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The following is an overview of what may be expected should you choose to be a Named Plaintiff:
The intent: The suit will challenge the constitutionality of any unsupported age limit on airline pilots. Plaintiffs will show that they lost their airline pilot jobs solely for achieving their 60th birthday. Consequently the Plaintiffs lost wages, benefits, savings, and the satisfaction of remaining productive in a gratifying, challenging occupation of choice. The evidence will show that the flying public lost their most experienced pilots to the Age 60 Rule. There exists a great body of evidence that an age rule was never justified:
o Studies and empirical experience do not establish any older age where there is a statistically significant increase of part 121 accidents or incapacitation,
o The recent changes by the Israelis and Japanese that raises their retirement age limits from 60 to 65 following years of formal study,
o The ICAO survey of the maximum age standard for airline pilots which cites several studies from the US and over 15,000 pilot years of positive experience by member States to support change in international policy.
o The FAA Civil AeroMedical Institute (CAMI) findings that there is no correlation between aging and proficiency with air traffic controllers,
o The trove of evidence contained in the recent PPF Petition for Exemption, and
o The current national attention on the FAA NPRM to address the recent ICAO age standard, a productive, aging, population vis-à-vis Social Security, Medicare, and pensions. And recent statements by the Administrator to the effect that older pilots bring experience to the cockpit, and of the 200 pilots over the age of 60 allowed to fly (in part 121 operations) with no medical or safety events from 1996 through 1999.
Collectively these provide ample evidence to pursue a Class Action for recompense against the FAA.
Who: Plaintiffs will be former Part 121 airline or cargo pilots who can show they retired, or continued with their carrier as a flight engineer, as a consequence of the Age 60 Rule. Named Plaintiffs will represent all pilots who satisfy Class criteria. It is important that we clearly define the Class, and carefully select the named plaintiffs, to avoid any ambiguities or debate as to who deserves the compensatory damages sought. If it becomes possible to include other pilots in the Class, without jeopardizing the Class Action, we will do so, insofar as our attorneys determine and the courts approve. Named representative plaintiffs would be expected to receive a larger proportion of any settlement or judgment than other members of the class. Extra sums normally are awarded to the representative plaintiffs in a class action as recognition of the fact that they incurred risk and expense in bringing the action on behalf of the class.
Named Plaintiff Criteria:
o Plaintiffs must have retired within 60 days prior to their 60th birthday. Pilots who chose to return to the Second Officer seat, in lieu of retiring from their airline, are eligible as a Plaintiff.
o Plaintiffs must have possessed a valid first or second class medical on their 60th birthday or, if on a medical leave of absence when they approached their 60th birthday, demonstrate that they would have been able to return to the cockpit, following the medical leave of absence, had they been allowed to fly past their 60th birthday.
§ This does not require that you maintain your first or second class medical following retirement, only that you were medically qualified to remain in the cockpit at, or after, retirement
§ Plaintiffs who become ill and unable to satisfy first or second class medical criteria after their 60th birthday may still qualify if they can show they would have qualified for a medical leave of absence or disability per their company policy or employment contract; this provision will be reviewed on a case-by-case basis.
o Pending legislation permits airline pilots to continue to their 65th birthday in compliance with the new ICAO age standards as of November 23, 2006. Pilots whose 60th birthday will occur after November 23, 2006 can be considered as a Named Plaintiff unless their airline will allow them to return with seniority following the passage of a new federal age regulation
If a new Rule becomes effective only pilots who lost, or will lose, their airline job at age 60 will be allowed as a member of the Class. Plaintiffs who are allowed to fly beyond their 60th birthday, under a new age rule, will be refunded any monies already contributed.
How long: How long this takes depends on variables that cannot specifically be known, such as defense tactics and court rulings. Estimate 24 to 30 months from the filing date for preliminary prep, legal processes, jury phase, and appeals. We already have much of the evidence necessary to go forward from the recent PPF Petition for Exemption. Tony Bothwell, our lead attorney, is the same lawyer who produced that PPF court filing and is well up to speed on the issue and arguments. Also the FAA is already aware of the arguments contained therein and might be compelled to respond sooner than if the charges were new to them.
How much: The lead attorney, Tony Bothwell, will take this case as a principal occupation, during most of the time that this case is pending, at a substantially reduced hourly basis. In addition, his law firm may receive a contingency fee if there are monetary damages awarded, subject to the court?s approval. This case will involve an enormous amount of work to be undertaken by Tony, associate Rey Hassan, and their staff. Legal expenses and fees will be funded with an initial deposit of $30,000 upon signing the contract with the lawyers, and 8 quarterly payments of $25,000 to fund the maximum of $230,000 over two years. A copy of the Attorney Ageement may be seen by clicking the Application & Attorney Agreement button above. Should the Court cut us off early, only actual expenses and fees up to that time will be paid (refunds will not include a "true retainer" fee of $50,000, which will belong to the attorneys if they agree to pursue this lawsuit). Any fees paid by plaintiffs will be credited if there is a contingency payout (except the "true retainer"). Money advanced by me (Mickey Oksner) to cover expenses actually paid while exploring the possibility of pursuing a Class Action, and establishing the methods for obtaining Named Plaintiffs and funds will be reimbursed to me, minus my share of Named Plaintiff expenses, if there is sufficient funds.
Who will pay: Named Plaintiffs will pay equal shares over the 2 year period as described in ?How Much? above. An initial fee of $250 ($257.50 if PayPal is used to cover the 3% surcharge) will be collected from each Named Plaintiff at the time of application. Additional quarterly assessments of $250 ($257.50 via PayPal) will be collected from each Named Plaintiff to insure that we are able to meet our quarterly obligations per the contract. The number of payments that each Plaintiff will make will be dertermined by the final number of Named Plaintiffs included in the court filing. We currently have over 140 Plaintiffs which means that each Plaintiff will pay their initial $250 application fee followed by a maximum of 7 additional $250 assessments. Changes to the final agreement between attorneys and named plaintiffs, and attrition as some drop out over the two years, may alter the number of assessments. With at least 140 plaintiffs, who remain loyal throughout the suit, total expenditures per person will not exceed the projected 8 payments of $250.
The Awards: Unknown. A recent suit brought by a 63-year-old commercial pilot, who was terminated, partially, because of his age, received a jury award of almost $64,000,000 (see News section). Probably not the likely individual award for this class action, but obviously a sympathetic jury can be very generous. Even more recently, an Air New Zealand airline pilot (see News section) was ordered back to work at age 62 by the court. The Class action will request compensation for 5 years of lost employment, up to the 65th birthday. There is ample evidence from studies and the international experience that this is a generally accepted age cap for airline pilots, although there is no evidence of blanket pilot failure at age 65. Our case, if successful, could potentially eliminate any age limits in an award.
The Odds: Again unknown, however the EEOC has prevailed many times against employers who attempted to force their pilots to retire at 60 with much less evidence than available today. They are currently pursuing Exxon-Mobil in an age discrimination suit challenging the company policy of retiring their pilots at age 60. The EEOC has submitted a lengthy comment, in response to the FAA soliciting inputs regarding raising the retirement age for airline pilots to meet the new ICAO standard of 65, that reiterates their long standing position that the Age 60 Rule violates the rights of older pilots.
Australia's Human Rights and Equal Opportunity Commission said: “The detailed examination of the medical evidence led the Chief Justice to conclude that despite the considerable time and effort in America spent studying the age 60 rule 'none of the cited studies supports any conclusion about the relationship between that rule and aircraft safety'...." Compulsory retirement of Australian airline pilots at age 60 was ruled unlawful discrimination under their equivalent of the ADEA.
Here, the government can be expected to argue that it has sovereign immunity, that the acts of its officials were within their discretionary authority, that the age 60 rule always had and still has a rational basis, that the class is too large, that the issue has been decided by other courts, etc. Conversely there is a tremendous body of evidence that the FAA never intended this as a safety regulation and that they have failed to justify the Rule as a safety regulation in over 45 years of research. There is over “15,000 Pilot Years” of experience in foreign countries that have utilized airline pilots over age 59 for many years with no operational or medical problems as reported in the ICAO survey of member States. There is the recent admission of the FAA that their 32-year-old arguments to support an age 56 retirement for air traffic controllers were flawed and that an additional 5 years, to overcome a pending controller shortage, was safe. The FAA allowed certain commuter airline pilots to operate past age 59, from January 1996 until the end of 1999, under part 121 when they deemed that airline needs warranted it, with no apparent concerns. We would like to see the FAA try to justify these lapses in their purported safety standards before a jury.
Why is this effort different from prior court challenges: The FAA crafted the Age 60 Rule in such a way that any challenges face insurmountable obstacles. Although the courts might take issue with the Rule they are bound by the enabling legislation to defer to the FAA if the issue is safety. Many decisions contained caveats or dissenting opinions that admonish the FAA for their Age 60 Rule.
Petitions for exemption must follow the applicable procedures specified in FARs, requiring that the petitioner(s) file for an exemption explaining why they should be allowed to fly in a U.S. airline cockpit beyond their 60th birthday, which is then categorically denied by the FAA. The FAA always maintains that the petitioner’s arguments do not improve the level of safety provided by the existing Age 60 Rule. The petitioner(s) then have recourse to a Federal Court of Appeals, but the burden of proof is on the shoulders of the petitioners. From 1960 to the present, litigation challenging FAR 121.383 has failed to produce a single qualified airline pilot past the 60th birthday. This statistic alone should fly in the face of common sense.
The most recent PPF Petition for Exemption argued that the Rule has no basis in airline safety. The FAA responded, and the Courts agreed, that this petition was an effort to eliminate the Age 60 Rule rather than seeking exemptions within it. If Petitioners wish to change the Rule, the court finds, they must do it through some other route. The Court did not refute the logic and evidence in the Petition, only the intent of the Petitioners.
Our lawyer, Tony Bothwell writes: “Naturally people feel discouraged when reviewing the history of airline pilots' past litigation related to the age 60 rule. We think we have a shot at turning the tide because we're making the new argument that the FAA rule is unconstitutional. We are not asking for exemption from the rule, but rather we say that the rule should be struck down by the courts as null and void, because it violates the federal constitutional principle of equal protection of the laws. We will argue that the rule never had any health/safety basis. We also will argue that data emerging in recent years has made it clear that there can be no rational basis for the age 60 rule. We don't have to deal with the exemption hurdles; our [main] hurdle is the rational basis test, which applies in constitutional equal-protection cases involving age discrimination. We choose a field of battle where the constitutional question is the issue. ….“
The Class Action Project is the follow-on effort in response to the courts finding that we’d have to take another route if we wish to eliminate the Age Rule. The FAA will have to defend the Age 60 Rule in the face of testimony from expert witnesses, under oath, subject to cross examination, before a court not bound by the encumbrance of FAR 121.383. This will be our opportunity to discredit the egregious arguments the FAA relies upon to justify age discrimination before the Congress and the Courts. Please read “The Age 60 Rule-It Is Time To Defeat It” by Geneve Dubois, SMU, Dedman School Of Law, Journal of Air Law and Commerce, Spring 2005 in the “News” section.
Anthony Bothwell: Tony is the lawyer who assembled the recent PPF Petition for Exemption that exposes the dubious history of the Age 60 Rule from its inception. It is Tony’s work that we reference in much of our lobbying today. His experience in this arena can save an estimated 1,000 hours of attorney time to obtain a comparable readiness level and will expedite our progress forward. Tony is a former Washington Post newsroom employee and Associated Press editor who will have access to national media. Tony’s associate, Rey Hassan, a trial attorney of many years experience, is an expert in the areas of medical malpractice and legal ethics, which dovetails with our need to disprove the supposed medical validity of the Rule. Together they have successfully won favorable rulings in discrimination cases in California; Tony has prevailed in cases brought against the U.S. Department of Energy, and the Immigration and Naturalization Service. (attorney@age60cap.com)
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