Pilots Renew Fight Against Age-60 Rule

JOHN CROFT/WASHINGTON

The FAA has until October to approve or deny petitions from 10 pilots asking that they be exempted from forced retirement at age 60, a relic of rules the agency delivered in December 1959.

While scores of aviators have fought to overturn or get exempted from the "age-60" rule in various federal courts for more than 40 years--always unsuccessfully--the fate of these nine men and one woman may be different. While the group fully expects the next FAA administrator to deny their request, they say the lawsuit they plan to file afterward will expose a twisted tale of an ill-conceived regulation and four decades of creative fact manipulation to keep it in place.

"This time we're going for the jugular," said Bert Yetman, president of the Professional Pilots Federation, an organization created in 1991 solely for the purposes of eliminating or amending the rule. Funded by the federation, the pilots are being represented by attorney Anthony P.X. Bothwell, who prepared the 76-page exemption request that included hundreds more pages in letters and documents obtained through the Freedom of Information Act (FOIA). Bothwell's tale is riveting and would seem credible, given this new information.

In short, the petition lays out how American Airlines pilots in 1959 were battling with management over contract conditions including an airline-imposed age-60 rule, wages and other issues. Unable to come to an agreement, pilots decided to strike for 21 days through the Christmas holidays. Mediators eventually ruled in favor of the pilots, after which American Chairman C.R. Smith reached out to his wartime friend and then-FAA Administrator Elwood Quesada.

"During the course of our recent negotiations with the pilot's association we found it unwilling to agree to the company's policy concerning retirement of air line pilots at age 60," Smith wrote to Quesada on Feb. 5, 1959. The letter concluded: "It may be necessary for the regulatory agency to fix some suitable age for retirement."

Ten months later, the FAA came out with a ruling setting 60 as the forced retirement age presumably based on medical arguments. One year later, Quesada retired from the FAA and was immediately elected to the American Airlines board of directors.

"What the FAA never has admitted publicly--and indeed has concealed from the courts, Congress and the citizenry for more than four decades--is that the age-60 rule was not initiated as a safety measure," Bothwell stated. "Nor was it crafted to avoid any medical risk."

Former FAA chief counsel Gregory Walden said if the rulemaking were indeed proved a "product of fraud," Yetman's pilots might have a chance at overturning it. However Walden was not sure that the rule's origin, no matter how sordid, would change the many court opinions--all favoring the FAA--that have trickled out since the 1960s.

Critics argue, however, that the medical data used to buoy the FAA's argument through the years are skewed. Robin Wilkening, Ph.D., analyzed the age-60 rule during her occupational medicine training at Johns Hopkins University School of Public Health last year. "It is clearly age discrimination to my view," Wilkening said, pointing to numerous studies including what she called a "landmark evaluation" by the National Institutes of Health that found the age-60 rule is "indefensible on medical grounds."

"Study after study has shown that pilots are healthier and live longer," Wilkening said. Given the rigorous medical evaluations, check rides and simulator sessions that pilots undergo as often as every six months, Wilkening said airlines would quickly get an indication if a pilot were to become unfit, at any age.

Key Dismukes, chief scientist for human factors at NASA's Ames Research Center, said pilot performance versus age is largely a tradeoff between degradation of measurable sensory and cognitive functions and the gains provided by experience. "It differs between different people," Dismukes said, "and it would be very difficult to measure."

The FAA would not comment on the exemption request, as deliberations are ongoing.