically Disqualified Airman Applicants in Calendar years 1982 and 1983," Aviation, Space, and Environmental Medicine, May, 1987, p. 452-53. The acceptance of greater risk in the recertification of pilots under age 60 with known pathology (in some instances progressive pathology) is squarely at odds with the refusal to consider exemptions for age 60 pilots. This is particularly true for petitioners, whose meticulous and unique submissions supported by the expert Age 60 Exemption Panel's recommendations should be considered on an individual basis.
In a Federal Aviation Administration publication entitled, "Medically Disqualified Airline Pilots," June 1986, Final Report (DOT/FAA/AM 86/7) ("FAA Report"), the FAA noted that its "requirements for issuance of a first-class medical certificate result in this group being essentially purged of disease prevalence that contributes to higher rates for other groups." Consistent with improved health practices among older pilots as reflected in the petition, the FAA found that the "[d]enial rates of older pilots have decreased [1.28% for pilots in the 55-59 age interval] and rates for younger pilots have increased when compared with previous studies' rates." FAA Report at pp. 2, 3.
8. Health, Longevity, and Medical Progress Since 1959
The FAA's Age 60 Rule was implemented based on medical evidence available in 1959. Since that time, there have been significant improvements in health, health awareness, longevity, vigor with advancing age, medical diagnosis, early detection of disease and prediction of future health status. As Panel Member Dr. Robert Butler reported based on population studies, people in industrialized nations are living longer than ever before. "In this country alone, average life expectancy from birth has increased by more than 25 years, and nearly five of those 25 has been added to average life expectancy from base age 65" (PX 71). As observed by noted gerontologist John W. Rowe, President of the Mount Sinai Medical Center, we are not only living longer, but there is "compression of morbidity in old age," and the prevalence of chronic disorders including dementia, hypertension, and stroke is falling. Mortality rates due to both cardiovascular disease and stroke "have steadily declined from the 1960s through the 1980s in the United States" (PX 258). "Health and functional status in late life are increasingly seen as under our own control" (PX 232). These improvements, when combined with advancements in aircraft, simulator technology, and crew coordination and incapacitation training, all make plain that whatever rationale may have existed for an age 60 limitation in 1959 no longer exists in 2000.
It hardly needs repeating that there has been tremendous progress in medicine, particularly in the detection and treatment of disease, and a growing recognition of those lifestyles, diets, and cardiovascular risk factors incompatible with good health and longevity. As noted by Panel Member T. Franklin Williams, M.D., when he was Director of the National Institute on Aging, recent "research has documented . . . the maintenance of good health and functioning in many persons well beyond the age of 60, and has documented the predictive value of certain tests." The risk of a heart attack in the next four or five years in a carefully examined, healthy man age 60-70 is less than 5 percent the same risk that exists for carefully examined, healthy men age 40-59 (PX 259).
In 1975, Panel Member Dr. Robert N. Butler published the Pulitzer Prize-winning book, Why Survive Being Old in America, in which he dispelled the notion that chronological age was equivalent to physiological and psychological deterioration. Dr. Butler noted that "older people actually become more diverse rather than more similar with advancing years" (p. 7), and that "psychological flexibility, resourcefulness and optimism characterized the group" of older persons (p. 370). "Not confirmed was the previous belief that cerebral (brain) blood flow and oxygen consumption necessarily decrease as a result of chronological aging" (p. 370). "Intellectual abilities did not decline as a consequence of the mysterious process of aging but as the result of specific diseases. Therefore 'senility' is not an inevitable outcome of aging" (p. 370). Nor is "response slowing an inevitable consequence of the aging process." Hayflick, "When Does Aging Begin?," Research on Aging, vol. 6, no. 1, p. 100 (Mar. 1984).
Gerontologist Alexander Comfort has written that in the absence of ill health, such as untreated high blood pressure, aging has no adverse effect on intelligence or learning power. "Age Prejudice in America," Social Policy, 7:3, p. 3. Nov./Dec. 1976. One of the more recent findings of the Baltimore Longitudinal Study On Aging is that substantial declines in memory do not occur until individuals reach their late 70's, and even then not in all persons. Zoler, M.L., "What is Aging? Highlights of a 25-year study," Geriatrics, 39(8):85-87 (August 1984). Dr. John Rowe, then head of Harvard's Division on Aging, noted the "substantial variability" within age groups and stated that the so-called cognitive loss previously considered intrinsic to aging "is caused in part by extrinsic factors and may therefore be preventable." "Human Aging: Usual and Successful," Science, Vol. 237 at p. 143 (Jul. 10, 1987).
Studies have made clear the benefits of mandatory physical fitness as one of the most important elements of successful aging. It has been shown that many of the changes assumed to be caused by aging decline in lean body mass, increase in fat tissue, calcium wastage, decreased cardiovascular fitness, and alterations in blood lipids are the same changes which occur with a lack of physical exercise. Dr. Walter Bortz has concluded that "a high degree of physical fitness should offset the age changes." "Effect of Exercise on Aging Effect of Age on Exercise," Journal of the American Geriatrics Society, Vol. 28, No. 2, Feb. 1980. Epidemiologist Dr. James Fries published his findings of a rectangularization of the survival curve, meaning that our population is becoming continuously healthier, and that morbidity (disease) and senescence are becoming compressed in duration and delayed in terms of onset. "The end of the period of adult vigor will come later than it used to. Postponement of chronic illness thus results in rectangularization not only of the mortality curve but also of the morbidity curve." "Aging, Natural Death, and the Compression of Morbidity," The New England Journal of Medicine, 303(3):130-135 (July 17, 1980).
Not only have there been increases in life expectancy and advances in our understanding of the aging process, but tremendous progress has been made in the diagnosis and treatment of disease as well. The Eighth Bethesda Conference of the American College of Cardiology issued its "Cardiovascular Problems Associated with Aviation Safety" in 1975, in which leading experts in the field collaborated on reports designed to broaden our understanding of cardiovascular disease and advancements in screening and early detection. Electrocardiographic stress testing and the evaluation of conventional risk factors, including cigarette smoking, left ventricular hypertrophy, and glucose intolerance were shown to have value in the determination of relative risk for later cardiovascular events. This study formed the basis for FAA relaxation of certification requirements and the grant of exemption for hundreds of airmen with a wide variety of cardiovascular problems. Even more recently, exercise myocardial perfusion scintigraphy has been shown to be an important tool for screening for evidence of myocardial ischemia in apparently healthy aircrew members. G.S. Uhl, T.N. Kay, J.R. Hickman, Jr., M.A. Montgomery, and G.M. McGranahan, Jr., "Detection of Coronary Artery Disease in Asymptomatic Aircrew Members with Thallium-201 Scintigraphy," Aviation, Space, and Environmental Medicine, 51(11):1250-55 (Nov. 1980). These and other recently developed techniques prompted the American Medical Association to note, in conjunction with pilot medical standards, the "enormous advances that have been made in diagnosis and treatment over the last twenty years."
During the 1970s cardiovascular mortality began what has continued to be a persistent decline. Age-adjusted cardiovascular death rates in the United States fell 25% in the decade ending in 1979, and the decline seems to be continuing through the present. William B. Kannel, M.D., "Meaning of the Downward Trend in Cardiovascular Mortality," Journal of the American Medical Association, 247(6):877 (Feb. 12, 1982). Dr. Kannel stated that "one unequivocal conclusion is that these diseases [coronary heart disease] are not an inevitable consequence of aging or genetic makeup and can be prevented." Between 1970 and 1983, age-adjusted death rates declined by 26 percent for heart disease, the leading cause of death, and by 48 percent for stroke. Health United States 1984, U.S. Department of Health and Human Services, Public Health Service, December 1984. These trends affirm that "atherosclerosis is not inevitable, as a result of age or genetic background, but preventable." James A. Schoenberger, M.D., "The Downward Trend in Cardiovascular Mortality: Challenge and Opportunity for the Practitioner," Journal of the American Medical Association, 247(6):836 (Feb. 12, 1982). The rate of decrease in ischemic heart disease has accelerated since 1973, and acute myocardial infarction has fallen since 1968. Reuel A. Stallones, "The Rise and Fall of Ischemic Heart Disease," Scientific American, 243(5):54 (Nov. 1980). As Dr. Williams R. Hazzard, Professor of Medicine at Johns Hopkins Hospital, stated, "there has been a progressive, substantial, unrelenting decrease in coronary heart disease mortality in the United States since at least the mid-1960s." "Aging and Atherosclerosis," Clinics in Geriatric Medicine, Vol. 1, No. 1, Feb. 1985 (p. 277).
Consistent with this precipitous decline in mortality from coronary heart disease are the findings of a 27-year study begun in 1957 of the incidence of myocardial infarction among approximately 100,000 male employees at the DuPont Company. The average annual rate of infarction in the 1957-1959 period was 3.19 per 1,000, which fell to 2.29 per 1,000 in 1981-1983 a decline of 28.2 percent. This is in accord with the conclusion that improvements in lifestyles and related risk factors (e.g., diet and diet-dependent serum cholesterol, cigarette use, and exercise-habits), plus better control of hypertension, "have contributed substantially to the decline in rates of coronary heart disease." This mortality decline among the older population "is historically unprecedented. . . . Changes in mortality from heart disease are largely responsible for the mortality decline among the population 65 and older."
These and other breakthroughs in the field of cardiology prompted a panel gathered by a former FAA Civil Air Surgeon to conclude in July 1980 that, "[w]ith the combination of highly automated aircraft and well-planned take-over of command procedures in commercial aircraft today, sudden pilot incapacitation is no longer a major contributing factor to airline safety."
The Report continued:
Although doctors are unable to quantify risk exactly for any individual, it appears legitimate to calculate the combined impact of all the adverse risk factors present, and, with appropriate weighting, produce a composite risk index. At one end of the spectrum will be the non-smoker who exercises regularly and who has a normal blood pressure, glucose tolerance and blood cholesterol together with a normal resting EKG. At the other end the heavy smoker who is sedentary, has a raised blood pressure and shows some biochemical abnormality. He may or may not have an abnormal resting EKG.
* * *
Sudden incapacitation of airline crew members has been a relatively minor problem during the past two decades.
* * *
The determination of relative risk of sudden incapacitation for pilots in a specific age group, e.g. 55-59 or 60-65, can probably be accomplished particularly if state-of-the-art techniques, such as Doppler evaluation of carotid blood flow, echo cardiography, exercise ECG, radionucleide scan, cardiovascular risk profile etc., were utilized as part of the Class I physical examination program.
Goddard and Associates, Report on FAA Project LGR9-0260, DOT Contract-FA-79WA-4335, The "Age 60" Rule (1980).
The Institute of Medicine of the National Academy of Sciences stated in 1981 that "major epidemiologic studies do not demonstrate a sudden increase in coronary risk at any specified age." The Institute reported that "risk-factor profiles and a more thorough testing of high risk individuals are adequate to identify those pilots whose health status would represent a threat to safety because of possible acute incapacitation" (Id. at p. F-160).
Airline pilots enjoy even better health and longevity than the general population. A recent study of retired American Airlines pilots sponsored by FAA concluded that airline pilots enjoy a "significantly longer life expectancy . . . as compared to their 60 year-old counterparts in the . . . general population. . . ." (PX 236). These and other recent findings have caused the Age 60 Exemption Panel, as well as other well-recognized authorities in the fields of aging and aerospace medicine, to recognize that the Age 60 Rule cannot be justified today.
Other studies also confirm that pilots age more slowly than the general population. For example, the 37-year follow-up of the Navy's "1000 Aviators" longitudinal study revealed that their death rate was less than half that of unselected American men of similar age. Deaths resulting from cardiovascular causes were 43% that of the general population. It was also reported that the "prevalence of cardiovascular disease among this group was markedly lower than in the civilian populace. The long term follow-up of the exercise electrocardiogram has also been shown to be useful in predicting coronary disease." N.R. MacIntyre, "37 Years Later . . . 1000 Aviators," Naval Aviation News, June 1978, pp. 9-15.
Petitioners' Exhibit 76 is a scientific article by Elihu York, M.D., Robert E. Mitchell, M.D., and Ashton Graybiel, M.D., entitled "Cardiovascular Epidemiology, Exercise and Health: 40-Year Followup of the U.S. Navy's '1000 Aviators'," Aviation, Space and Environmental Medicine, pp. 597-599 (June 1986). Dr. York reported on the latest findings of the Navy's longitudinal study of pilots, the most extensive study of its kind ever conducted. The group (mean age 65) had maintained its nonmilitary overall mortality rate of 9.3 per 1000 and cardiovascular mortality rate of 4.8 per 1000, which continued to be "approximately half of what might have been predicted for unselected males in the American population of similar age and ethnic characteristics" (PX 76 at p. 598). As a panel of experts recently confirmed, "[C]ommercial aviators are a select group and may have a better prognosis than that of the general public" (PX 230 at p. 1322).
Similarly, there have been significant advances in the diagnosis and treatment of neurological problems. As noted in the NIA Report, p. F-99: "There is no specific age at which there is a predictable impairment [in central nervous system function] and many 60-year olds have little or no detectable age related impairment."
In 1979, the American Medical Association, American Academy of Neurology, and the American Association of Neurological Surgeons published a report in response to a request by the Federal Aviation Administration "for an authoritative document concerning the current state of knowledge about selected neurological and neurosurgical conditions." "Neurological and Neurosurgical Conditions Associated with Aviation Safety," Archives of Neurology, 36(12):731-812 (Nov. 16, 1979). This report was, by far, the most comprehensive study ever conducted of neurological conditions as they may affect flying safety. Age was not shown to be a factor isolated for special concern and is not cited as a cause for limitation of flying privileges. In this area, physicians practicing in aerospace medicine have demonstrated how simulator and training sessions may be used to facilitate detection of neurologic problems which may adversely affect flight safety. G.J. Kidera, C.R. Harper and J.F. Cullen, "Cerebral Dysfunction as a Cause of Pilot Failure During Training or Operational Flight," Aerospace Medicine, 42(5):559-563 (May 1971).
Many authorities have shown that age, per se, has no effect on intelligence (see NIA Report at pp. F-124, F-140), and little if any effect on reaction time. The FAA has stated that it "does not consider the scientific measurement of reaction times to be useful . . . since the frequent evaluations which an airline pilot is subjected to during flight training periods and flight checks are the most practical means for assessing his or her physical reaction time." Letter dated March 19, 1979 from Marvin E. Russell, FAA Acting Chief, Air Carrier Operations Branch, Flight Standards Service, to Martin Fleer (PX 21).
Differences of 150 milliseconds have been observed between younger and older subjects for complex tests which, "in a pilot's operating environment, . . . is, for all practical purposes, insignificant." The Institute of Medicine Panel found that the "initial age difference in speed of response is largely eliminated by practice" (NIA Report at p. F-129). "Furthermore, there is reason to believe that well-practiced skills would show little if any age-related decline" (NIA Report at p. F-160). In summarizing a classic study by Jacek Szafran which dealt with reaction time in pilots, the Institute of Medicine Panel stated (at pp. F-124 - F-125): "For almost every measure, the pilot's age (from late 20s to early 60s) was irrelevant to performance. . . . [P]erformance of older pilots in most instances was comparable to that of younger pilots. . . . [D]ifferences across individuals within age cohorts exceeded differences between age cohorts. . . . There was also a lack of significant differences with decision-making capacities across age cohorts."
Aging is a highly individual process. "Not all people age at the same rate, or decline by the same amount. In some variables, individual 80-year old subjects may perform as well as the average 50-year old. . . . Because of the high degree of specificity of aging among different subjects and among different organ systems, chronological age itself is not a very reliable predictor of performance in individual adults." Shock, N., Normal Human Aging: The Baltimore Longitudinal Study of Aging ("BLSA"), National Institutes of Health Publication No. 84 2450 (Nov. 1984) at p. 207. In his review of the BLSA study findings, Panel Member Dr. T. Franklin Williams, then Director of the National Institute on Aging ("NIA"), National Institutes of Health, noted:
Older BLSA participants who are free of coronary disease have hearts that function as well as those of young ones. Another facet of the study found that personality remains remarkably stable in the later years and is not influenced greatly by life changes among healthy individuals.
"Aging: Puzzles and Progress," Aging (April-May 1984) at p. 17.
The NIA had earlier advised the FAA that proficiency among active airline pilots does not decline with age. A 1977 NIA communication stated that airline pilot examiners "cannot tell a difference in performance because of age" (PX 22 at p. 2). Instead, pilot proficiency examiners report the "two most frequent and easily detected causes of deteriorated performance are early alcoholism and fatigue due to preoccupation with second jobs" (id.). At the same time, NIA counseled the FAA that "60 years is 'young' for a person who has moderate smoking and drinking habits, has kept his weight down and has exercised" (id.). Though cardiovascular disease could result in the death of a pilot at the controls, the NIA noted the presence of a copilot and stated that such disease "could be detected by improving the standards of physical examination" (id. at p. 3). On the subject of the "mental changes of aging," the NIA observed that this "appears unlikely in this segment of the population at this age" (id. at p. 3). The NIA concluded:
In summary, it appears retirement at age 60 is arbitrary and wasteful of human resources. On the other hand, a clear alternative criterion of age, either chronological or functional, is not-readily apparent except on an individual basis. (emphasis supplied).
As Director of NIA, Dr. Williams reported to the Congress that, because of "continued advances in both medical technology and research in aging, we have considerably more knowledge and understanding of health and functional ability beyond the age of 60 now than we did even a few years ago" and that "cardiac output and mental functioning may be maintained at least as late as age 80 in the same ranges as in healthy young persons." Kidney function does not decline with age in many healthy persons and, in the absence of disease, overall "functioning may be well maintained at least to age 80. . . ."
Dr. Williams advised that we "can now conduct tests which will identify medical conditions which affect functioning and which would have gone unrecognized in the past." Such tests "with reasonable reliability identify risk for coronary events in older as well as younger persons." Based on recent studies, Dr. Williams concluded that "age is not a rational nor reliable criterion for determining whether or not a pilot's medical and functional condition are such that he/she should be permitted to continue in service" (id., emphasis supplied).
The American Medical Association Risk Factor Working Committee, in submitting its recommendations to the FAA for modification in the FAA airman medical examination, made the following important conclusions:
Age is not a risk factor per se. It is obvious that some older individuals are much healthier than others who are younger.
* * *
The qualification of the individual pilot should be based upon his or her own characteristics rather than upon those of his or her age cohort.
In response to a request by the Select Committee on Aging, Dr. Williams, together with cardiologist Samuel M. Fox III, M.D., and Jefferson M. Koonce, Ph.D., developed and proposed an examination protocol as a substitute for the FAA's Age 60 Rule. Dr. Williams noted in his transmittal letter of December 19, 1985, that in the intervening years since the NIA panel study in 1981, "further research has documented the maintenance of good health and functioning in many persons well beyond the age of 60, and has documented the predictive value of certain tests."
By letter dated September 16, 1986, Congressman Edward R. Roybal wrote to T. Franklin Williams, M.D., Director of the National Institute on Aging ("NIA"), inquiring whether the protocol for granting exemptions from the Age 60 Rule developed by Dr. Williams, Dr. Jefferson Koonce, and Dr. Samuel Fox, was essentially equivalent to that which had been developed and utilized for evaluating petitioners for exemption from the Age 60 Rule in the early 1980s (PX 80). Dr. Williams responded on September 23, 1986 (PX 81) as follows:
1. In my judgment, the Carter protocol is essentially equivalent to the one developed by Drs. Fox, Koonce, and me.
2. Granting exemptions to pilots who pass the Carter protocol, provided the test results are evaluated by a panel of experts who recommend exemption, in my opinion would provide a level of safety equal to or better than that provided by the Age 60 Rule.
9. Advances in Assessment of Pilot Performance
The Federal Aviation Administration has long recognized and approved the use of simulators in training, checking and certification of flight deck crewmembers. As the agency has stated, "significant developments in simulator technology have made it possible to realistically simulate a specific airplane and its ground and flight environment." 45 Fed. Reg. 44176, 44177, June 30, 1980. Amendments to 14 C.F.R. Parts 61 and 121 provide, in Phase III, for "all but static airplane training, the line check, and operational experience to be conducted in an advanced airplane simulator" (id.). These amendments followed naturally from the tremendous advances in simulator technology, resulting in the FAA's recognition that "simulators can provide more in-depth training than can be accomplished in the airplane with a very high percentage of transfer of learning from the simulator to the airplane" (id. at p. 44176). Simulators, according to the FAA, provide "training flexibility" and "maximum safety" in that they permit evaluation of the following (id.):
a. Normal operations procedures
b. Abnormal operations procedures
c. Emergency procedures
d. Any weather condition
e. Any lighting condition
f. Any airport location
g. Training situations which would be impossible or unsafe to conduct in the aircraft such as wind shear or blown tire on landing
The FAA has concluded that the use of simulators for maneuvers previously performed in the aircraft will result in "substantially improved safety." In addition to simulator advances, there is a strong movement supported by the FAA, the airlines, and the Air Line Pilots Association, International (ALPA) for the increasing use of crew-coordinated training. This training, called "LOFT" (Line Oriented Flight Training), "CCT" (Coordinated Crew Training), or "CRM" (Crew Resource Management), involves the training and checking of an entire crew simultaneously, which more closely simulates the real cockpit environment. Already operational on many airlines, LOFT has been found to further improve training and checking. Letter dated Feb. 15, 1980, from ALPA to FAA, Dkt., No. 19758.
United Airlines, the largest air carrier in the United States, has expressed full confidence in the ability of simulators to train and check pilot performance. As United has commented:
The simulators, costing up to $6 million apiece, are technological marvels. Augmented by visual systems, they can recreate virtually every type of flight condition experienced in actual aircraft. The interior of the simulator duplicates exactly the inside of a cockpit of a real aircraft, and the simulator can be programmed to produce the sensations of takeoffs, landings, climbs, turns, and turbulence.
We rely heavily on the simulator. . . . In the simulator, the pilot experiences many usual and unusual situations, but the most important phase of the simulator flight is his handling of minor irregularities and major emergencies "created" by an instructor. For example, the instructor can set up a failure of the electrical system or hydraulic system or many other emergencies to test the pilot's proficiency in stress situations.
A pilot in flight faces a wide range of possible irregularities and emergencies, and the United pilot must demonstrate mastery of all in the simulator with point-blank notice. It's a nerve-racking exercise, but it makes for extremely capable pilots.
Editorial Opinion of Richard J. Ferris, Mainliner, November 1977, p. 10.
Airline managers of flight training agree that the system of checking for flight deck personnel is reasonably objective, and provides a good indication of reaction time and psychomotor skills.
Tremendous advances in simulation have prompted the FAA to eliminate in-flight training altogether if the crewmember has been trained in a simulator approved under Appendix H of the Federal Aviation Regulations. As United Airlines stated in connection with its request to eliminate training in actual aircraft for flight engineer trainees (including pre-flight inspection training), the use of advanced simulators has promoted safety "because emergencies too dangerous to simulate in an aircraft may easily be taught in a simulator with no risk, thereby training crewmembers to a higher level of proficiency." Letter dated July 15, 1981 from Clark E. Luther, Senior Vice President-Flight Operations to Docket Section, Federal Aviation Administration (Dkt. No. 21991), in connection with a Petition for Exemption from §§ 63.39(b)(1), and (b)(2) and 121.425(a)(2)(i) and (a)(2)(ii) of the Federal Aviation Regulations.
These advances in cockpit crewmember training and proficiency assessment may be and are readily applicable to persons over 60 years of age. Since accurate and objective means exist to evaluate performance at all ages, there is no need for a protocol devoted exclusively to a determination of the effects of aging on performance. Nor is there a need to modify existing facilities to provide quantitative data, though such could easily be accomplished if necessary. Quantitative data have never been found to be necessary for the evaluation of crewmember performance at any age, since the present method of pilot assessment "is generally accepted and operationally rather effective." Gerathewohl, S.J., "Psychophysiological Effects of Aging Developing a Functional Age Index for Pilots: III. Measurement of Pilot Performance," Office of Aviation Medicine, Federal Aviation Administration, August 1978, p. 45. If desirable as an adjunct to check airman evaluation, the flight data recorders may be modified to provide information on several flight parameters. As Dr. Gerathewohl states:
It was shown in the course of this discussion that with all the computers and ADP available today, pilot performance can be measured objectively, accurately, and reliably. Such measurements discriminate effectively between different levels of operational requirements, demands, skill, and proficiency. If properly evaluated, such data should be useful not only for measuring pilot performance at a particular point in time, but also for predicting later or expected proficiency through the analysis of current performance and its comparison with past performance.
Id. at p. 46.
Whereas the advances in simulator technology have focused attention on objective measures of pilot performance, not to be overlooked are the subjective evaluations which formed the basis for Dr. Gerathewohl's observation regarding the effectiveness of the present method of pilot performance assessment. The complementary nature of the subjective and objective elements of the system have been emphasized by United Airlines' Vice President of Flight Standards and Training:
Q. In your opinion, does United's system of checking provide an objective measure of pilot proficiency?
A. Yes, I do.
Q. Is that true regardless of the age of the pilot checked?
A. Since we only have one system of checking, the same standards would apply to all. We have an objective check. Inasmuch as the system is administered by individuals, it undoubtedly would be done subjectively in areas of judgment. But I think our basic system is objective.
Deposition of J.E. Carroll, contained in trial transcript in Monroe v. United Air Lines, Inc., No. 79 C 360 (N.D. Ill.), Tr. 1493-95 (Aug. 24, 1982).
In light of the advanced simulator technology in use today, and the trend toward increased reliance on the simulator for training and evaluation/monitoring, any claim by the FAA that it is "not aware of any tests that can be given to an individual to determine whether they can continue to fly after age 60, if taken seriously, would cast serious doubts upon the validity of the FAA's current flight certification procedures." Professor Schaie, eminent gerontologist and member of the 1981 NIA Panel which reviewed the Age 60 Rule, has stated that "if the present procedures are . . . satisfactory to protect air safety, then they ought to be equally appropriate for determining which pilots might be qualified to continue their responsibilities." See Elliott, Robert W., "Aging Effects and the Professional Pilot" (PX 231). In a major study conducted by investigators at Pennsylvania State University in 1992, the authors determined that age should be discarded as a criteria for positions involving public safety because "alternative methods are better in protecting the public." The authors concluded that there is "substantial variability in the physiological status of older adults," and that job requirements can be "documented and physical abilities tests are available to assess the probability of successfully meeting such physical challenges" (PX 246).
10. Recent Comprehensive Accident Studies Prove that Aircraft Accident Rates Do Not Increase in Pilots Over 60 Years of Age
During the 1980s, and in defense of its denial of petitions for exemption in Baker v. FAA, 917 F.2d 318 (7th Cir. 1990), the FAA relied principally on a 1983 study entitled, "The Influence of Total Flight Time, Recent Flight Time and Age of Pilot Accident Rates" ("Flight Time Study"), by Richard Golaszewski, which purported to conclude that accidents increased with increasing pilot age. In April 1990, the FAA filed a brief in the United States Court of Appeals for the Seventh Circuit in which it claimed that the Flight Time Study proved that, "as pilots enter their 60s, the accident rate increases dramatically . . . even though experience also climbs" (PX 256 at p. 7). The FAA asserted that the Study "represents the best available statistical analysis found regarding the relationship of experience and age to aviation accident rates . . . [and] most closely parallels the relative accident rates that would be expected of airline pilots if the age 60 rule were [rescinded]." In 1990, the Court of Appeals concluded that this study, upon which FAA had relied "heavily," had "serious flaws." 917 F.2d at 320. Unknown to the Court because FAA never revealed it, FAA's Executive Officer, Kenneth Chin, Office of the Assistant Administrator for Aviation Safety, was FAA's principal officer responsible for this study. Mr. Chin, who had first received the study on behalf of FAA in June 1983 (PX 260), announced that the study had always been "unofficial because it was never formally published by the Federal Aviation Administration." Mr. Chin stated that the FAA had never accepted the report as a final product in 1983 or at any later time "because there are major data deficiencies" and "other problems." Mr. Chin warned that any "use of the study to support any position may be questionable at best" (PX 23).
The FAA's professed reliance on the flawed Flight Time Study to deny exemptions and to mislead the Court knowing that the agency itself had never published or approved the work because of its known major data deficiencies is the latest in a stream of willful, disingenuous, and deceitful actions intended to crush opposition to an archaic, inflexible government rule. This regrettable abuse of power by a federal agency was and is contrary to the Seventh Circuit's urging that FAA "must continue and must enhance its efforts to accommodate [the] great body of opinion that the time has come to move on. The agency must give serious attention to this opinion." 917 F.2d at 323.
In part to silence criticisms of the study by the Court of Appeals and others, the FAA contracted with Lehigh University and Hilton Systems, Inc. ("Hilton Study") to conduct studies relevant to the Age 60 Rule. One of those was a thorough analysis to determine whether aviation accident rates actually do increase with increasing pilot age, as the FAA had claimed to the Court based on the Flight Time Study. Following a two-year landmark effort, the Hilton Study team concluded that, among Class III pilots with at least 500 total flight hours and at least 50 recent flight hours, "age had no effect on accident rate [for the age range 50-70]" (PX 247 at p. 6-2 (emphasis supplied)). Similarly, there was "no support for the hypothesis that the pilots of scheduled air carriers had increased accident rates as they neared the age of 60. Most of the analyses indicated a slight downward trend with age. . . ." (emphasis supplied). The data for all the various groups of pilots "were remarkably consistent in showing a modest decrease in accident rate with age. . . ." The FAA reviewed the Hilton Study data and conceded that "the findings were very consistent. No increased accident rates were found around the age of 60. Most analyses indicated that accident rates decreased initially with age and leveled off for older pilots" (PX 248 at p. 2). The findings of the Hilton Study put to rest any doubt that pilots over age 60 ever had (or will have) higher accident rates than pilots under that age. If anything, accidents go down in pilots over age 60. See PX 249.
The aging of the pilot population since the promulgation of the Age 60 Rule has been accompanied by a progressive improvement in the safety record of U.S. certificated air carriers. In a recent study headed by George W. Rebok at Johns Hopkins University, entitled "Pilot Age and Performance Factors in Aviation Crashes," the authors evaluated aviation accidents during the years 1983-1997 involving pilots in age groups 40-47, 48-55, and 56-63. The authors concluded that pilot performance was less likely to be a factor in the older pilots' crashes, and that there were "no significant age differences in the pilot performance factors contributing to aviation crashes." Neither the "prevalence and patterns of pilot performance nor the crash circumstances were significantly associated with pilot's age" (PX 33). In another very recent study published in the Chicago Tribune in conjunction with Northwestern University Professor of Economics Ian Savage, the authors evaluated FAA data on "air carrier incidents involving air transport pilots from 1990 to June 11, 1999," and concluded that incidents declined for the age group 60 and over (PX 34). An earlier study, published in Aviation, Space, and Environmental Medicine in 1992, noted that in general aviation, there has been a decreasing number of younger pilots and an increasing number of pilots over age 60, leading to a steady increase in the average pilot age during the past 20 years. This coincides with a "dramatic reduction in the number of General Aviation accidents" over the same time period. The author concluded:
When the actual number of accidents is compared to the accident experience predicted by age-adjusted accident rates, there has been a steady reduction in the number of accidents for each age group over the past 20 years.
(PX 238 at pp. 78-79)
Increasing crewmember age is not associated with increased accident frequency; indeed, the opposite is true, since "flying experience is the biggest single factor reducing accident risk." Because the youngest pilots have the highest accident rates, the replacement of healthy, experienced pilots at age 60 with younger, less experienced pilots, can only adversely effect the safety of flight operations.
Nor is crewmember age associated with in-flight incapacitations. Published scientific studies confirm that 99 percent of all in-flight incapacitations have non-cardiovascular causes (PX 251). A reflection of the remote possibility of incapacitation is contained in PX 29. Incapacitations have occurred in all age groups, with gastroenteritis and other viral illnesses being the leading causes (PX 26, 27, 28). Myocardial infarctions have occurred among cockpit crewmembers ranging from 39 to 57 years of age (PX 26, 27). Pilot incapacitation has never resulted in an accident in scheduled domestic air carrier operations (PX 250 at p. 40; PX 261, 262, 263).
11. The Age 60 Rule Is No Longer the World-Wide Age Limitation
The FAA has relied for many years on the fact that the Age 60 Rule had been the standard around the world. That, however, is no longer true. Effective July 1, 1999, Europe's Joint Aviation Authority (JAA) adopted age 65 as the standard retirement age for commercial pilots among its 29 member states (JAR-FCL 1.060; PX 239). Only one member state, France, filed an exception (PX 235, 86). The International Civil Aviation Organization ("ICAO") age 60 limitation (which applies only to the pilots in command) has been rejected by two-thirds of ICAO member States. Other countries which do not impose an age 60 limitation include, among others, Australia, Japan, New Zealand, Israel, Iceland, and Canada. ICAO has reported that "the experience of many States seems to indicate that a higher age limit does not entail more accidents or cause other problems," and that it "may seem reasonable for ICAO to consider increasing the upper age limit." ICAO concludes that there is a "clear trend . . . towards increasing the upper age limit for commercial pilots" (PX 87 at p. 5).
As explained in a major study by the Netherlands Aerospace Medical Centre entitled, "Consequences of Raising the Maximum Age Limit for Airline Pilots" (1996):
[P]ilots in the 60-65 age group are no more likely than those in most other age groups to cause aircraft accidents. . . . Now . . . it is possible to draw up a risk profile of the risk of incapacitation using a multi-disciplinary approach and modern diagnostic methods in order to determine the individual fitness of pilots.
In view of the above, it may be concluded that raising the maximum age limit for pilots to 65 would not create an extra risk for air safety. . . .
(PX 30 at p. 30)
Similarly, Portuguese Aviation authorities evaluated flight incapacitations and deaths among airline pilots between 1945 and 1983, while pilots over 60 who were no longer flying were subjected to the same medical, psychological and psychomotor tests. The authors discovered that substantial numbers of pilots over age 60 "would be perfectly capable of continuing their activity as airline pilots both from the physical and from the psychomotor points of view," and concluded that although "the 60 year age limit may be useful in several countries for social and administrative reasons, . . . pilots who would wish to continue flying could be given the respective medical certificate, at least under a waiver condition" (PX 242 at p. 756). Most recently, in March 2000 Japanese authorities who studied the nation's airline pilots over age 60 reported that "there was no accident" among pilots over 60 and that, "at this stage, it can be argued that the [over age 60] flight crew . . . are eligible for professional flying" (PX 243).
12. The Pilot Shortage Is Causing a Serious Reduction in Airline Entry Requirements and Concern About Pilot Experience
A report by the Smithsonian Institution noted, as a consequence of the Age 60 Rule and other retirement practices, highly qualified and experienced airline pilots are being replaced by young and inexperienced aviators. As recently as February 2000, it was reported that new hires at major airlines were being promoted to captain in as little as three years, compared with the 8-year to 10-year wait of the past (PX 269). This is in part due to the huge number of pilots forced to retire in recent years due to the Age 60 Rule. America's "major airlines will have to retire about 18,670 pilots by the year 2002" (PX 242). Another report, conducted in 1993, determined that 23,000 airline pilots would retire by 2003, and that the flight experience we have enjoyed until now is "fading fast" (PX 252) as the levels of experience among new hires is dropping. Thompson, "The Great American Pilot Shortage," Air & Space, October/November 1986, at pp. 62-63 (PX 83). According to the report, over 118,000 senior experienced airline pilots left the industry from 1980 to 1985. "To replace them, airlines have already begun to reduce entry standards for experience, education, and fitness." Id. at p. 62. Another article expressed similar concerns. Moorman, "Where Have All The Pilots Gone?," Air Line Pilot, August 1986 at pp. 24-27 (PX 84). This has necessitated a reduction in entry standards and qualifications. For example, the "amount of jet-flying time required by airlines . . . has gone from 2,300 hours of flight time in 1983 to 1,600 in 1984 and 800 in 1985." Id. at p. 27. The replacement of experienced airline pilots with minimally qualified new-hires adds to the "growing perception that airlines of all sizes may be hiring pilots with too little experience. . . . It is almost universally agreed in aviation that judgment saves lives, and that judgment derives not just from training but experience, so the pilot shortage is understood to be a threat to safety as well as an economic issue" (PX 83 at p. 63 (emphasis added)). This concern was so great that FAA strongly recommended that the airlines not assign "two relatively inexperienced pilots to the same flight" (PX 233, 234). See, also, PX 88, 89 confirming the critical nationwide shortage of qualified, experienced pilots in 1999.
The experience lost by forcing petitioners out of airline cockpits is incalculable. An example of that lost experience is David Cronin who, a week before his sixtieth birthday, safely landed a United 747 following an explosive, potentially catastrophic, decompression (PX 240). Another widely-reported example is of a very experienced United pilot age 58 who, using "air sense" gained over thousands of flight hours, wrestled a United DC-10 to a crash landing in Sioux City, Iowa in 1989 (PX 252). His performance was described by the National Transportation Safety Board as "exquisite."
The pilot shortage is particularly acute in Alaska, and other rural states, where carriers are having trouble recruiting pilots and retaining those with experience. In September 1999 the shortage was reported as "acute" (PX 244), due principally to "explosive growth of the major airlines worldwide" and a "shortage of military pilots who used to feed the system" (PX 245). One way of dealing with this issue is to grant exemptions to the Age 60 Rule, and thereby gain "years of practical experience that the older pilots bring to the cockpit" (PX 237).
13. Scientific Support for the Grant of Exemptions from the Age 60 Rule
Not only has the National Institute on Aging moved to support exemptions from the Age 60 Rule, but the increasing trend among knowledgeable cardiologists and specialists in aging and aerospace medicine is in the same direction. For example, Dr. K. Warner Schaie, Professor of Human Development and Psychology at Pennsylvania State University, and a well-known expert in gerontology, has stated that cognitive decrements "do not affect all or most persons" over age 60 and occur "with particularly low incidence in individuals who are in good physical health, have high incomes, have flexible life styles, and lead stimulating lives, all of which characteristics are quite descriptive of senior commercial airline pilots." Dr. Schaie states that in this group, "age-related changes occur at an extremely slow pace." He concludes by supporting measures designed to "implement a safe and thoughtful waiver program that will make it possible to extend the work life of competent senior pilots." 1985 Aging Committee Hearing at pp. 434-35.
There is strong scientific support for the grants of exemptions from the Age 60 Rule, based on a comprehensive medical/neuropsychological protocol like the one administered here. In a letter to Docket No. 25008 dated October 20, 1986, Richard W. Besdine, M.D., Director of the Travelers Center on Aging, University of Connecticut Health Center, stated that "age alone should not be a criteria for denying older pilots the right to work" (PX 82). Dr. Besdine noted that, based on his studies of biological aging, there is "enormous variability from person to person, and in the presence of good health, . . . physical and intellectual vigor can persist well into the 70's." Dr. Besdine concluded:
[I]ndividual evaluation of otherwise healthy older pilots should be the mechanism by which decisions for continued work or compulsory retirement are made. Abundant tests for professional competence already exist for pilots, and physiologic assessment protocols are numerous and widely available. Such flexible evaluation should be the standard for the industry.
Petitioners direct the attention of the FAA to the submissions by independent medical/psychological experts contained within the public docket in No. 25008. The comments filed by such distinguished scientists as Drs. David H. Spodick, Irving Rosow, Michael E. DeBakey, Peter T. Kuo, Hughes W. Day, Elihu York, James F. Fries, Neil R. McIntyre, James W. Smith, Robert N. Butler, W. Dudley Johnson, David A. Drachman, and K. Warner Schaie provide ample support for grant of the petition for exemptions. Copies of these and other comments are included as PX 82, 93-229; see also PX 265.
Dr. Michael DeBakey, noted heart surgeon, stated (PX 95): there is "no convincing medical evidence to support the basis of the age 60, or any other specific age, for mandatory pilot retirement. As long as an individual's capabilities are normal and he or she is in good health at age 60, there is no sound medical reason that a highly qualified pilot should retire simply because he or she has reached 60 years of age."
The coordinator of the U.S. Navy's 1000 Aviator Project, Neil R. MacIntyre, M.D., stated (PX 101): "[M]aintenance of this archaic and arbitrary rule is both unfair to individual pilots and robbing the commercial airlines of valuable experienced pilots."
The FAA has also received the views of K. Warner Schaie, Ph.D., one of the panel members on the 1981 Experienced Pilots Study, and a leading gerontologist and co-editor of the Handbook on the Psychology of Aging. Dr. Schaie noted the FAA's "long history of intransigent and irresponsible handling of the commercial airline pilot retirement issue," and concluded that it is "clearly possible at the present state-of-the-art to develop adequate screening programs" to evaluate pilots over age 60 (PX 104).
D. The FAA Has Deliberately Disregarded Advances that Warrant Exemptions from the Age 60 Rule and Has Blindly Adhered to the Rule
In upholding the denial of a petition for exemptions from the Age 60 Rule, the Court in Starr v. FAA, 589 F.2d 307, 312, 314 (7th Cir. 1978), forecast one set of conditions under which exemptions would be warranted in the future:
Deliberate disregard of new advances in medical testing standards that made it more readily feasible to measure the hazard person by person beyond the extent asserted here might require a different result, especially in light of congressionally expressed concern that the Federal Aviation Agency keep abreast of the progress in safety equipment and techniques.
* * *
The FAA has the discretionary power to establish a policy that there will be no exemptions granted until it is satisfied that medical standards can demonstrate an absence of risk factors in an individual sufficient to warrant a more liberal application of the Age 60 Rule. Until the FAA determines that such standards exist, it may adhere inflexibly to a rule whose validity has been upheld by the courts and whose policies were reevaluated and articulated to the Senate in 1972 and 1977, as long as it continues to consider new advances in medical technology.
Similarly, in another Age 60 Rule exemption case, Gray v. FAA, 594 F.2d 793, 795 (10th Cir. 1979), the Court stated:
We do not suggest that the FAA could not, at some future time, be capable of abusing its discretion by adhering to its policy of nonexemption from the Age 60 Rule. At some point, the state of the medical art may become so compellingly supportive of a capacity to determine functional age equivalents in individual cases that it would be an abuse of discretion not to grant an exemption.
Finally, in Baker v. FAA, 917 F.2d 318, 322-23 (7th Cir. 1990), the Court stated:
We are certainly not in a position to say that the numerous supporters of the petitioners' case are wrong. And it is obvious that the FAA must continue and must enhance its efforts to accommodate their points of view. . . . The FAA should not take this as a signal that the age sixty rule is sacrosanct and untouchable. Obviously, there is a great body of opinion that the time has come to move on. The agency must give serious attention to this Opinion.
The affirmative showing in this petition based on the Age 60 Rule Exemption Protocol, the statement of the expert Age 60 Exemption Panel, and the presentation of the myriad advances in the state of the medical art which the FAA routinely applies to certify pilots of all ages with serious disease, the grant of exemptions to former Part 135 pilots over age 60, The Hilton Study, the shift in policy around the world, and all the other changes over the past 40 years demonstrates that the FAA has deliberately disregarded medical advances in this area, has abused its discretion in "blindly adhering to an outdated rule" and has failed to give serious attention to modern medical opinion. Starr, 589 F.2d at 314; Baker, 917 F.2d at 322-23.
Petitioners' affirmative showing is more than sufficient to obtain the grant of the petition for exemptions, certainly under age discrimination standards and traditional administrative law standards as presented below, but also under the deferential standard enunciated in Starr, Baker, and other cases. Because the courts have gone out of their way to give the FAA special deference based on the agency's repeated statements of its "commitment" to change course when the facts merit it, the grant of exemptions is even more compelling once the transparency of the FAA's commitment is exposed.
Given the manner in which administrative agencies operate, shielded from public scrutiny in their internal deliberations, it is extremely difficult to probe an agency's "mind" to show that its pronouncements are suspect or pretextual. The task is doubly difficult in a proceeding involving exemptions from a rule that has been in place for two and one-half decades. Compounding the problem is the fact that the FAA in the 1970s declared that the entire original Age 60 Rule docket was "lost," thus further insulating the agency process from the public eye (PX 35 at p. 2).
In the ordinary course such an excavation into the agency's mind set is neither necessary nor appropriate to obtain individualized relief from an onerous rule. But since the FAA has placed its motives in issue, and since the courts have partly relied upon the FAA's assertedly sincere "commitment" to apply advances to grant relief from the rule, this extraordinary exercise becomes appropriate. Although the documentary information available to petitioners undoubtedly represents only the tip of the iceberg when the full 40-year history of the rule is considered, we submit that the available information is sufficient to overcome the usual presumption of regularity of the agency process and to demonstrate that the FAA has abused its discretion in refusing to give serious consideration to exemptions or other individualized relief from the Age 60 Rule. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 420 (1971); Natural Resources Defense Council v. SEC, 606 F.2d 1031, 1049-50 n.23 (D.C. Cir. 1979); Preston v. Heckler, 734 F.2d 1359, 1372 (9th Cir. 1984); Abbott Laboratories v. Harris, 481 F. Supp. 74, 78 (N.D. Ill. 1979).
The recent history of the Age 60 Rule, and some recent revelations of the rule's prior history, show that the agency has been less than regular and less than responsible in its 40-year old "commitment" to replace or modify the rule with the ability to assess individual pilot capabilities irrespective of a particular chronological age. This history reveals that, despite the extensive advances and experience in aviation safety which have made the rule outmoded, the FAA has followed a course of deliberately disregarding the changed circumstances which would warrant a change in the rule and of deliberately sidestepping and ignoring breakthroughs which would allow relief from the rule.
In the annals of modern administrative agency rulemaking, the origins of the Age 60 Rule itself might seem strange. Although well-known in airline hangars for many years, documentary evidence concerning the impetus behind the rule has only surfaced more recently. In February 1959, C.R. Smith, President of American Airlines, wrote to FAA Administrator Elwood Quesada stating that the pilots' union was unwilling to agree to the company's mandatory retirement of airline pilots at age 60. Although Smith stated that he had no specific proposal at the time, he also stated that "it may be necessary for the regulatory agency to fix some suitable age for retirement" (PX 36). Shortly thereafter the FAA convened meetings of an advisory panel on aging consisting of public and private medical officials which endorsed the FAA's general approach on a proposed age 60 rule (PX 37 at p. 2). In April 1959, the FAA met with the airline medical directors to discuss pilot aging. The airlines also endorsed the FAA's general plan (id.). In the meantime, Administrator Quesada continued to receive supportive information from American Airlines, including "Dear Pete" communications from C.R. Smith to Quesada's home address (PX 38).
Shortly before the publication of the Age 60 Rule notice of proposed rulemaking, 24 Fed. Reg. 5247, 5248, 5249 (June 27, 1959), the FAA's advisory panel on aging again met to endorse Mr. Quesada's proposal for an age 60 rule (PX 39). Following the issuance of the notice of proposed rulemaking, the FAA continued to receive extra-record submissions. Some of them were not supportive of the rule and presumably were not made public. For example, although the FAA found that various foreign air carriers had mandatory retirement rules, the governments of the European countries in which those carriers were located did not have regulations in existence regarding a mandatory retirement age for pilots (PX 40 at p. 4). The United States Public Health Service responded to a private request from the FAA Civil Air Surgeon, James L. Goddard, M.D. While the Public Health Service recognized that "Dr. Goddard's needs presumably are rates for white males by age for sudden attacks such as coronary attacks, strokes, and other sudden episodes which might affect the ability of commercial pilots to perform their tasks at crucial moments," the service would not say whether causes of death from heart disease and stroke together "constitute a good measure of the risk of 'sudden attack'" (PX 41). Further, the FAA's Office of Aviation Medicine prepared charts on the subject of pilot aging which were reviewed at length with the FAA's general counsel's office. The material was not used or made public, apparently due to the view that "the subject material itself was inappropriate and indefensible" (PX 42).
In its December 5, 1959 release accompanying the promulgation of the Age 60 Rule, the FAA announced: "We hope that, as medical knowledge advances, ability to select on an individual basis will improve to the point where arbitrary rules will not be necessary. . . . Studies of the effects of aging as applied to pilots have been given high priority." In 1962, the FAA announced a research program at the Georgetown Clinical Research Institute to develop criteria "to tailor a retirement standard for each pilot instead of requiring all to quit flying at the age of 60. . . ." Then FAA Administrator Halaby stated that the "FAA should be well on its way to achieving its objectives by the end of 1963." Halaby, "FAA Develops Unique Studies to Determine 'True Age,'" Air Line Pilot (February 1962), pp. 4-7. Halaby later conceded that his 1962 statements "had the effect of temporarily reducing the 'scrap-the-rule pressure,'" with the opponents of the rule "being convinced I was trying anyway." Halaby, Crosswinds: An Airman's Memoir (1978), p. 113.
The FAA's pattern of deliberate disregard of developments which would lead to the abandonment or modification of the Age 60 Rule continued through the 1960s. The FAA's own aging research program was abandoned in 1966 because of mismanagement. Irrespective of its original "commitment," the FAA informed the National Institutes of Health in 1967 that "FAA does not do medical research in the field of aging." The 1967 statement remains true to the present.
After abandoning all aging research of its own, the FAA then shifted its focus to an outside study on pilots and aging being conducted at the Lovelace Foundation in New Mexico. In 1967, then Federal Air Surgeon Siegel acknowledged that the impetus for establishing both the FAA agency research program and the Lovelace study was "the 60-year rule with the resulting pressure to develop means of selecting pilots who might be able to fly beyond the age of 60." He then cited his "observation" that "the situation has changed," and that "most pilots . . . now accept it [the rule]." Based on that "observation," Dr. Siegel urged the Lovelace Foundation to "change our primary interest from what it was 6 or 8 years ago" and study younger pilots instead of older pilots. Two years later, the FAA did a partial about-face when it suited its purpose of staving off opposition to the rule. The FAA received an advisory committee report in which the majority of committee members questioned whether there was an actual need for additional medical studies to support the Age 60 Rule, for diverse reasons (PX 44 at p. 2). In reviewing the recommendations, Gordon Norwood, M.D., Chief of the FAA's Aeromedical Standards Division, agreed generally with the committee's conclusions but stated: "While the committee members question actual need for additional medical studies, we do face the fact that F. Lee Bailey has been retained to challenge the age-60 rule and it can be anticipated that some updating . . . will be helpful" (PX 45).
The disingenuousness of the FAA's posture regarding the Age 60 Rule was shown in 1967 when the FAA received an inquiry regarding exemptions from the rule. The inquirer was referred to the FAA Operational Division after discussing the matter with Dr. Siegel, who advised the caller that the Age 60 Rule was more of an operational problem. The telephone memorandum to the file stated that the caller was assured that "we were always available for conversation." Under the "conclusion, action taken, or required" section of the memo, however, the following handwritten notation appears: "We'd be glad to discuss it with them we will open by stating that we are considering lowering the age to 55!!" (PX 46).
In 1969, the FAA issued a contract to R.L. Bohannon, M.D., former Surgeon General of the Air Force, to present a report on the Age 60 Rule. Dr. Bohannon's recommendation to the FAA was to "by-pass for the present the delineation of physiological age and concentrate on defining the pilot population on the basis of risk factors." This is the basic approach followed in more sophisticated and modern form by the Age 60 Exemption Panel. Stricken by the potential impact of Dr. Bohannon's recommendation, the FAA did not release the report, and did not even publicly acknowledge its existence until 1979.
The FAA also supported the Navy's "1000 Aviator Study," with subjects currently over 60 years of age. A 1970 research grant for the study stated the FAA's anticipation that the 1000 Aviator Study would provide data "enabling individualization of the application of the present age 60 rule." Despite this genesis and despite encouraging results from the study which show that pilots of the same age and characteristics of airline pilots age much more slowly and have a much lower mortality rate than the general population, the FAA office of Aviation Medicine has attempted to disavow the results of the study as inapplicable to the Age 60 Rule (PX 47).
The lengths to which the FAA would go to protect its position on the Age 60 Rule, even to the detriment of related safety concerns debated within the FAA and the Department of Transportation, surfaced in the 1970s. The topic of debate was the extension of age limitations to pilots not covered by the Age 60 Rule. The principal focus was age limitations for pilots engaged in private, charter, or other carriage of passengers for hire, principally in Part 135 operations. The question was raised in February 1970 by Transportation Secretary John Volpe in a memo to J.H. Shaffer, FAA Administrator (PX 48). Upon receiving the request, Shaffer noted, "I am reviewing every authority, policy, rule, etc. that we have to make certain we're doing things right in today's environment" (PX 49 at p. 2). The Secretary then asked, "Shouldn't we accelerate a decision as to an age level at which pilots under [Part 135] could not fly 65-70 or some age" (PX 50). The FAA Administrator responded that it "would be a mistake to accelerate a decision at this time," citing as the primary "problems" (PX 51):
1. The present age limit for pilots of air carrier large aircraft is 60 years. A proposal for another age limit for pilots of small airplanes could compromise the present rule which is again under attack in the District Court.
2. Industry itself, in commenting on an earlier advance notice, favored (if found necessary) an age 60 rule applied to single-pilot operators, but not to two-pilot operations. This also could compromise the present age 60 rule.
Responding to a portion of the above memorandum which stated that the FAA was conducting a population study of 1600 pilots engaged in scheduled air taxi operations and intended to complete the study at the end of May, Secretary Volpe wrote back, "Does this mean we can do something by July 1" (PX 52). The FAA Administrator pointedly responded: "No, because it is most unlikely that the study, designed for other purposes, will reveal any unusual distribution of medical disease after age 65-70 that would alone justify the promulgation of a maximum age level. Also at this time, there is insufficient evidence of accidents involving air taxi pilots whose ages were over 65 to substantiate regulatory action" (PX 53). Later in 1971, the FAA's Director of Flight Standards Service reiterated that no action was taken on the proposal to extend the Age 60 Rule to Part 135 operations "due to the complete lack of statistical data which could be used to justify a regulatory change of this nature" (PX 54).
It is indeed ironic that, faced with a safety argument that an age limitation was needed for another class of pilots, the FAA relied upon a "lack of statistical data" as the reason for not applying an age limit. In dealing with the Age 60 Rule and petitions for exemption from the rule, the FAA has used precisely the same argument in maintaining the age limit. In these circumstances, a denial of exemptions from the Age 60 Rule based on a "lack of statistical data" truly would be an "exemption shell game." Air Mark Corporation v. FAA, 758 F.2d 685, 693 (D.C. Cir. 1985).
The subject of age limitations for the largest class of pilots occurred during the tenure of FAA Administrator Alexander Butterfield. In June 1974, Butterfield wrote a strong memorandum to the Director of Flight Standards Service and the Federal Air Surgeon recommending a maximum age limit in the vicinity of 75 for general aviation pilots. Butterfield thought that such a rule could be justified on the basis of the risk of heart attack after that age alone (PX 55). To this day, however, there is no age limitation for general aviation pilots, FAA's own pilots, or air travel club and air taxi pilots, obviously because the operations and medical experts have convinced the Administrator that there was and is no need from a safety standpoint. The agency's reconfirmation of a lack of need for an age 75 limitation for general aviation pilots stands in stark contrast to its immutable position on the Age 60 Rule.
In 1973 Butterfield apparently contemplated revising the Age 60 Rule itself. Indications are that the proposal was to raise the age limit to 62 (see PX 56). In a letter to a congressman in October 1973, Butterfield added the following note: "P.S. I want to personally apologize for the delay in responding to your query. I too was curious about this rule and its validity today (1973) and spent extra time in reviewing the subject and talking to a great many people in and out of FAA" (PX 57). Internal memos reveal some of the input Butterfield received from FAA staff. Flight Standards Service counseled him that the "agency has 'stood firm' in the past and upheld retirement at age 60" (PX 56). Dr. Norwood, in commenting on the Administrator's letter to the congressman, said "See note by Alex. FS [Flight Standards] says they aren't very concerned. Mr. B made limited inquiries & he did sign off on the letter" (PX 58).
FAA Administrator Bond was appointed in 1977. At that time, the rule remained in force on the basis of judicial review proceedings conducted in connection with the rule's promulgation and an effort to revoke the rule a decade later. At his confirmation hearing in April 1977, Administrator Bond committed himself to a "personal review" of the Age 60 Rule. At approximately the same time, four petitions were pending at the FAA seeking individual exemptions from the rule based on medical advances and individualized detailed medical presentations modeled after the testimony of the FAA's then resident pilot aging expert in Houghton v. McDonnell Douglas Corp., 413 F. Supp. 1230 (E.D. Mo. 1976), 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966 (1977).
The FAA's 1977 "review" of the Age 60 Rule formed the basis of the denial of the pending petitions for exemption from the Age 60 Rule in the late summer of 1977, and also formed the basis of Administrator Bond's September 1977 response to the Senate that the rule would remain unchanged. The "review" was in the form of a 5-page document prepared principally by Dr. Reighard's office and approved by Administrator Bond. The document contains a recitation of the history of the rule and a recommendation to reject alternatives to the rule. No study or actual reconsideration of the rule was conducted.
At the same time that the FAA was denying petitions for exemption from the Age 60 Rule based on a reiteration of the original reasons for the rule, the National Institute on Aging was delivering a different message. In an August 1977 communication from NIA to the FAA, the NIA representative made numerous observations supportive of the grant of relief from the Age 60 Rule, at least in individual circumstances (PX 19):
· "60 years is 'young' for a person who has moderate smoking and drinking habits, has kept his weight down and has exercised. Aging has not yet progressed, while the diseases of aging depend on these and other factors."
· Cardiovascular disease "could be detected by improving the standards of physical examination."
· The "mental changes of aging . . . appear[] unlikely in this segment of the population at this age."
· "[R]etirement at age 60 is arbitrary and wasteful of human resources. On the other hand, a clear alternative criterion of age, either chronological or functional, is not readily apparent except on an individual basis." (emphasis added).
· A hypothetical composite "physiological" or functional age measure is "not necessarily related to the ability to fly without mishap. The staff agreed that a functional index of aging for pilots should be closely related to their performance in their major function of flying. Therefore, it would be close to, or identical to, a proficiency check."
· "If one views aging as a normal process which is often or always accompanied to some degree by disease, there are two factors that may influence ability to fly deterioration due to normal aging and deterioration due to the diseases of aging. Because of the young retirement age (60), it is only the diseases of aging that currently affect performance. The method of detecting these diseases are well known. The other factor, the result of aging in a pilot is best revealed by proficiency testing." (emphasis added).
The NIA offered its assistance to the FAA on the questions of pilot aging. To petitioners' knowledge, the FAA did not respond affirmatively to the NIA when the invitation was directed at granting relief from the rule. True to form, however, the FAA did accept a later 1981 NIA Panel report which recommended retention of the Age 60 Rule. Still later, in 1985 and 1986, when the Director of the NIA endorsed the concept of individualized relief from the Age 60 Rule and proposed a protocol for granting exemptions from the rule, the FAA predictably opposed the NIA once again.
In 1979 the Age 60 Rule was the subject of considerable legislative activity. On March 21, 1979, the House Select Committee on Aging held a hearing on the rule. After the Aging Committee Hearing, various bills were introduced in Congress to revise the Age 60 Rule, and for other purposes. The principal bill, H.R. 3948, was the subject of further Congressional hearings on July 18 and 19, 1979.
In what was reported internally at the Department of Transportation as "an attempt to head off legislative action" (PX 59), the FAA in July 1979 let a sole source contract to Goddard & Associates to "recommend whether the basis of [the age 60] rule can presently be upheld." Goddard & Associates was headed by James L. Goddard, M.D., the FAA's Civil Air Surgeon at the time the Age 60 Rule was proposed and promulgated (PX 60). It was not known until much later that the FAA Federal Air Surgeon, Dr. Reighard, came under criticism for establishing the Goddard panel, which purportedly was to conduct "an impartial reassessment" of the basis for the rule. Dr. Reighard was called to a meeting with FAA Administrator Bond on August 2, 1979. In Reighard's own words, it was reported that Mr. Bond "made it clear that he was unhappy with the selection of Dr. Goddard to perform the study. It appeared that Mr. Bond's concern had to do with the fact that Dr. Goddard was the Civil Air Surgeon at the time the rule was adopted" (PX 61 at p. 5). Although the obvious taint of the project caused the FAA to consider canceling the Goddard contract, the FAA decided to allow it to proceed toward its preordained result (PX 61 at pp. 5-6).
In addition to apparently being less than forthright with his peers and superiors at the FAA concerning the Goddard panel (see PX 61, generally), Dr. Reighard was also less than candid in his public statements about the Goddard panel at the time the contract was let. Prior to the July 1979 hearings on H.R. 3948, Dr. Reighard met with Aviation Subcommittee staff members and others to discuss the pending legislation. At the meeting, Dr. Reighard was asked specifically if the FAA had ongoing any study concerning the Age 60 Rule, and he responded in the negative. At the hearing, Dr. Reighard further shielded from Congressional consideration the existence of the Goddard panel, when questioned whether the FAA had ever convened a panel of medical experts to study the Age 60 Rule. Hearings on H.R. 3948 at pp. 47-48.
Dr. Reighard and others at the FAA attempted to lend legitimacy to the Goddard report by having authorities outside the FAA give a critique of the report. Requests were made of the NIA (PX 62, 63), the American Medical Association, and the Institute of Medicine of the National Academy of Sciences (PX 61 at pp. 6-7). None of those requests was granted.
With the aid of the airlines, the FAA substantially achieved its goal on the legislative front when H.R. 3948 was passed in an amended form calling for a study by the National Institutes of Health with no modification of the rule in the interim. Pub.L. No. 96-171, 93 Stat. 1285 (Dec. 29, 1979).
The report of the National Institute on Aging Panel on the Experienced Pilots Study was released in August 1981. Prior to its transmittal to Congress, it was sent to the Department of Transportation for comment (PX 64). Dr. Reighard was assigned the responsibility of replying for the Department and for the FAA. Despite the fact that the general conclusion of the NIA Panel Report was in favor of retaining the Age 60 Rule under current conditions, Dr. Reighard's response was directed almost entirely to the last section of the report entitled, "An Approach to Changing the Age 60 Rule" (PX 65). Dr. Reighard's letter reveals total intransigence on the part of the FAA even to considering a possible change in the rule.
In purported response to the NIA panel's recommendation that the FAA or some other appropriate federal agency should "engage in a systematic program to collect the medical and performance data necessary to consider relaxing the current 'age 60 rule,'" the FAA issued an Advance Notice of Proposed Rulemaking (ANPRM) on July 8, 1982. 47 Fed. Reg. 29782, 29783.
The ANPRM stated that the FAA agreed with the intent of the approach to changing the Age 60 Rule recommended by the NIA panel a statement itself questionable in light of the agency's private comments (PX 65) but not with the specific method suggested. Instead, the FAA sought comments on a voluntary program whereby a pilot would begin taking additional comprehensive medical and performance testing on a quarterly basis. The voluntary program was to be opened only to pilots starting at age 57, with a view toward their continuing in employment to age 62. The experimental program was to expire 8 years after implementation, and no applicants for the voluntary program would be accepted after three years from the program