The following is an overview of what is intended with our FTCA suit:
THE INTENT: The FAA has never produced evidence that all part 121 pilots, and only part 121 pilots, pose an unacceptable higher level of risk then younger pilots. In fact they’ve gone out of their way to avoid gathering any such evidence and ignored respected studies that found age 60 to be of no medical or operational significance. The FAA received deference by the courts therefore the legal hurdle of Plaintiffs seeking waivers was enormous, in fact, impossible, in the case of proving that airline pilots over age 59 would not reduce the “current level of safety” as alleged by the FAA. Since attempts to be granted waivers under the Rule were categorically denied more recent challenges have sought redress outside the Rule. Constitutional Challenges by the Class Action Project, the Senior Pilots Coalition, and certain individuals have so far, likewise, not succeeded in getting a court to find the FAA liable for any transgression. Although this latest bevy of court challenges did not get results for pilots already past 60 they did succeed in moving the ALPA, and subsequently the Congress, to cool the flames with the FTEPA age 65 law.
Last Spring (2009) approximately 50 CAP Plaintiffs filed claims with the FAA charging that the Agency deprived pilots of our jobs on their 60th birthday in violation of Federal Tort Claims Act (FTCA). All of those pilots either received a denial response from the FAA, or no response at all, which entitles them to file in Federal Court for redress. Our filing states in part: “The Plaintiffs’ claims for relief are made pursuant to the Federal Tort Claims Act, which provides that civil actions may be brought ‘on claims against the United States, for money damages…for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’”
On April 5, 2010 we filed a Federal Tort Claims challenge against the FAA in Federal Court seeking recognition that the FAA did in fact violate the rights of pilots who were forced to retire prematurely by their airlines as a consequence of the FAA’s Age 60 Rule.
WHO: Only named plaintiffs who filed a tort claim with the FAA will be involved directly with this FTCA suit. However their success would very likely affect all airline pilots who were victimized by the 60 Rule and perhaps the Fair Treatment for Experienced Pilots Act of 2007 which also ignored the rights of pilots over 60.
INTENDED GOALS: Should these Plaintiffs succeed in being granted a trial it is possible that any award might apply to other pilots “similarly situated” or offer pilots not directly involved in this suit the opportunity to seek justice on their own. It’s not unreasonable to assume that recent lawsuits attacking the Age 60 Rule coaxed the ALPA, and subsequently the Congress, to address the Rule with the FTEPA to preclude a court solution. In light of the damning evidence that would be exposed in a trial, with its sworn testimony and cross examination, it is also possible that the government might seek a settlement, or seek Congressional intervention, rather than leave the outcome in the hands of the Court.
EXPENSES: Litigating costs money, especially when the target is the Federal Government. CAP plaintiffs were expected, per agreement, to contribute $1,500 each to support litigation. This new FTCA effort is a follow-on to the CAP and plaintiffs who’ve paid their full contribution are not expected to pay any more going forward. However the money left in the CAP account is not sufficient to fund the legal assault we’d like to commit to. Attorney Anthony Bothwell’s team will do what they-re able to accomplish on a limited budget out of a sense of duty to pursue these combined suits to a conclusion. All CAP plaintiffs are expected to fulfill their obligation to share in the expense of pursuing legal efforts to force the FAA to make amends for their Age 60 Rule. If you can afford to support the CAP it would allow our attorneys to provide more comprehensive research and litigation toward a just solution for those who suffered as a consequence of the Age 60 Rule.
AWARDS: Unknown. Pilots might expect compensation for the missing income and savings that might have accrued during an additional 5 years of airline flying with seniority. It’s not unreasonable to suggest that all affected pilots be awarded Social Security and/or PBGC income as if retired at age 65 along with all back pay for these pensions. Although not a benefit to retired pilots, the court might cause the elimination of any age limits unless the agency can demonstrate a “bona fide occupational qualification” for causing older pilots to retire as described under the Age Discrimination in Employment Act of 1967.
OUR LEGAL TEAM: 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 has 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, the Immigration and Naturalization Service, and others. The outcome of litigation can never be foreseen, but we have confidence in our legal team. (apxbothwell@msn.com) (hassanlawfirm.com)
