Tuesday, March 3, 2015
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Ninth Circuit Tosses Older Pilot’s Claim Against Airlines
By KENNETH OFGANG, Staff Writer
An airline pilot who reached his 60th birthday six days before Congress enacted legislation allowing pilots to fly until age 65 is not protected by the law and has no claim against his employer, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“Although somewhat uncomfortable with the conclusion we reach, we hold that Plaintiff Henry Weiland, who turned 60 six days before the FAA’s Age 60 Rule was abrogated by the Fair Treatment for Experienced Pilots Act (“FTEPA”), does not qualify for one of the FTEPA’s exceptions to non-retroactivity,” Senior U.S. District Judge J. Frederick Motz, visiting from the District of Maryland, wrote for the panel in a 2-1 decision.
Weiland, of Orange County, may be a “class of one,” under the statute, Motz posited, which became law on Dec. 13, 2007. FTEPA is explicitly not retroactive, prohibiting any pilot who turned 60 before its enactment from being employed “in covered operations” unless one of two exceptions applies.
Weiland claimed that he met one of those exceptions, for a person “in the employment of” an airline “in such operations on such date of enactment as a required flight deck crew member.” He did not seek to qualify for the other exception, for “newly hired” pilots who forgo their accrued seniority.
U.S. District Judge James V. Selna of the Central District of California granted the airline’s motion to dismiss for failure to state a claim.
Motz said the district judge was correct. Because Weiland was grounded when he turned 60 on Dec. 7, he was no longer an active pilot, and therefore not “a required flight crew member,” even though he was still on American’s payroll until his retirement date of Jan. 1, 2008, as per company policy, Motz explained.
In a footnote, Motz said the exemption appeared to apply only to pilots who turned 60 on Dec. 13 or who were designated as “required flight deck crew members,” even though no longer active pilots, pursuant to a collective bargaining agreement.
Judge Ronald Gould concurred in the opinion, while Judge Stephen Reinhardt dissented.
A plain reading of the statute, he argued, supports Weiland’s position. Weiland, the judge said, was employed as a pilot by an airline engaged in covered operations as of the statute’s effective date and was thus entitled to fly until age 65.
The proper construction of the statute, Reinhardt elaborated, is that the exception applies if the pilot was employed by the airline, and if the airline was engaged in operations, as of the date the statute took effect, in other words that the “in such operations” language refers to the airline, not the pilot. Reinhardt also argued that the phrase “required flight deck crew member” refers to the position of pilot, not to a particular individual.
“In fact, under the majority’s logic no one in a major airline would probably qualify because it can hardly be said that any individual pilot is truly ‘required,’” he wrote. “Except in exceptional circumstances, there will likely be a replacement reasonably available.”
The case was argued on appeal by Washington, D.C. attorney John S. Lopatto III for the plaintiff and Robert Jon Hendricks of the Los Angeles office of Morgan, Lewis & Bockius for the defendant.
The case is Weiland v. American Airlines, Inc., 11-56088.
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