pilots in operations under Part 121 of th

Anthony P. X. Bothwell, Esquire
Attorney for Petitioners
100 First Street
Suite 100 PMB241
San Francisco, CA 94105-2632
Tel.: (415) 370-9571
FAX: (415) 668-6178
Email: esquire001@msn.com

PROFESSIONAL PILOTS FEDERATION
P.O. Box 1116
Grapevine, TX 76099
Telephone: (817) 481-5318
email: 70641.1413@compuserve.com
Website: www.ppf.org
Contact: President Bert Yetman

U.S. Department of Transportation
Docket Management System
400 Seventh Street, SW, Room PL 401
Washington, DC 20591-0001

This request for exemption is submitted on behalf of the following 10 petitioners.

Joe R. McCabe
3003 Gulf Shore Boulevard North
Apartment 501
Naples, FL 34103-3942
DOB 8/27/38

Communications on this matter should be directed to Anthony P.X. Bothwell, Attorney at Law, 100 First Street, Suite 100 PMB241, San Francisco, California 94105-2632, telephone (415) 370-9571, FAX (415) 668-6178.

The above-named petitioners request relief from irreparable harm caused by the age 60 rule set forth in 14 CFR 121.383(c), their exemption from the said rule to take effect no later than 120 days from the date of filing of this petition.

The petitioners request that their right and privilege to pilot aircraft in commercial air transport operations not be subject to termination on the basis of age, but that they and their employers be exempted from the prohibitions of the rule on the same criteria (i.e., regularly published medical and performance standards) that apply to pilots under age 60. The petitioners request this relief because they desire to continue to serve as commercial airline pilots, realizing that their service in such capacity will be in the public interest and compatible with aviation safety.

( I ) ( D ) - - THE ADMINISTRATOR HAS A STATUTORY DUTY TO CONSIDER SAFETY AND OTHER FACTORS AFFECTING THE PUBLIC INTEREST WHEN DECIDING WHETHER TO EXERCIZE AUTHORITY TO GRANT THE EXEMPTIONS REQUESTED HERE.

If, as the Federal Aviation Administration (the agency) asserts, the age 60 rule (14 CFR 121.383(c)) is a safety regulation deriving from authority residing in the Administrator under 49 USC 44701(a) or (b), 49 USC 44703, or 49 USC 44705(a), the Administrator has statutory authority to grant the exemptions requested here provided that the Administrator finds the exemptions to be in the public interest (49 USC 44701(f)).

In deciding whether to grant these exemptions, the Administrator has a statutory duty to consider the following matters identified in 49 USC 40101(c), (d), among others, as being in the public interest:

--The requirements of national defense and commercial aviation (49 USC 40101(c)(1));

--Regulating air commerce in a way that best promotes safety and fulfills national defense requirements (49 USC 40101(d)(1)); and

If, however, as demonstrated conclusively infra, the rule is not safety-related but rather economic and/or administrative in purpose and effect, the Administrator has a statutory duty to consider the following additional matters identified in 49 USC 40101(a), (b), among other factors, as being in the public interest:

--Assigning and maintaining safety and security as the highest priority in air commerce (49 USC 40101(a)(1));

--Preventing deterioration of established safety procedures (49 USC 40101(a)(3));

--Assuring the availability of adequate service without unreasonable discrimination or unfair or deceptive practices (49 USC 40101(a)(4), (b)(3));

--Coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditions (49 USC 40101(a)(5));

--Strengthening the competitive position of air carriers to at least ensure equality with foreign air carriers, including the attainment of the opportunity for U.S. air carriers to maintain and increase their profitability in foreign air transportation (49 USC 40101(a)(6), (a)(15), (e)(1));

--Developing and maintaining a sound regulatory system as to the present and future needs of the commerce of the United States and the national defense (49 USC 40101(a)(7), (b)(1)(C));

--Ensuring that consumers in all regions of the United States, including those in small communities and rural and remote areas, have access to affordable, regularly scheduled air service (49 USC 40101(a)(11), (a)(13));

--Encouraging and developing practices to provide efficiency, innovation and low prices (49 USC 40101(a)(12)).

The Administrator's consideration of the public interest matters as prescribed in 49 USC 44701(f) is not discretionary; "the Secretary of Transportation shall consider" (49 USC 40101(a), (b), (c), (d)). Nor is the statutory list of factors exclusive; "the following matters, among others" (49 USC 40101(a), (d)) (emphasis added). Among these other factors that actually affect the public interest, and which the Administrator therefore has a nondiscretionary, statutory duty to consider, are:

--Obligation to deal honestly and fairly with pilots, the public, the United States Department of Justice, the United States Congress, the federal courts, and international organizations and treaty partners of the United States;

--Need to collect and honestly assess evidence on significant issues of relevance, especially with respect to matters of public safety and public interest;

--Requirement to consider all relevant evidence before making decisions on application of regulatory policy;

--Obligation to act in good faith on recommendations of sister agencies of the Executive Branch (such as the United States Equal Employment Opportunity Commission [EEOC] and the National Institutes of Health [NIH]) and presidential directives;

--Elimination of unjustified age discrimination in employment (see Age Discrimination in Employment Act, 29 USC 621, "Statement of Findings and Purpose").

The FAA has recognized the statutory authority under 49 USC 44701(f) and 49 USC 40101(a), (b), (c), (d), by effectuating regulations providing for exemptions such as those requested here, and has spelled out the requirements for the granting of such exemptions (14 CFR 11.61(b)). These rules require, inter alia, that petitioners set forth:

--Reason why granting the exemption would be in the public interest, i.e., how it would benefit the public as a whole (14 CFR 11.81(d)).

--Reason that the grant of exemption would not adversely affect safety, or that it would provide a level of safety at least equal to that provided by the rule from which exemption is sought (14 CFR 11.81(e)).

( II ) - - THE REQUESTED EXEMPTIONS WILL NOT ADVERSELY AFFECT SAFETY BECAUSE THE AGE 60 RULE ITSELF IS NOT EVEN RELATED TO SAFETY.

In 14 CFR 11.81(e), the Administrator acknowledges the significance of safety in the public interest by requiring that petitioners show why a grant of exemption such as sought here "would not adversely affect safety," or how it would provide "a level of safety at least equal" to that provided by the age 60 rule.

The age 60 rule, however, does not now have, and it never has had, anything to do with safety. Indeed, the factual predicate of the rule now is exposed as false. This is not a safety rule and it never has been a safety rule. The sad truth is that the agency has misrepresented the factual basis, evidentiary support and true purpose of this age rule from the time it was proposed on February 5, 1959 to the time it was published ten months later, and even to the present time. The agency has concealed the fact that the original purpose of the rule was to serve as an act of pure favoritism, undoing the result of a labor-management controversy that was essentially economic in nature and that had been resolved through normal labor-management dispute resolution processes. Furthermore, throughout the entire life of the rule to this day, the evidence shows that the FAA intentionally, continuously and purposefully has acted to preclude the production, collection and analysis of evidence that would tend to disprove the agency's claim that the rule was established for safety purposes.

Evidence long known to FAA, and now publicly exposed by petitioners herein, discloses that the rule was devised as an intentional act of economic favoritism by the new Administrator of the newly created FAA, motivated by a long-standing personal friendship for an airline company chairman who had lost both arbitration and a strike over a management-imposed discriminatory age 60 retirement policy.

As shown in this petition, the age 60 rule started as, and it continues to exist as, an intended favor to airline executives. It was started so management would not have to train older, senior pilots to fly the first jetliners but could instead recruit young aviators many of whom had military jet training. Furthermore, it has been kept in force so management can avoid the inconvenience and supposed expense of changing retirement and pension programs.

( II ) ( A ) - - THE FAA HAS, FOR THE ENTIRE LIFE OF THE RULE - - FROM ITS FIRST GERM OF AN IDEA, TO ENACTMENT TEN MONTHS LATER, TO THE PRESENT DAY - - MISREPRESENTED THE RULE'S FACTUAL BASIS, ITS EVIDENTIARY SUPPORT AND ITS TRUE PURPOSE: ECONOMIC FAVORITISM (TO REVERSE THE OUTCOME OF A LABOR-MANAGEMENT CONTROVERSY THAT WAS ESSENTIALLY ECONOMIC AND THAT HAD BEEN RESOLVED THROUGH NORMAL DISPUTE RESOLUTION MECHANISMS, AND LATER TO SAVE AIRLINES THE ADMINISTRATIVE COST AND INCONVENIENCE OF CHANGE).

The origin and purpose of the age 60 rule truly had nothing to do with safety. The asserted factual predicate for the rule was a fiction. The Administrator's actual purpose in creating the rule was not safety but, as is demonstrated below, unadulterated favoritism, personal favoritism. At the time when the rule was established, and later, there was no evidentiary support for it as a safety rule. Before the rule was put in place, there was no particular reason for concern about pilot age as a factor in air transport safety. Air carrier flight hazards that existed in the 1950s resulted from a primitive system of airspace management and bureaucratic obstacles to the development of the technology to correct those deficiencies. The known hazards in the skies had nothing to do with the age of the pilots, as an historical review clearly will establish. Post-World War II growth of air commerce and an antiquated airspace management system, complicated by different and separate rules for military and civil aircraft, led to dramatic incidents and accidents. The introduction of jet transport aircraft (first the Boeing B-707), with high speeds, huge turning radii, different flight characteristics, and need for an enlarged airport footprint (longer runways, shallower climb-out angles and higher ground noise levels) further complicated the issue. Inasmuch as radar was not yet available outside the major metropolitan areas, air traffic controllers ascertained aircraft position (and distances separating airplanes in flight) by "dead reckoning," i.e., calculating present position from pilot-reported speed and direction from last-known fix, with a guess factor thrown in for wind effect.

Among the many aviation studies ordered by the government during the period (studies identified in the legislative history of the 1958 Federal Aviation Act [FAAct]), three had relevance to the pilot retirement age issue: the 1952 Doolittle Report, the 1955 Harding Commission Report, and the Flight Safety Foundation reports of 1958. The issue was additionally complicated by competing interests between older pilots and airline managements seeking to replace them with younger aviators at less cost (many if not most of whom were former military pilots already trained on jets).

The Doolittle Report, a study directed at identifying needed airport improvements to accommodate jets, offered more than a score of unrelated, unsolicited recommendations. Among these was a suggestion that a study of pilot aging be conducted and that it be assigned to the Aero Medical Association (now the Aerospace Medical Association). The association, taking on the assignment, formed a committee which issued at least one report, which told how it had reviewed some basic research then under way on body organs (eyes, lungs, heart). With respect to the problem of assessing older pilots' performance, the committee concluded that aircraft simulators held great promise to test overall performance of the individual pilot, for both effectiveness and safety reasons. Furthermore, a review of the annual indexes (1952-1959) and relevant contents of The Journal of Aviation Medicine, the official publication of the Aero Medical Association, shows neither concern about nor particular interest in the aging air carrier pilot prior to promulgation of the age 60 rule in December 1959. Indeed, where discussed at all, the conclusions were that experience was an invaluable asset; the airline pilot was superior in health and fitness to the general population; and - clearly reflecting the conclusion of the Aero Medical Association's Ageing Pilot Committee - that the excellent safety record of the civil airline industry was attributable to the rigid flight tests continually required of pilots by the scheduled airline operators.

The next year, the Harding Commission issued its report, focusing on inadequacies of airspace management and air traffic control, dramatizing the introduction of jet transport aircraft and the growing conflict between Cold War military and civil aviation needs. Though this report was unrelated to, and made no mention of, the pilot aging issue, FAA took some of the report's more dramatic language (regarding higher altitudes and speeds, more lives at risk, greater turning radii, and extreme closure rates between aircraft) out of context so as to prejudice the debate over the age 60 rule.

In 1956, the Civil Aeronautics Administration (CAA, the predecessor of the FAA) commissioned the Flight Safety Foundation (a nonprofit aviation research facility associated with the Guggenheim Foundation) to perform evaluations of aviation medical certification standards -- with specific emphasis on air traffic controllers. The CAA ordered that the study be performed in two parts. The first part, which was ordered expedited, was about air traffic controllers, regarded as the hot topic having safety import. The second part, on the subject of pilots, was to be delivered later. Report 1 emphasized the stressful nature of the air traffic controllers' job and recommended revisions of their medical standards, including consideration of a maximum age limit. But Report 2, discussing pilots only, made no mention of an age limit issue; it found the then-established criteria for class I and II pilot medical certificates satisfactory, and explicitly stated that no changes were required in pilot medical qualifications on account of the introduction of jet aircraft. The various changes recommended by these two reports got adopted in an FAA rulemaking that actually coincided, timewise, with the FAA rulemaking for the age 60 rule. Strangely, even though medical issues, and only medical issues, were asserted as determinative in both, neither rulemaking made any mention of the other.

The only medical rationale that really existed for the imposition of any mandatory age limit in civil aviation, in fact, pertained to air traffic controllers, not pilots. Hazards to air safety - associated with airspace congestion, antiquated equipment and procedures for airspace management, different and separate rules and regulations for civil and military flights, and the introduction of jet transport aircraft complicated the air traffic controller's job tremendously - but had nothing to do with age of pilots. In the U.S. air transport industry, only six pilots (ages 28, 36, 44, 47, 50 and 52) had fatal heart attacks in the eight-year period immediately preceding enactment of the Federal Aviation Act and imposition of the age 60 rule - and none resulted in aircraft accident or incident. Three of these occurred after landing. Three occurred in flight; in each case the other pilot assumed command and landed safely. In none of these cases was the aircraft, or anyone in it other than the cardiac victim himself, in any harm or peril.

The age 60 rule governing airline pilots was not put on the books because of air traffic congestion or safety considerations of any kind, however. As shown below, it really was because of labor strife, economics, and the circumstance of a powerful airline executive's connections with an autocratic new FAA Administrator.

What the FAA never has admitted publicly - and indeed has concealed from the courts, Congress and citizenry for more than four decades - is that the age 60 rule was not initiated as a safety measure. Nor was it crafted to avoid any medical risk. Rather it was a tool of false economy, an act of supposed economic favoritism to reverse what an airline executive saw as the disappointing result of recent labor strife. It began as a personal favor by the FAA's new Administrator, Elwood Quesada, for his friend and former wartime associate C.R. Smith, chairman of American Airlines. The purpose was - by regulation - to force Smith's older pilots into early retirement, a goal that American Airlines and some of the other carriers unsuccessfully had sought through contract negotiations and grievance arbitrations.

The Administrator's Secret Purpose: Personal Favoritism, to Accomplish a Reversal of the Outcome of a Labor-Management Dispute.

The truth about the origins of the age 60 rule is disclosed by two contemporaneous sources of credible evidence: (1) a 1961 paper by a Stanford Business School professor, Karl Ruppenthal, recounting the open history of the origin and preparation of the rule, and (2) an extensive and hitherto private collection of FAA documents amassed by Dr. Homer Reighard, who had been at the FAA during the rule's inception, and who retained the documents until his retirement as Federal Air Surgeon 1984. The Reighard files were obtained through litigation under the Freedom of Information Act. Any doubt that the age 60 rule originated in labor strife, or that its purpose was to resolve the labor dispute in management's favor, is dispelled by Reighard's trove and Ruppenthal's paper. The latter recounted that in the mid to late 1950s several airlines sought unilaterally to impose age-60 retirement policies. At three carriers (Western, TWA and American), however, the pilots resisted through their contract grievance machinery. All three of these grievances were decided in favor of the pilots' position through neutral arbitration. Western Airlines defended its position by arguing that the issue was not suitable for arbitration because it concerned the safety of the carrier's operations. The arbitrator rejected each of Western's purported "safety" arguments, ruling:

There is no testimonial basis and no 'fact of life' on which we could be expected to take a kind of 'judicial notice' that supports the view that it is unsafe to let a pilot perform after the age of 60. That is not to say that there is not some age - - say 90 - - when we would take judicial notice of physical impairment beyond all reason. It is enough to say that the evidence here does not support the theory that the attainment of age 60 is in itself enough to disqualify a pilot.

American Airlines adamantly refused to comply with the binding arbitration. Management noncompliance with the arbitration order became an issue in a costly strike that lasted from December 20, 1958 to January 10, 1959. Smith agreed to reinstate the pilots as part of the settlement of the strike - but delayed doing so while conspiring with Quesada to engineer the imposition of the company's age 60 rule as a federal regulation. Administrator Quesada retired shortly thereafter and promptly was elected to a seat on the Board of Directors of American Airlines.

The true origin of the age 60 rule is revealed in secret letters that Smith wrote to Quesada. In a February 5, 1959 letter on his personal stationery, Smith wrote to Quesada:

During the course of our recent negotiations with the pilot's [sic] association we found it unwilling to agree to the company's policy concerning retirement of air line pilots at age 60.

I have no specific recommendation to make to you at this time. It appears obvious that there must be some suitable agre [sic] for retirement. It appears equally obvious that as men become older the result of the usual physical examination becomes less conclusive.

It may be necessary for the regulatory agency to fix some suitable age for retirement.

Ten months to the day from Smith's first private request, the age 60 rule became a federal regulation with full force of law - purportedly justified, as Smith had suggested, by conclusory assertions of medical uncertainties.

Within eleven days of Smith's plaintive plea of February 5, a four-page medical justification for the rule had been drafted. Within about four months, the Notice of Proposed Rulemaking (NPRM) was published in the Federal Register - replete with purported medical justifications.

On March 9th, just over one month from the date of Smith's letter, Reighard himself (apparently not yet fully "in the loop") prepared a memo to the Acting Chief Civil Air Surgeon, noting that airline captains were required to accomplish a proficiency check twice yearly, and suggesting that this proof of "ability to perform under realistic flight conditions" should be a reasonable test of airline pilots. Reighard further suggested that the FAA consider offering its services to the airline companies to "interpret existing medical knowledge" to ensure the adequacy of age considerations during the required periodic testing regimes. The suggestions apparently fell on deaf ears, as there is no evidence that they were ever acted on.

A "Record of Visit" retained in the Reighard files dated February 8, 1960 recounts a visit in which a supporter of the recently adopted age 60 rule claimed that the older pilots passed their physicals by going to the same doctor who "does not give a very rigid physical." As an addendum, the writer stated that "Dr. Reighard checked a sample of ten of the forty pilots known to be active airline pilots over 60 and found that no two of the ten went to the same examiner." (There were not forty pilots known by the FAA at that time to be over 60 and active airline pilots. A little over two months earlier, the Air Surgeon, James Goddard, had explained that the number 40 was nothing more than an approximation based on the fact that there were seven pilots over 60 at Eastern Air Lines, and that Eastern Air Lines was thought to represent "a one-sixth sample of the total air carrier pilot population." )

Correspondence between Quesada and the Rev. Theodore Hesburg, president of Notre Dame University, indicates that the Administrator spared no effort in seeking endorsements for the proposed age rule. Father Hesburg admitted he had no relevant expertise, but gave his endorsement anyway. Quesada, in turn, admitted that he also had no data on which to base the proposal, and was aware that he was on treacherous ground when he asked for confidentiality because "premature revelation might make [the regulations] much more difficult to achieve."

Smith, of American Airlines, in a letter to Clarence Sayen, the president of the pilots' union, disingenuously sought agreement on the retirement issue or, alternatively, agreement to petition FAA for a regulation. What Smith withheld from the union was the fact that he already had approached Quesada directly and received the Administrator's promise of support, and knew full well that the FAA rulemaking process was well under way.

Responding to a request by Quesada, Smith prepared a three-page memo to Quesada April 30, 1959, on plain paper, with the notation, "Mail to home address." In it, Smith provided results of American's 707 jet retraining program, numbers of pilots already retired, and age groups of pilots then employed by the airline. The Administrator had charts prepared from Smith's transition training time data. These charts became Quesada's favorite presentation when arguing for the proposed rule. However, as documented herein, this argument was abandoned after it was reviewed by FAA attorneys, who recognized there was no objectively sound basis for the rule.

Primarily on the basis of a presentation of Smith's transition training time data at a June 3, 1959 meeting hosted by Quesada, an FAA Advisory Panel of eight hand-picked experts endorsed an age 55 limit for jet transition and, after some debate, an age 60 rule for retirement. Dr. James Birren, one of the original panel participants has declared that the unwitting panelists, unaware of the labor controversy surrounding the issue, agreed in favor of only temporary adoption of an age 60 retirement rule. The economic purpose of the age 60 rule was noted in a memo by B.W. Hogan, Rear Admiral, MC, USN, reporting on the panel's meeting. Hogan began his memo by repeating some of the data he obtained at the meeting: The older pilots' seniority allowed them to "bid in" to the jet positions; this meant a boost of $4,500-$5,000 a year (in 1959); and it "takes the older pilot longer, thus costing more money, to transition to the Jet aircraft."

The FAA obtained letters from the Department of Health, Education and Welfare providing data on "sudden attack" (arteriosclerotic, including coronary, heart disease and stroke) for "white males for the year 1957." But these July 1959 letters did not address the fact that, as a congressional report later noted, airline pilots did not fit the norm for "white males" but rather were a "highly select group…more free of serious pathology than a sample of general population of similar age."

Quesada - responding on August 5, 1959 to a request by ALPA's Sayen - admitted that FAA did not have in its possession "a comprehensive library of" reference materials on which the age 60 rulemaking process was based. Instead, Quesada provided a list of 41 documents that he said ALPA should review on its own, while he also said other (unspecified) documents would apply as well. In an unrelated deposition, Reighard revealed Quesada's list of 41 documents to an EEOC attorney who then collected the documents for review. The EEOC attorney found that many of the documents predated World War II, most concerned readily testable physiological functions, only eight had to do with accidents and age, only seven related to mental condition and age, and all of these looked at populations much younger or older than age 60. This list of outdated and largely irrelevant documents, provided at the request of an interested party, gains added significance in light of the fact that the FAA in 1973 lost the entire 1959 docket of age 60 rule materials.

FAA in-house lawyers in October 1959 advised that the available evidence (the retraining data provided by Smith and converted into charts by Quesada) would not support the age rule, and that "scientific or factual justification" of the rule was in fact "not possible." The FAA lawyers recommended a strategy that would obfuscate these attempts to justify the rule by operational data, by making "no presentation" or, if necessary, concocting a defense based on selective use of medical data.

The FAA believes that because of the progressive deterioration of both physiological and psychological functions which normally occur with age...[t]hese deteriorations result in significant medical defects.
The Federal Aviation Agency regulation is based on medical facts that clearly establish that sudden incapacitation due primarily to heart attack and strokes resulting from such defects become significantly more frequent in any group reaching age 60, and such attacks cannot be predicted on an individual basis by prior medical examinations. ....
Other conditions which result from aging...relate to loss of ability to perform highly skilled tasks rapidly, to resist fatigue, to maintain physical stamina to unlearn or discard old techniques, and to apply the rapid judgment needed in changing and emergency situations.
No correlation between these unsubstantiated and conclusory claims based on unidentified "medical facts" and air safety ever was established or even attempted.

When the FAA announced the age 60 rule, it conceded that it was not initiated on the basis of any accident experience of older pilots. FAA offered only supposed medical arguments as justification for the new rule. The question and answer paper attached to the news release admitted that the agency's judgments were not based on any authoritative source. It asserted gratuitously:

From the general knowledge of the processes of aging it is apparent that the functions which make up the skills required of airline pilots begin to deteriorate well before the age of 60.

These assertions of "general knowledge" and their supposed relationship to "the skills required of airline pilots" were supported by no factual data.

In its only public statements on the original preparation and promulgation of the age rule in 1959 (official notices in the Federal Register, news releases, "questions and answers" for the public, etc.), FAA admitted that its action was neither prompted by nor required by actual accident experience. Instead, the agency claimed the rule was needed because of, inter alia, "progressive deterioration of certain important psychological and physiological functions with age" (e.g., heart attack and stroke), the fact that a seniority system gave older pilots priority on the "newest, largest, fastest and most highly powered jet aircraft," and the following semi-coherent but dire assertion:

The possible hazards inherent in the older pilot's medical condition are entirely too serious to determine the question of safety by an attempt to balance the increased chances of an incapacitating attack against the possibility that the pilot might not be engaged in the carriage of a large number of passengers at the time of such attack.

Thus the record makes clear: The age 60 rule was an intrusion into a labor dispute which had minor economic consequences and which had been resolved through normal arbitration procedures. Neither the labor dispute nor its economic effects had anything to do with safety. The age 60 rule was a favor by the FAA's Administrator (Quesada) and delivered to an airline board chairman (C.R. Smith) on the basis of long-standing personal friendship and secret ex parte communications, without any medical or safety basis whatsoever. The FAA's repeated references to medical characteristics of the general population (rather than those of the super-select, pathology-free, closely monitored, highly regulated population of air carrier pilots) were intentionally misleading, purporting to justify a rule that the agency knew was not justifiable on the basis of medicine, safety or anything else.

The agency's greatest misdeed was not that it promulgated the age rule in spite of available evidence of the air transport environment's fail-safe design, nor that it did so in the name of unjustified predictions of disaster. Rather the most serious aspect of the FAA's affirmative misconduct was the fact that it prepared, promoted and promulgated the rule in the absence of any credible record. FAA had an affirmative duty - both in its statutory mandate under the FAAct to proceed in the interest of real safety (not fallacies of fear), and its duty under the Administrative Procedures Act of 1947 to consider fully and fairly the whole record before it (not some nebulous, secret, and later "lost" record of fiction). By suppressing the true facts set forth above, the FAA breached both of these duties.

FAA subverted congressional intent in 1959 when it placed the age 60 rule under a code section immune from independent administrative review, section 601 of the Federal Aviation Act of 1958.

Recognizing the potential for abuse, Congress meant to restrain the power of the FAA Administrator. In debate on the House floor, Representative Meader of Michigan complained, "This Bill vests dictatorial power in one man. In this Bill we are creating an aviation czar." The scope of the congressional intent was made plain in the act's legislative history:

How to assure the maximum possible safety and efficiency under proper regulations, impartially enforced, is one of the major problems in connection with this legislation.
….
It is the intent of this legislation that the Administrator shall discharge his rulemaking powers in a fair and impartial manner to promote the public interest and provide for the national defense….

FAA adopted the rule as an operational restriction under what now is Part 121 of the regulations. The decision was to enact the age 60 rule as an operational restriction - with exemption denials not subject to independent administrative review. The FAA decided not to adopt the rule as a licensing restriction - which would have seemed more logical, considering that the minimum age limit appears under Part 61, and that the only justifications ever propounded for the rule were medical in nature. The agency chose not to enact the rule as a licensing standard or limitation under the sections then equivalent to the current Part 61 (for the Air Transport Pilot's license) or Part 67 (for the Class I medical certificate). Inasmuch as the only justifications alleged by the FAA in support of its proposed age rule in 1959 were medical in nature, and a complete revision of the medical certification standards was working its way through a parallel rulemaking process during that same time, it would have been appropriate to include the age limitation as part of that rulemaking. That it did not do so strongly suggests the presence of a different agenda.

The FAA's authority to regulate in the interest of safety arose under Title VI of the 1958 FAAct. The two parts most relevant to the age 60 issue are sections 601 and 602. Under section 601 (General Powers and Duties; Minimum Standards; Rules and Regulations), the Administrator could establish, inter alia,

5. Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air carriers;

6. Such reasonable rules and regulations, or minimum standards, governing such practices, methods, and procedures, as the Authority may find necessary to provide adequately for safety in air commerce….

Under section 602(b) (Issuance of Certificate), on the other hand, "ability to perform" is the controlling criteria, and the FAA is required to issue ("shall issue") such certificate to "any person" who seeks one if it finds

that such person possesses the qualifications for, and…is physically able to perform the duties pertaining to, the position…sought…containing such terms and conditions, and limitations as to duration thereof, periodic or special examinations, tests of physical fitness, and other measures as the Administrator may determine to be necessary to assure safety in air commerce.

In considering the rationality of either of these two sections as a basis for a maximum age limit for air carrier pilots, it is helpful to note that the minimum age limit for the ATP license required of an airline captain (23 years) appears under a section 602 regulation (14 CFR 61.153, Airline Transport Pilots [license]; Eligibility Requirements: General). But the Administrator placed the age 60 rule under section 601, where exemption denials would avoid de novo, independent administrative review.

Petitions for exemption and appeals from adverse agency actions under section 601 are addressed to the Administrator in the first instance and, if denied, are appealed directly to the United States Circuit Court of Appeals, which applies the "substantial evidence" standard of review under FAAct section 1006(a)-(f) or the "arbitrary and capricious" and "abuse of discretion" standards under the Administrative Procedures Act (5 USC 551 et seq.). Inasmuch as the individual has no rights of discovery (other than the Freedom of Information Act) in either process, the FAA controls the denial record absolutely. Under this system, petitioner/appellants regularly encounter prohibitive standards if the FAA merely claims that it is acting in the interest of safety. Although the present petition overcomes that presumption by presenting proof that the agency's policy of denying age exemptions never was safety-related, it is nonetheless noteworthy that the placement of the issue under section 601 has been prejudicial to all previous petitioners over the past four decades.

Conversely, if the Administrator had placed the age 60 rule under section 602, where it more logically belonged, the exemption appeal process would have been far less likely to produce the outcome desired by those who perceived an economic interest in automatic denials. Under section 602, an individual adversely affected by an FAA decision has a right of appeal to an independent administrative body (originally the Civil Aviation Board, the CAB, now the National Transportation Safety Board, the NTSB) which "shall" conduct a de novo review of the entire issue and "shall not be bound" by the Administrator's findings of fact. The issue before the reviewing board then is whether the petitioner "meets the pertinent rules, regulations, and standards" previously established by the FAA. A board finding in favor of the petitioner becomes binding upon the FAA Administrator. Furthermore, at the time the age 60 rule was adopted in 1959, the CAB had power to order the FAA to issue a challenged certificate notwithstanding the regulatory standard if, in the Board's judgment, the appellant was physically able to perform safely.

When the FAA Administrator decided to place the age 60 rule under section 601, thus blocking independent board review of exemption denials, it was no secret that the CAB would be unlikely to uphold all FAA decisions. In a comment on the revision of medical certification standards that was under discussion at the same time the age 60 rule was being promulgated in 1959, the CAB stated:

While the Board recognizes that more definitive physical standards may be desirable for administrative and other reasons, we have not found on the basis of accident investigations that they are dictated by urgent safety considerations.

The FAA took note of the CAB's position. It was a well-known fact that, at that time, no change in the medical certification standards of any sort, concerning age or anything else, was needed for pilots. Thus it is not surprising that the CAB was either not asked to comment or, if it did comment, its statement was omitted from the record, in the parallel rulemaking for the age 60 rule. Only under section 601 would Administrator Quesada be assured of an ironclad, impregnable fortress for his regulation. Thus, the Administrator's decision to place the age 60 rule under section 601, effectively precluding de novo review of exemption denials, is substantial evidence that FAA assertions regarding the issue were not credible. The only venue in which the FAA's age 60 rule and its rigid no-exemptions policy could survive was in a regulatory regime immune from administrative review.

When the new age 60 rule was challenged in ALPA v. Quesada, it was upheld on its merits and on appeal. But the FAA cannot rely on that precedent, because neither the United States District Court nor the United States Circuit Court of Appeals in that case was aware of the fact, now exposed, that the agency's promulgation of the rule was based on intentional misrepresentation of data or fraud. The agency concealed from the courts - as it has for more than four decades - the fact that the rule was an act of personal favoritism that had nothing to do with safety.

The district court appears to have based its ruling largely on Quesada's wartime military record which, while admirable, had no relevance to the case; on a newspaper editorial that was published after the promulgation of the rule at issue; and on an Aerospace Medicine commentary that likewise was published after the promulgation of the rule. The commentary was not even based on the medical association's position, but rather on the newspaper editorial which it quoted at length.

It is ironic that the indexes of past issues of Aerospace Medicine show that the journal had rarely published an article having anything to do with pilot retirement age. And the same issue of Aerospace Medicine that featured the editorial endorsing the new age 60 rule also contained an abstract of a study by H.W. Orlady that reported:

Studies to date indicate that (1) chronological age does not adequately measure functional or physiological age. It has been realized that the primary attribute of the air-line pilot, in addition to the basic flying skills, is the mature skill and judgment developed through experience. (2) Present standards and procedures reflect functional or physiologic age regardless of chronological age, and may disqualify pilots of any age. (3) The majority of in-flight incapacitation cases result from such afflictions as acute indigestion, diarrhea, food poisoning, etc., and are not related to chronological age. The author states that the only way to get positive protection against in-flight incapacitation is to (a) maintain present physical and proficiency standards providing for individual testing of pilots, (b) provide a fail-safe crew, wherein on a large aircraft, any pair of flight crew members can safely function in normal or emergency situations in the event of in-flight incapacitation, and (c) provide an integrated program of initial and recurrent training for all crew members.

The Aerospace Medicine commentary cited by the court in ALPA v. Quesada simply endorsed the age 60 rule based on (a) the assertion that "accurate, valid tests" did not exist that would allow pilots to fly "after age sixty" and (b) the Washington Post editorial of Dec. 8, 1959. The Post editorial, cited by the Aerospace Medicine article and the court, stated gratuitously, "The medical evidence is ample that a significant number of men over sixty suffer a general impairment of ability and are susceptible to sudden attacks of one kind or another." But neither the editorialists nor anyone else ever offered any data to back up that assertion as it might relate to active commercial airline pilots.

( II ) ( B ) - - THE FAA HAS, FOR THE ENTIRE LIFE OF THE RULE, FROM ITS FIRST GERM OF AN IDEA TO THE PRESENT DAY, REFUSED, ITSELF, TO EITHER COLLECT DATA, MAKE AVAILABLE SUCH DATA AS HAS BEEN COLLECTED, OR ANALYZE DATA ALREADY COLLECTED FOR OTHER PURPOSES IN ANY WAY THAT WOULD THREATEN TO DISPROVE OR EVEN TEND TO DISPROVE THE AGENCY'S FALSE CLAIM THAT THE RULE IS AN INSTRUMENT OF SAFETY.

The FAA consistently has refused to collect, publish or analyze data that easily could be obtained to rebut or refute the false assertion that the age 60 rule serves a safety purpose. One of the most obvious ways to prove the safety performance capabilities of pilots of all ages is to collect and analyze data. In 1954, the Aero Medical Association's Committee on Ageing recommended the use of simulators to assess the older pilots' ability to perform. The acting chief of FAA's Medical Certification Branch recommended in March 1959 that the agency assemble and share data from that kind of "periodic testing" of "[a]bility to perform adequately under realistic flight conditions." In 1961, the respected Lovelace Foundation, under contract to the FAA to assess a protocol for evaluating the older pilot, provided an overview of a longer-range study, the outline for a preliminary trial effort, and specific recommendations for a seven-point program that could be implemented immediately with existing data and facilities. And 20 years later, in response to a congressional mandate, the National Institutes of Health (through its National Institute on Aging Panel on the Experienced Pilots Study) criticized the FAA in no uncertain terms. This criticism focused on the FAA's decades-long failure to (1) adequately collect data, (2) make available data that had been collected, and (3) analyze relevant data that had, in fact, been collected but for other purposes. The NIA panel report recommended that exemptions from the age 60 rule be granted to selected pilots for a "systematic program to collect the medical and performance data necessary to consider relaxation of the current age 60 rule," and provided a detailed proposal for that process. The FAA never did respond to the NIA panel's criticisms of its past failures. The FAA has refused to comply with the panel's recommendation for a serious study. In fact, later testimony by the Director of the NIA indicates that FAA officials intentionally misled the NIA panel in its 1981 deliberations.

Agency Disseminates False and Misleading Presentation of Inappropriately Derived Safety Data.

The 1981 report of the National Institute on Aging conclusively disproved the FAA's two decades of assertions that there was some sort of medical justification for the age 60 rule. Since then, the FAA has no longer been able to use its discredited medical arguments. Instead, for the past two decades, FAA officials have made equally unjustified assertions that there is a safety basis for the rule. The agency consistently, intentionally and purposefully has disseminated false and misleading presentations of inappropriately manipulated data regarding the risk of accident and older pilots.

FAA officials' concerted misrepresentation of safety performance data began with its misuse of statistics in a study that had been conducted by Charles F. Booze, Jr. of the FAA Civil Aeromedical Institute. After the NIA report destroyed medical arguments for the age 60 rule, the FAA turned to a distortion of data from the Booze study in order to make it appear that older, more experienced pilots were less safe. The stated purpose of the Booze study had been to ascertain why some general aviation pilots (e.g., doctors and lawyers) had more accidents than other general aviation pilots. In the course of his study, Booze looked at aircraft accident data for only one year - 1974. In two of Booze' several different analyses, he computed the risk of accident for all pilots - including doctors, lawyers, housewives, and airline pilots - based on experience and age. Because airline pilots (1) exist only in the age brackets under age 60, and (2) are by far the safest of all pilots, generating hundreds of thousands of essentially accident-free flight hours, but are present only in the under-60 age brackets, the computed risk for those brackets in which they appear are severely depressed. That is, they are severely understated as compared to brackets without these thousands of air carrier pilots and their hundreds of thousands of super-safe flight hours - ages 60 and above. This numerically induced depression in apparent risk - not a change in true risk (either for the air carrier pilots or the general aviation pilots with whom they are "lumped") causes the false and misleading appearance of an increase in risk beginning at the point at which the age 60 rule forces the airline pilots out of the population under study - here at age 60. The phenomenon is not controversial, is well and widely understood, is easy to recognize, and it has been explained repeatedly by researchers with impeccable credentials. Booze himself did not consider the data produced in his Tables 5 and 7 as representative of an age-risk analysis. In fact, his only comment on that issue referenced his Table 2 (occupation vs. age) where the phenomenon was far more subtle, and concluded that "[t]he relationship of age and exposure [flight experience] remain to be examined."

The FAA's presentation of the inappropriately manipulated, plotted Booze data to the NIA Panel on the Experienced Pilots Study misrepresented Booze' findings by depicting the false and misleading appearance of an increase in risk beginning at age 60 - and undoubtedly was recognized as such by FAA officials at the time.

Two years after the release of the NIA report destroying FAA's medical defense of the age 60 rule, FAA paid for a supposed age-risk statistical study by a non-statistician consultant, Richard Golaszewski, who reproduced the inappropriate and misleading age-risk data from the Booze report. Golaszewski produced a report, the Flight Time Study, that perpetuated the Booze misrepresentation of accident data. Despite its having been rejected and refused publication by the FAA's Office of Aviation Safety from the very time of delivery, this flawed and misleading document has been publicly endorsed and promoted by FAA officials ever since.

The 1981 Report of the National Institute on Aging Proved, Once and for All, the Falsity of the Medical Arguments that the FAA, for More Than 20 Years, Had Asserted as the Rationale for the Age 60 Rule.

As shown above, the FAA adopted and enforced the age 60 rule for secret economic reasons while falsely asserting that the reasons for the rule were of a medical nature. For more than two decades the agency refused to accept or acknowledge the growing body of evidence - produced on a worldwide basis - that there was no medical or other basis for the age 60 rule. Instead, the agency continued to use various medical arguments to defend its original justification for the rule. But in 1981 the nation's premiere scientific bodies investigated those claims, concluding unanimously that the FAA's medical arguments were meritless. After that, the FAA could no longer claim that there was ever any valid medical basis for the rule.

Congress in 1979 directed the National Institutes of Health (NIH) to conduct a study concerning mandatory age retirement for pilots. Pursuant to this mandate, the NIH assigned the task to the National Institute on Aging (NIA), which awarded a contract to the Institute of Medicine (IOM) of the National Academy of Sciences (NAS), to provide an objective study regarding the medical questions related to the issue. The resulting IOM study was reviewed by an 18-member panel of experts assembled by the NIA. The NIA panel report made it irrefutably plain, as did the IOM study, that the FAA's 20 years of medical arguments in support of the age 60 rule were baseless. Both the IOM and the NIA panel called for allowing waivers to pilots who wanted to continue to fly beyond age fifty-nine. They recommended that the FAA grant exemptions to the age 60 rule and conduct an objective study of safety performance of pilots of all ages.

The NIA panel expressed strong dissatisfaction over the fact that FAA had never appropriately garnered data on the issue:

Both the IOM Committee and this Panel have attempted, by every means available to them, to secure and utilize data directly relevant to the questions at hand. This undertaking met with only limited success for three reasons: 1) adequate data have not been collected; 2) in instances where data have presumably been gathered, they are not available; and 3) some relevant data-gathered for other purposes-have not been analyzed in line with the questions facing this Panel.

The NIA panel concluded that "there is no convincing medical evidence to support age 60, or any other specific age, for mandatory pilot retirement." It also found that, although disease and disability increase with age, airlines "have achieved a very high level of safety during the past two decades," adding:

This achievement appears to be the result of a complex interplay among several factors, including striking advances in technology, a complex system of performance evaluation by air carriers and the Federal Aviation Administration, a variably effective system of government and air carrier medical surveillance, and a complex system of regulations designed to minimize risks to the traveling public. …. One inevitable, but unfortunate, by-product of the present system is the unavailability of adequate data concerning the medical status and piloting performance of air carrier pilots past the age of 60 since, under the age 60 rule, persons have not been permitted to continue as air carrier pilots past that age.

Unwittingly relying on distorted data provided by FAA, the NIA panel cited Booze to the effect that pilot accident rates declined until age 60 and then rose. As shown above, the portion of the data in the FAA's Booze report cited to the panel was not relevant to carrier operations; both its general inferential value and the specific references presented to the panel were misleading. Even so, the NIA report said, "The Panel attaches no special medical significance to age 60 as a mandatory age for retirement of airline pilots."

Debunking FAA's past assertions that the age 60 rule was justified by the danger of pilot incapacitation, the report said:

The Panel concluded, as did the expert committee assembled by the Institute of Medicine, that on purely medical grounds, age 60 is not an age of special significance with respect to the occurrence of either acute events (such as cardiovascular illness or stroke) or subtle changes (such as those in performance and intellectual function) that may adversely affect pilot performance.

The panel said there was no medical reason "for singling out any other age below or above age 60" for mandatory pilot retirement. Dr. Robert N. Butler (who was Director of the NIA in 1979 when it was asked to evaluate the age 60 rule and in 1981 when the report was issued) recalled later, "Consulting experts to the NIA, the Institute of Medicine and other NIH scientists found no medical justification for the rule." He went on to say that the panel "suggested that the retirement at age 60 rule be waived on a limited basis to permit a medical study of older pilots.... Unfortunately, the FAA did not accept our recommendation. As a result, we continue to lose the expertise of seasoned pilots...."

What the NIA panel recommended was that the age 60 rule be continued for pilots in Part 121 flight operations and extended to Part 135 operations, but that a system of waivers allow pilots to continue to fly after reaching age 60 while FAA monitors and collects performance data. Years later it was revealed that the only reason why the NIA panel did not call for abolition of the age 60 rule was because panel members had been deceived by FAA officials' assurances that the FAA was going to start allowing waivers to let pilots fly beyond their sixtieth birthday. Dr. T. Franklin Williams, who succeeded Butler as Director of the National Institute on Aging, recalled later:

At the time the NIA Report was issued, many of its members, if not all, believed that the FAA had already informally agreed to institute a program of post-60 piloting as recommended. Following the NIA Report, the FAA issued an advance notice of proposed rulemaking to institute a study of the medical and proficiency status of airline pilots over age 60. Two years later, however, the FAA abandoned the proposal....

It was almost a year after the publication of the NIA Panel Report when the FAA announced that it was "considering developing and implementing a program" responsive to the NIA panel recommendations. Two years after that, however, the FAA withdrew the notice that it was considering such a program. The FAA notice of withdrawal alluded to economic factors ("retirement and insurance plans which conform to retirement at age 60") but asserted that safety was the reason for calling off the program that would have allowed waivers and monitoring of air carrier pilots beyond the sixtieth birthday. T. Franklin Williams later recalled that "in 1986...the Chief Flight Surgeon and other staff of the Federal Aviation Administration...gave no medical nor safety reasons for not going ahead, but indicated that operating staff of the Federal Aviation Administration were opposed." The fact that FAA officials misled NIA panel members is consistent with their other conduct. It appears that the agency never really considered the panel's conclusions and recommendations, and that FAA's stated reasons for abandoning the panel's suggestion amounted to disingenuous disinformation.

The National Institutes of Health repudiated more than 20 years of claims by FAA that medical reasons formed the basis for the age 60 rule. The NIH produced a major study that destroyed two decades of FAA's conclusory, straw-man medical arguments. And now, over 20 years have passed since the NIA Panel Report was published. The FAA has abandoned its discredited medical arguments for the age 60 rule. And yet, to the present day, FAA has failed to act in good faith on the findings and recommendations of the IOM study and the NIA panel.

In the more than two decades since the NIA Panel report was issued, evidence of the FAA's dereliction has continued to accumulate. In 1985, the medical director of TAP-Air Portugal evaluated more than 1,500 pilots at risk - both active and retired - from 1945 to 1983. After noting that the over-60 (retired) pilots had submitted to "the same medical, psychological, and psychomotor tests" as pre-retirement pilots, the study noted that "64% of the over [age] 60 examinees were absolutely fit for flight duties." In a 1994 study performed under contract to the FAA/CAMI, Dr. Robert Besco determined that "retired airline cockpit crews have a life expectancy of more than 5 years longer than the comparable general population." In 1988, Froom reported:

The incidence of fatal accident from human error is far greater than that from physical illness. Since inexperienced pilots have a 2-3 times increased incident of mishaps due to pilot error, the estimate of risk of disease related in-flight sudden incapacitation should be balanced by consideration of pilot inexperience. Therefore, it may be preferable to grant waivers to experienced pilots with an increased incidence of disease-related inflight sudden incapacitation than to replace them with novices.

One year later, Jochanan Benbassat introduced the concept of a "decision analytic model" for the establishment of disqualification/waiver standards.

Although [this study is] deliberately biased in favor of grounding the veteran, the analysis indicates that the risk of sudden death or incapacitation in an experienced fighter pilot with an incidentally detected illness should be increased ten-fold to 46-fold to justify his or her replacement by a novice.

Whether for fighter pilots or airliner pilots, the balancing of risks model is an appropriate decision making tool. Its use confirms what already is well-known, that FAA's assertions about safety performance of older pilots are profoundly misleading.

FAA disregarded data developed in the Hilton Systems study regarding simulator exercises, a study which proved that the simulators are just as effective as neuropsychological tests.

In 1990, the FAA commissioned Hilton Systems, Inc. to perform a large, multi-part study, for the stated purpose of developing and validating "new technologies or batteries that would allow for alternatives to the [age 60] rule."

To fulfill the design objectives of the study, in the fourth and final part of the series, Hilton Systems selected three separate neuropsychological test batteries for their relevance to the demands of piloting. Three test flight scenarios also were developed - including an "assessment procedure" deemed by the FAA's own staff to be "more objective, quantifiable, and definitive than the typical proficiency 'check ride.'" These simulator exercises included "complex maneuvers [to be] performed under stress or in novel situations" specifically designed to reveal impairment in older pilots. Hilton Systems staff - assisted by FAA's own staff of simulator experts, instructors and check pilots - then tested forty pilots ages 41-71 on these three test batteries and compared the results against their performance on the three simulator scenarios in the FAA's own B-727, high fidelity, "virtual reality" simulator. These comparison tests showed "significant correlation between pilot age and the simulator measure, between pilot age and the predictor tests and between the predictor tests and the simulator …." In short, this massive study of three different, specially selected neuropsychological test batteries, administered with the assistance of and under the direct supervision of expert FAA staff, confirmed the virtual reality simulator approved by the FAA in its 1981 Advanced Simulation regulations as a valid test of impairment in older airline pilots during all flight situations, including complex maneuvers performed under stress and in novel situations.

And yet the FAA, when soliciting public comments on this massive effort to develop "alternatives to the [age 60] rule," buried these findings in favor of a minor part of the overall study, the Consolidated Database Experiment, a segment that the FAA itself had declared at the outset "was not intended to finally establish causal relationships between age and accident rates" because "the quality of the available data will not support such an investigation." Despite this severely limiting caveat, the FAA declared publicly that comment on this study was solicited in its "consideration [of] whether to initiate rulemaking on the . . . Age 60 Rule." Moreover, in this announcement, FAA disingenuously misrepresented the facts as reported in the discredited, rejected, and publication-refused 1983 Golaszewski study as if they were those of the 1981 NIA panel study:

The NIH study included data collected from 1976-1980 and was obtained from FAA medical records and from a [NTSB] data base. The study compared the accident rates for each age group after adjusting for the amount of total and recent flying done by different age groups. The methodology expressed accident rates as the number of accidents per flight hour. This study indicated that the accident rates for pilots whose medical certificates permitted them to fly as commercial airline pilots had a substantially higher accident rate after age 60 than at younger ages.

Not only does this passage not accurately describe the NIA panel study, but it is lifted virtually verbatim from the FAA's misrepresentation to the Seventh Circuit in Baker v FAA regarding the (previously discredited and publication-refused) Golaszewski study:

The Flight Time Study collected data covering the years 1975 through 1980 obtained from FAA medical records and from a [NTSB] data base. The Flight Time Study compared the accident rates for each age group after adjusting for amount of total and recent flying done by different age groups. . . . [This study] expresses accident rates as the number of accidents per flight hour. . . . The statistics indicate that once pilots reach approximately age 60, the accident rate climbs even though experience also climbs. The Flight Time Study does focus on subsets of the pilot population who have passed medical standards required of airline pilots.

The NIA Report, on the other hand, referenced the 1977 Booze study. In this study, the data was from 1974 only, the accident rate was expressed as "rate/1000 [pilots]" (not per flight hour); and there was no segregation by medical class - only age and flight time. And, as for an assessment of air carrier pilots, Booze declared only that "[a]irline pilots, on the other hand, have the highest cumulative experience of any group but continue to have low accident rates." Further, Booze made no analysis of age, per se, declaring that "[t]he relationship of age and exposure remain to be examined." Moreover, when referencing the Booze study, the NIA report specifically noted that "general aviation pilots . . . whose experience [not medical class] most closely parallels that of professional pilots [not airline pilots] . . . have declining accident rates until the age of 60, after which those trends reverse."

FAA's only possible reason for burying the Hilton Systems' Experimental Evaluation of Pilot Performance data (from a study that was expressly intended to develop and prove the simulator to be a viable age-60 assessment device) evidently was that it was successful. The FAA's reason for burying of this data was as disingenuous as its choice of the Consolidated Database Experiments - specifically declared at the outset to be inadequate for the declared purpose - for public comment. FAA officials obviously intended the Consolidated Database Experiments to validate the previously discredited Golaszewski study - and were dissatisfied when it did not. The FAA's Statement of Work identified only the Golaszewski study as prior "statistical" analyses, failed to disclose its discredited and publication-refused status, and misrepresented its "findings" as to the "Class I and Class II pilots" even though no data had been presented for these classes, and misrepresented as a "key assumption" that Golaszewski had considered that recent and total flight times in the FAA Medical History File and NTSB accident database were equivalent. Hilton Systems was ordered to "utilize improved statistical methodologies and address issues raised in prior studies" - with the Golaszewski study being the only "prior [statistical] studies" (sic) identified.

However, like the earlier analysts, Edwin Kay (statistician/author of the Consolidated Database Study) harshly criticized the Golaszewski study, and refused to replicate its analyses of heterogeneous populations - different classes of medical certification combined together for analysis - and provided no support for the FAA in his original submission. Adhering rigidly to strictly homogenous medical classifications, Kay found and reported: "[T]he data for all the various groups of pilots were remarkably consistent in showing a modest decrease in accident rate with age." And specifically as to airline pilots: "Our analyses provided no support for the hypothesis that the pilots of scheduled air carriers had increased accident rates as they neared age 60." As an overall conclusion - in the originally submitted "final product" - Kay said: "It was as easy to conclude that the FAA's system improved the composition of the groups over time as it was to conclude that pilots' performance improved with age."

Recognizing the negative impact this conclusion would have on the FAA's ability to defend its age rule, the FAA/CAMI contract monitor returned the study to Kay with a "request" to find an age that the FAA could use in its defense of the rule. Reluctantly complying, Kay reviewed the already completed analyses by eye (sometimes called "data snooping"), selected short segments from four larger sets of medical Class II and III pilot data for "post hoc" reanalysis, but treated them as "planned" tests "to maximize the probability of finding even hints of an increase in accident rate with age for pilots near age 60," even remarking, "It is quite likely that any trend detected is spurious." Relying on these new, after-the-fact tests of visually selected snippets of data, the author created a new - and now FAA acceptable - concluding statement: "Taken together, these [new] analyses give a hint, and a hint only, of an increase in accident rate for Class III pilots older than 63 years of age. This suggests that one could cautiously increase the retirement age to 63."

As with the misleading Golaszewski presentations from a decade earlier, FAA promoted this likely spurious "hint" of an increase at age 63 as if it were both substantial and true. It was not well received in the international community. A brief reference to the FAA's Age 60 Project appeared in an International Civil Aviation Organization (ICAO) Air Navigation Commission working paper, but notes only the database study and the reported conclusion "one could cautiously increase the retirement age to 63." The favorable pilot-simulator evaluation results - the declared objective of the entire project and its most striking and beneficial result - which apparently had not been pointed out by the FAA, thus were not mentioned in the ICAO document.

The "age 63" comment did reappear, however, in a U.S. Department of Transportation (DOT) appropriations bill for fiscal 2000 reported out by the Senate Appropriations Committee. The Committee noted that it had asked the FAA "why the United States should not 'cautiously increase the retirement age to 63' like other countries have for commercial aviation." The rationale underlying this original query is without foundation. The question begs explanation. No "other countries" in the ICAO community are currently on record as having adopted age 63 as a maximum age limit for airline pilots. In a 1996 survey of ICAO member States, of 57 States permitting airline pilots to fly beyond age 60, seven reported allowing flight to age sixty-three; however, in an ICAO listing four years later for the year 2000, none reported 63 as a statutory or regulatory upper age limit.

Nevertheless, the Senate Committee ordered the FAA to determine the risk of all professional pilots ages 60-63 and compare that risk to the risk of all professional pilots in overlapping age brackets (i.e., 57-60, 56-59, 55-58 . . . 21-24) under that age. Like the rationale underlying it, the order is seriously flawed. In the first place, it turns the concept of inferential statistics on its head. The Committee, by the nature and circumstance of its order, suggests that, for the narrowly selected group of the most highly trained, experienced, and qualified pilots, most thoroughly and frequently tested to the highest regulatory standards, and most closely and carefully scrutinized at all times and in all areas, their risk characteristics can be inferred from the mass of "all" commercial and non-commercial pilots. The supposition is absurd. Kay (1993) revealed that the differences in risk between pilots known to be airline pilots and mere "commercial" pilots (medical Class II) varied from 22,000% (age 35-39) to 9,200% (age 55-59). Even an introductory text on statistics declares that: "Inferential statistics makes it possible to draw inferences about what is happening in the population based on what is observed in a sample [drawn] from that population." Inferences do not go from the general to the particular, as here. The error of this inappropriate application of statistical methodology is clear:

[A]ppropriate techniques of inferential statistics are used to estimate the values of population parameters from sample statistics. If the sample is properly selected, the sample statistics will often give good estimates of the parameters of the population from which the sample is drawn; if poorly chosen, erroneous conclusions are likely to occur.

The Committee effectively ordered the FAA to replicate the procedural flaw and its erroneous results that destroyed the usefulness of the earlier (rejected and publication-refused) Golaszewski Flight Time study. The flaw underlying the Committee's directive - as it was in the FAA's inappropriate use of the Golaszewski data - was to analyze heterogeneous pilot populations demographically skewed across age 60 because of the FAA's age 60 rule. As discussed below, these same flaws permeated the Golaszewski Flight Time study; their misleading effects are common knowledge in the scientific community. The Committee's order thus was improper on its face as it called for replication and vindication of the previously discredited Golaszewski study.

As revealed in the discussion of the Golaszewski study infra, the FAA was on fair notice in year 2000 that the Appropriations Committee's directive was flawed in theory and practice. For this reason, the FAA was derelict in having failed to inform the Committee of the latter's misunderstanding of the status of pilot age limits in the international community, and to negotiate with the Committee for a more relevant and realistic analytical protocol. The fact that it did not do so - combined with its enthusiastic compliance with an order it well knew to be thoroughly flawed and guaranteed to produce misleading results - is prima facie evidence of FAA's intent - perhaps even its complicity with the Committee - to mislead. Responding to the Committee's order, FAA produced four studies, of which only the fourth was directly responsive to the congressional mandate.

The FAA's fourth study, Pilot Age and Accident Rates Report 4: An Analysis of Professional ATP and Commercial Pilot Accident Rates by Age, following the Committee's directive, replicated the earlier Golaszewski findings precisely. The author explicitly denied this perfect match by declaring, "The results of this [Report 4] are generally consistent with the conclusions reported by Golaszewski (1983, 1991,1993) despite the use of different methods and samples," However, all respects material to the result to which he refers - comparing risk of professional pilots above and below age 60 - his pilot categories (pilots holding medical Class I and II certificates), his age ranges (above and below age-60), population demographically skewed at age 60 by the Age 60 Rule, itself, and his analytical methodology ((accident count) / (hours flown) / 100,000 = rate of accident per 100,000 hours), were lifted from the rejected and publication-refused Golaszewski Flight Time Study. Moreover, throughout the remainder of his report, the FAA-employed principal author favorably compared his findings to those of Golaszewski. And Broach made the bizarre claim that the "analyses reported in this study are based on a sample working population of airline pilots [actually the universe of all professional pilots] that is very similar to the working population of airline pilots subject to the Age 60 Rule [actually a very restricted subset of pilots]." Not surprisingly, Broach found a (false and misleading) "statistically significant" increase in risk for the age 60-63 age group.

Obviously pleased with these results, FAA arranged to have the author, Broach, present these flawed, inappropriate, and misleading findings at the annual Aerospace Medical Association Meeting, Reno, Nev., May 6-10, 2001. In a subsequent rebuttal, Samuel D. Woolsey, J.D., a long-time researcher of the age 60 rule and webmaster of a free access, public service website dedicated to the subject, addressed a letter, critical of the FAA/Broach presentation, to the president of the Association. Explaining his purpose in writing, Woolsey stated:

I believe it important that those who provide information to the public insure its accuracy, and maintain an objective neutrality with respect to controversial subjects. . . . Thus, I respectfully object to your Association's having provided a forum at its year 2001 convention for the FAA's and CAMI's Dr. Dana Broach to present an excerpt from the fourth and most seriously flawed of those studies.

Woolsey's factual representations are found to be highly reliable, his references to other materials accurate and relevant, and his analysis of the weaknesses and strengths of the analytical protocols of the various studies compared valid. Petitioners hereby incorporate Woolsey's letter to the President of the Aerospace Medical Association into this petition.

The agency's failure to make reasoned decisions based on actual data was reflected in an analysis by FAA Federal Air Surgeon P. V. (Pete) Siegel as long ago as 1972: "The fact that we have not published logic and statistics is no valid proof that we are unfounded, outdated, or inactive," his analysis said. The passage concluded, "There are several advantages to the aviation community in allowing pilots beyond 60 to demonstrate their qualifications for a first-class medical certificate that would not be possible should there be an age limit for medical certificate issuance." That conclusion appeared to offset the logic of Siegel's accompanying transmittal memorandum, which said, "We must conclude from the arguments presented in opposition to the Age 60 rule that no valid reasons exist that would offset the rule's positive impact upon flight and public safety." Siegel's assertion that the rule had a positive impact on flight and safety was, however, not based on logic, statistics or data of any sort.

( II ) ( C ) - - THE FAA HAS, FOR THE ENTIRE LIFE OF THE RULE - FROM ITS FIRST GERM OF AN IDEA, TO ENACTMENT TEN MONTHS LATER, TO THE PRESENT DAY - ACTED INTENTIONALLY, CONTINUOUSLY AND PURPOSEFULLY TO FABRICATE AND DISSEMINATE FALSE AND MISLEADING DATA TO SUPPORT THE RULE AND/OR TO BAR THE PRODUCTION OF EVIDENCE THAT WOULD DISPROVE OR EVEN TEND TO DISPROVE ITS FALSE CONTENTION THAT THE RULE WAS AN INSTRUMENT OF SAFETY.

At no time since the establishment of the age 60 rule has the FAA allowed the production or dissemination of meaningful data that would rebut or refute its false assertions that the age 60 rule has a safety purpose.

FAA ignored expert advice in establishing its so-called Georgetown Clinical Research Institute (GCRI) study in 1960, and later misrepresented both this study and its companion Lovelace Foundation Study of Physiologic and Psychologic Aging in Pilots as "major studies" of the pilot aging issue.

FAA in the 1960s conducted a useless in-house study that it misleadingly titled the Georgetown Clinical Research Institute study while declining to pursue more promising research that had been proposed to it under contract by the Lovelace Foundation. GCRI (not Georgetown University) spent five years accumulating unorganized data, primarily on air traffic controllers, some of whom were pilots, in a project it later admitted (following an inquiry by the Government Accounting Office, and on the eve of an investigation by the U.S. House Committee on Government Operations) came up with no usable data, no statistical design for analysis of data, and no analysis. In its 1961 comprehensive report to the agency, the Lovelace Foundation for Medical Education and Research had recommended that the FAA begin with a seven-point program that would use the "most exacting" techniques and routine measurements in a battery of tests to produce the FAA's desired "Physiological Profile Aging Ratio (PAR)," to replace FAA's admittedly arbitrary age 60 cut-off with individualized testing. Among the seven points were:

1. Stimulate interest in other agencies for a joint program to minimize costs.
2. Begin collecting and analyzing public data already in existence.
3. Access the extensive data in military pilot service records.
4. Access the existing data from its own (FAA) pilot records.
….
6. Perfect a quantitative method of evaluating flight simulator performance.

FAA rejected all the enumerated suggestions, as well as the foundation's proposal to begin with a two-year test program prior to a longer-term study. Contrary to the agency's repeated public assertions, and notwithstanding the stated purpose of its failed GCRI project, the FAA has been unalterably opposed to the development of a physiological profile that could be a substitute for the arbitrary cut-off based on chronological age.

When the FAA voluntarily terminated its wasteful GCRI project in 1966, the Federal Air Surgeon, P.V. Siegel, informed the House investigating subcommittee that "the FAA would now take advantage of the results of the NIH-sponsored [Lovelace Foundation] study." Less than six months later, however, in a "Dear Al" letter to the director of the Lovelace project, FAA's Siegel asked that the foundation end its examination of the older pilot in favor of the younger pilot - which, sensibly, Lovelace refused to do. Siegel wrote to Lovelace:

It is generally accepted that the impetus for initiating your study (and ours) was the adoption of the 60-year rule with the resulting pressure to develop a means of selecting pilots who might be able to fly beyond the age of 60…. Instead of a primary concern with the upper age bracket - selecting those who are above the average 60 year old with the idea of allowing them to fly past this age - we should [instead] concern ourselves with selecting out those in the lower age group who measure below the average.

Following review of the Lovelace study's annual progress report for 1968, showing preliminary results extremely favorable to the health and fitness of the older air carrier population, Siegel arranged a staff visit to the foundation. During this visit, the FAA attendees first challenged the source, accuracy and validity of the foundation's findings, then pleaded with the foundation representatives to restrict the distribution of the Lovelace data, -- or at least agree not to testify against the FAA if the age 60 rule were challenged. Moreover, on the specific question of whether the Lovelace data would support a waiver of the rule, the FAA group's leader, C.I. Barron, M.D., refused to allow open discussion.

In a subsequent report to Siegel regarding this visit, Barron declared the Lovelace Foundation's findings irrelevant to the age 60 rule issue. An internal FAA memorandum assessing this letter, correspondence between Siegel and NIH, and handwritten comments by Siegel to Reighard, all indicate that the Barron letter (or its substantive content) was "leaked" to NIH and contributed to the termination of NIH funding for the Lovelace studies in 1969. Due to this premature termination, no conclusive "findings" were ever derived or published (as in the case of its companion GCRI study).

However, in 1989 - twenty years later - FAA officials informed the Government Accounting Office that both FAA's voluntarily abandoned GCRI study and the prematurely terminated Lovelace Foundation study (neither of which had placed any usable data in the public domain ) were "major studies" that the FAA had "relied on" in "rejecting alternatives to the Age 60 Rule." In yet another instance of confusing statements, FAA advised House committee investigators in 1966 that it had expended some $1.2 million on its GCRI effort, but informed Congress in 1979 that the sum had been more than double that amount, $2.5 million.

In an admitted effort to thwart pending legislation that would have mandated an increase in the age limit, Federal Air Surgeon Reighard and FAA Deputy Administrator Quentin Taylor arranged to have a no-bid, sole-source contract for an "objective" analysis of the age 60 rule issued to a former Federal Air Surgeon, Robert Goddard. But Reighard and Taylor both knew that Goddard, who had been Reighard's supervisor, was a strong advocate of the age 60 rule. When the propriety of Goddard's selection was challenged publicly, Reighard and Taylor sought, without success, to secure a credible, independent agency to review and validate the resulting study.

In a deposition years later, Reighard was asked about the fact that FAA Administrator Bond had been critical of Reighard's judgment in appointing Goddard to conduct that study. Reighard again confirmed that what the Administrator was concerned about was "the appearance, the political effect" of appointing a biased advocate to conduct the purportedly objective study. The fact that the FAA's Federal Air Surgeon and Deputy Administrator would award such a contract to a known supporter of the rule for the express purpose of "heading off legislation," and that the Administrator became concerned not with the contracted study's technical validity, but rather with the appearance and politics of Reighard's action, is further prima facie evidence of the lack of credibility of the agency on the issue.

Despite its purely political purpose, the clear bias in Goddard's selection, and the resulting controversy - both internal and external - as well as the refusal of every independent agency asked to either review or validate its findings, FAA officials nevertheless falsely told the congressional Government Accounting Office a decade later that the Goddard study had been one of seven "major studies" the FAA had "relied on" in "rejecting alternatives to the Age 60 Rule."

( II ) ( D ) - - PILOT INCAPACITATION, WHICH THE FAA HAS IDENTIFIED AS A MAJOR THREAT, PURPORTEDLY JUSTIFYING A POLICY OF NO EXEMPTIONS TO THE AGE 60 RULE, ACTUALLY POSES NO THREAT TO SAFETY IN AIR CARRIER OPERATIONS, REGARDLESS OF PILOT AGE.

FAA officials have claimed that the age 60 rule is needed because pilot incapacitation would cause airline accidents. That claim is refuted by the historical record that begins even before the rule was first proposed to Administrator Quesada by his friend, C.R. Smith, the American Airlines chairman. Undisputed data show that incapacitation, even death, has not caused accidents in multicrew aircraft of the types flown by commercial air carriers since the late 1960s and early 1970s when all the airlines adopted "fail-safe" procedures and equipment. Since these protective measures - prompted by thorough analysis of five aircraft accidents of the early 1960s that did involve pilot deaths - have been adopted, pilot deaths and incapacitations (not age-related, certainly not age-60-related) have continued to occur but have not caused a single accident. And the universal use of the two-communication rule, requiring systematic verbal interaction between the aircraft's two pilots, means that any incapacitation is discovered before it can endanger the flight. The introduction of a regulation requiring use of shoulder harnesses prevents an incapacitated pilot from falling forward onto the instrument panel, so that the other pilot can immediately take full control of the aircraft.

An influential study by Captain Harry Orlady in 1966, before the fail-safe systems were put in place, reviewed the 16 cases of "death in the cockpit" that had occurred aboard scheduled U.S. air carrier flights in the prior 15 years. All were due to heart attacks. "Of these 16, one was 28 years old, four were in their 30's, seven were in their 40's, and the 'old men' were 50, 52, 52, and 55," Orlady noted. "Six of the deaths occurred during flight, nine immediately after landing, including two on the roll-out, and one occurred on the ramp as the pilot was boarding his airplane." The only one of these that caused an aircraft accident was the heart attack of a 38-year-old Captain Karl Rader on a Flying Tiger Constellation at Burbank, Calif. in 1962. Reporting that investigation had found the newly-hired copilot was inadequately trained, had no verified large aircraft experience, and had falsified his flying experience before being hired, Orlady reported that this crash helped to focus attention on the fact that "the ultimate safety of flight in these cases depends primarily upon the capability of the remaining crew members to recognize the problem in time to take over the operation of the airplane." Orlady, chairman of the Flight Safety Foundation's Aeronautical Coordinating Committee, called for a thorough reevaluation to come up with "processes or procedures which facilitate recognition of the problem, maximize the warning time available to the remaining flight crew, and develop operational procedures to best cope with it." Orlady pointed out "the ease and rapidity with which the other pilot can take over the controls," and the need for "an effective and reliable restraint system" to keep a pilot from slumping over the controls. When FAA announced the age 60 rule December 5, 1959, no U.S. air carrier accident had ever been caused by a pilot fatality.

A multinational study by L. E. Buley reported on 17 cases of "death of airline pilots while on 'active' duty during the period January 1961 through April 1968," resulting in five aircraft accidents. (The last death/accident reported was in August 1966, but the analysis covered data to 1968.) No correlation with age is apparent - certainly not "old age" - with one succumbing pilot having been in his 20s, three in their 30s, nine in their 40s, and only four in their 50s. Of the five resulting in accidents, no correlation with age is apparent, with one aged 38, one 44, two 45, and the fifth age 59. A more detailed analysis revealed that in four of the latter cases, it was not the pilot's death but rather systemic failures, later corrected, that ultimately led to the accidents. In two of the cases, the copilots were incompetent; in the two other cases, lack of adequate restraint (shoulder harnesses) allowed the distressed pilots to slump over the controls, precluding the remaining pilot from effecting a recovery.

Buley commented on efforts then under way to develop and implement "fail-safe" policies and procedures in the airline industry, an approach which "requires both the presence of additional competent staff in the standard, large aircraft, a multiple-pilot crew complement in air carrier operations "to take over the duties of any 'failed' member without an unacceptably high workload resulting, and the environment in which this may be done in a tight situation in an orderly fashion." He also noted work going on to improve "pilot restraint" and other measures. The study by Dr. Buley, Chief of Aviation Medicine for the International Civil Aviation Organization, helped focus worldwide attention on development of solutions that would prevent pilot incapacitation, whenever it occurs, from causing air carrier accidents.

Following the detailed analyses by Orlady and Buley, the United Air Lines Medical and Flight Training departments conducted extensive simulator tests for handling pilot incapacitation incidents in multiple-crew, airline-type flight operations for (1) obvious incapacitation and (2) subtle incapacitation. It was in these tests that the requirement for an effective shoulder harness and the two-communication rule were developed. A manual-lock shoulder harness (as opposed to the inertial-lock reel as found in automobiles) keeps a pilot suffering obvious incapacitation from slumping over the controls - but FAA has not mandated installation of these harnesses. The two-communication rule enables timely detection of subtle incapacitation and transfer of flight duties where necessary. The two departments working together developed policy, protocol and procedure for dealing with pilot incapacitation at any time during flight, even for the most critical moments during takeoffs and approaches to landing. Their findings were reported in Aerospace Medicine in 1969-71. United's "two-communication" rule and pilot restraints added significantly to the model "fail-safe" system to prevent accidents due to pilot incapacitation. The program development was led by the airline's regional medical director, Dr. C.R. Harper, medical director, Dr. G.J. Kidera, and psychologist, Dr. J.F. Cullen in association with United's simulator training department. Their study fostered the creation of a classroom training program for flight crews, a training video on the "two-communication" rule, and installation of highly effective shoulder harnesses. The "two-communication" training program developed by United was adopted by the airline industry universally. The installation and use of the manual-lock shoulder harnesses, though not required by FAA regulation, has similarly been adopted throughout the industry. The 34-minute video produced by United's training department demonstrated the operational procedures developed. The film, with accompanying training materials, was marketed by United Airlines throughout the aviation community in the early 1970s. Yet it is not clear why FAA still has declined to mandate by general safety regulation either in-flight incapacitation training or observance of the two-communication rule, either of which eliminates any rational argument that the age 60 rule could be justified by the danger of an incapacitation accident in multiple-crew airline flight operations.

Two studies define the pilot incapacitation-induced accident risk in multiple-crew air carrier operations following the UAL-developed and distributed incapacitation protocol - Lane (1971) and Chapman (1984).

In reviewing Buley (1969) data as well as additional information made available at an IACO meeting in late 1970, Lane made inferences about the population base and average flight stages per year in worldwide, multiple-crew, air carrier flight operations, to derive estimates of risk for both incidences of incapacitation and probability of accident resulting. To place these risks in a realistic perspective - something that previously had not been done - Lane noted that, in "the absence of a suitable safety yardstick…[pilot incapacitation events] can be regarded as alarmingly frequent or negligibly infrequent, depending on the viewpoint of the reader." To overcome this problem of undefined perspective, Lane turned to what he considered to be a suitable measure of safety "in the criteria underlying the aircraft design requirements" and equating the "flight crew" as a critical component, or subsystem in the total aircraft/flight environment. In that context, the author determined that the "actual incidence of disease-induced, incapacitating events" was one-third to one-twentieth that required by the British operational performance (failure) criteria, including that for the most critical phases of flight - takeoffs and landings.

Just over a decade later, Chapman (1984) also referred to the generally accepted aircraft design criteria for critical functional/mechanical systems in air carrier operations, quantified the risk of sudden incapacitation from all causes (277 reported) in multiple-crew flight operations from IATA data covering the years 1965-1981 and thirteen cardiovascular events from 1965 to 1977. Because too few accidents had occurred due to the failure of interest (cardiovascular) for a valid analysis, Chapman developed scenarios to be conducted during the course of normal recurrent simulator training for the aircrews of British Caledonian Airways, all involving the unexpected, subtle incapacitation of one pilot at a critical phase of flight.

Correlating the 13 reported actual cardiovascular events from 1965 to 1977 with the IATA population figures for the same era, Chapman computed a risk of cardiovascular failure at one in 20.8 million flight hours. Next, correlating the simulator exercise-derived "crash rate" with the 13 known cardiovascular events for the same calendar years, Chapman then derived a risk of accident resulting from cardiovascular failure in multiple-crew air carrier flight operations under the unrealistically "very worst possible" circumstances, at one in 8.3 billion flight hours - or, at the then existing level of worldwide flight activities - one in 400 years. And, like Lane more than a decade earlier, Chapman compared these risks with those of generally accepted airworthiness standards (both European JAR and U.S. FAA) for large air transport-type aircraft, finding:

In airworthiness terms, the risk of catastrophe due to all causes of pilot incapacitation should lie between 1 in 100 million and 1 in 1000 million [flight] hours (10 /-8 to 10 /-9), and the risk due to cardiac incapacitation should not exceed 10 /-9. Two conclusions flow from this. The first is that the 'crash' rate now being achieved in commercial operations (10 /-10, see above) is at least 10 times better than is required by airworthiness criteria for comparably vital aircraft systems. The second, logically, suggests the possibility of changing existing attitudes toward medical assessment.

These observations and conclusions have been verified and supported for multiple-crew air transport-type flight operations for decades and around the world. But the FAA, closing its eyes to fact and logic, steadfastly has refused to consider any of them in weighing alternatives to the age 60 rule.

A 1969 study coauthored by Federal Air Surgeon Siegel found that, even for general aviation pilots, "the older pilots do not experience a higher accident rate than their younger colleagues." This conclusion was supported by Siegel's observation that, for cardiovascular events, even in the single-pilot, general aviation environment where the pilot's incapacitation - at any stage of flight - is almost certain to be fatal,

Without doubt, were it not for the physical standards regarding repetitive medical certification for airmen, the in-flight incapacitation rate would be considerably higher.

An analysis of the accident record of older general aviation pilots (over 60) for 1965 reveals that this age group has an accident record essentially comparable, and in some cases superior, to that of the younger pilot group. Especially for the private pilot group, the age and accidents were not significantly related.

The International Federation of Air Line Pilots Associations (IFALPA) administered a program of simulated pilot incapacitations to test the effectiveness of "fail-safe" procedures on which they already had been trained. These unannounced experiments were conducted aboard Irish Airlines commercial flights. In each surprise test, one of the pilots would close his eyes and stop functioning. The other pilot, unaware that the incapacitation was staged, had to keep the aircraft flying safely. Test results derived from both simulator exercises and actual line operations demonstrated that pilot incapacitation at any stage of flight in multiple-crew air carrier flight operations did not compromise safety.

A 1978 memorandum report produced by the FAA's Protection and Survival Laboratory (CAMI) covering the years 1971-75 - subsequent to the Orlady and Buley analyses and the development of the UAL Harper and Kidera incapacitation protocols including the two-communication rule - identified 18 instances of in-flight pilot incapacitation in multiple-crew air carrier flight operations (including the death of one captain). None of these caused any accident or aircraft incident.

In 1980 the FAA certificated the DC-9-80 aircraft to operate with a minimum crew of only two pilots (not requiring any third pilot or flight engineer). The Federal Air Regulations require consideration of crew workload and pilot incapacitation in two-pilot aircraft during the certification process. A task force appointed by President Reagan in 1981 confirmed that the new DC-9-80 jetliner did not need a third pilot. The task force report noted, "The 'two-communication' rule is an effective safeguard against subtle pilot incapacitation." The report also took note of the presence of inertial reel (not manual lock) shoulder harnesses. The presidential task force recommended that incapacitation training and procedures (such as developed by Harper and Kidera a decade earlier) be required of all airlines. It also recommended that further study be directed to the design of crew restraint devices that prevent interference with control column movement in case of acute pilot incapacitation. The FAA apparently has not followed either of these recommendations.

A 1992 University of Pennsylvania study of firefighters concluded, regarding public-safety occupations where there is multiple-crewmember backup support: "The risk of experiencing a catastrophic medical event that would compromise public safety is so small as to eliminate the factor in the debate regarding age-based retirement."

The FAA even endorses this concept. In Amendment 67-4, FAA relaxed the requirement for the special issuance of medical certificates for air traffic tower operators because, it declared, there was a qualified back-up operator available. Explaining the change, FAA said:

In general, the air traffic controller is under the close supervision with back-up personnel close at hand, capable of performing his functions in the event he is physically disabled. …. With these considerations in mind, and with the initiation of the new medical program…it is now possible for the Agency to establish a system for issuing waivers, under these controlled conditions, for certain physical defects in ground airmen.

Moreover, the FAA made this change in the "system for issuing waivers, under those controlled conditions" (i.e., with qualified and capable back-up personnel close at hand) without public notice and solicitation of comment.

Since this amendment is procedural in nature and results in providing all certificated air traffic control tower operators an additional benefit (i.e., relaxed eligibility criteria for waivers), notice and public procedure thereon are not required and this amendment may be made effective in less than 30 days after publication.

There is conclusive proof that pilot incapacitation does not cause airline accidents in multiple-crew (i.e., qualified back-up pilot "close at hand") air carrier flight operations. The proof is the factual record, which the agency has refused to acknowledge for decades. The fact of the matter is that - even though pilots have on rare occasions died on the job - not a single air carrier accident has been reported in the literature as caused by pilot incapacitation since the "two-communication" rule and manual-lock shoulder harnesses were widely adopted industry wide in the early 1970s (though not mandated by the FAA). A review of National Transportation Safety Board reports for the years 1970-1989 revealed that no air carrier accidents were attributed to pilot incapacitation (but several were due to pilot inexperience, among them the Air Florida crash at National Airport and Continental at Denver). In other words, it was documented in a scholarly study that no air carrier crash could be blamed on incapacitation since the airlines adopted "fail-safe" systems more than 30 years ago. It is still the undeniable truth today. FAA's claim, asserted for more than 40 years, that the age 60 rule is justified to prevent pilot incapacitation from causing accidents is irrational; the FAA position flies in the face of the fact that there is no causal relationship between pilot incapacitation and airline accidents in the fail-safe, multiple-crew, large-aircraft airline industry - and has not been for well over 30 years.

( II ) ( E ) - - FAA, WHEN DECIDING WHETHER TO GRANT EXEMPTIONS TO THE AGE 60 RULE, HAS FAILED TO CONSIDER THE FACT THAT FAA CONTROLS (PERFORMANCE AND MEDICAL CHECKS) ELIMINATE THE 'FAILING' PILOT BEFORE THE SYSTEM IS PLACED AT RISK.

When a pilot of any age becomes incapacitated for any reason in a multicrew commercial air carrier jet and the other pilot takes over, the "fail-safe" system put in place decades ago in such aircraft precludes accident resulting from the incapacitation. During congressional testimony in 1979, the FAA's Deputy Administrator admitted both the existence and effectiveness of the "fail-safe" system of multiple or back-up pilots in airline operations:

[CONGRESSMAN] BIAGGI: Last question for [FAA Deputy Administrator] Taylor. You heard testimony of the preceding witness who said that in the event of the demise or incapacitation of a pilot…. How would you comment on that observation?

[CONGRESSMAN] BIAGGI: In other words, the pilot has a heart attack. The rest of the crew automatically takes over with no problem; is that factual or would you like to elaborate on that?

Actually, the need to have the backup pilot take command because of incapacitation is rather rare because standard FAA controls (regular performance and medical checks) eliminate pilots regardless of age if they have an increased risk of becoming incapacitated. Even in the realm of general aviation, this systematic protection was acknowledged in a 1969 study coauthored by Federal Air Surgeon Siegel:

Pilot inflight incapacitation due to experiencing a coronary occlusion or a cerebrovascular accident occurs about six times each year [among private pilots] as documented by the reporter of the [NTSB]…. Without doubt, were it not for the physical standards regarding repetitive medical certifications for airmen (Class III medical examination at two-year intervals], the inflight incapacitation and accident rate would be considerably higher.

Nor has the agency ever denied its ability to diagnose illness and/or defects in older individuals. Indeed, during congressional testimony in 1979, Federal Air Surgeon Reighard, when questioned directly, admitted that, in FAA's view, medical diagnostics were the same regardless of age:

[CONGRESSMAN] PEPPER: …. Is it any more impossible to detect a physical incapacity or inability in older people than in younger people?

In the commercial airline industry - where the medical Class I as opposed to Class III certification standards are both more demanding and, at six-month intervals, four times more frequent - an even more rigorous systematic screening out of medically unfit pilots has been acknowledged repeatedly in the FAA's own CAMI literature. A series of these studies provided annual assessments of aviator medical qualifications from 1971 through at least 1988. As noted for 1971:

Observations of the airline pilot group probably come closest to a true reflection of disqualifying disease as is possible to observe. Prescreening by airline companies before employment and FAA 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 non-pilot groups.

The "purging" effect of the FAA's system of medical certification was independently confirmed for air carrier pilots in a 1976 study at the Mayo Clinic. The study estimated that, based on career terminations for all causes, less than half of the entering pilots at one major carrier (TWA) would reach the normal retirement age of 60. And of all the premature departures in one group studied, 30 percent were medically retired.

2. The current level of safety in scheduled passenger air carrier transportation is remarkably high; it is three times better than the safety record of commuter airlines.

3. Proponents of regulatory reform have frequently argued that direct FAA regulation is primarily responsible for the high level of safety. However, since the FAA relies extensively on the air carrier industry in both standard setting and monitoring, industry self regulation is just as much responsible for the level of safety, if not more so.

In 1990, sixteen years after Booze' initial observations on medical disqualifications for airline pilots, FAA/CAMI researchers again expressed identical views on the extraordinary fitness of airline pilots - as they had done repeatedly during the intervening years - and in virtually identical language:

In the same paper, the authors also observed that the annual age-specific denial rate for active airline pilots rose, at an essentially exponential rate, from one denial/year per 1,000 active airline pilots ages 35-39 to 16.2 denials/year per 1,000 active pilots ages 55-59.

The report of the National Institute on Aging observed in 1981 that the "very high level of safety" in commercial air carrier operations appeared to result from, inter alia, "a complex system of performance evaluation by air carriers and the Federal Aviation Administration," and "government and air carrier medical surveillance."

In 1993, the author of the FAA's major statistical analysis of age vs. risk of accident concluded:

Our analysis provided no support for the hypothesis that the pilots of scheduled air carriers had increased accident rates as they neared the age of 60…. [T]he data for all the various groups of pilots were remarkably consistent in showing a modest decrease in accident rate with age…. It was as easy to conclude that the FAA's system improved the composition of the groups over time as it was to conclude that pilots' performance improved with age.

In 1954, the Aero Medical Association's Committee on Pilot Ageing recommended using simulators to evaluate the older pilot. In 1961, the Lovelace Foundation suggested that the agency "begin a program to perfect a quantitative method of evaluating flight simulator performance in highly skilled pilots to serve as a psycho-physiological instrument for validating the significance of a pure medical index." In the 1970s, the FAA Gerathewohl studies -- cited to the GAO in 1989 as a "major study" - validated the use of electronically recorded aircraft movement as an "objective measure" of pilot performance. In the 1980s and 1990s, FAA adopted LOFT (Line Oriented Flight Training, specifically endorsed by the President's Task Force on Crew Complement) and AQP (Advanced Qualification Program) as enhancements to the periodic training and checking of flight crew ability. And in 1980, FAA adopted the most ambitious of its simulator programs - Advanced Simulation.

With Advanced Simulation, the FAA considers the modern, full motion, CGI visual "advanced simulator" so realistic in its replication of actual aircraft flight characteristics that it allows the transitioning airline pilot of any age or experience level to make his or her first flight in the real aircraft on a regularly scheduled flight with paying passengers on board! Indeed, for all levels of pilot performance evaluations, the FAA considers the simulator environment more demanding and revealing of ability - and failure - than the real aircraft.

If the trainee makes a tragic mistake in a simulator, the simulator will dramatically simulate a crash and there is no doubt as to who made the mistake. The pilot's self-esteem, peer pressure, and the pressure of being observed by one's employer and possibly the FAA can exceed the psychological pressure of flying the airplane.

In 1991, Karen Baker, assistant general counsel of the EEOC, with six years experience prosecuting age discrimination cases in aviation-related public safety occupations, including acting as lead counsel in suits against the Boeing Co. and Lockheed Aircraft Corp. involving the age 60 rule, criticized the FAA's claim that it could not assess cognition in pilots over 60 because they suffered no detectable pathology. From her experience in this area of litigation, Ms. Baker was well qualified to observe:

[I]t is unlikely that [active] professional pilots . . . would demonstrate significant cognitive decline as they age. There are four reasons for this. First, to become a pilot, one needs a fairly high level of mental function to begin with. Persons with impaired cognition do not become pilots. . . .

Second, persons with congenital problems of the type that negatively implicate cognition, including hypertension, diabetes, coronary artery disease, and alcoholism, either do not become or do not remain pilots. . . .

Third, pilots are rigorously and continually tested as to their aviation knowledge and "stick and rudder" skills. A pilot who cannot remember a checklist, becomes confused as to landing instructions from ATC, of flies outside tolerances will be detected, and if the condition persists, will have his license pulled. Thus, the system itself eliminates individuals who may well have otherwise undetected cognitive problems.

The fourth reason why loss of cognitive power is not expected in pilots is that they use their mental muscle. Each pilot during his career has had to learn and use rapidly changing technologies, adapt to different airplanes, cope with increasing complexity in air traffic control, interact with innumerable personalities. The job by its definition is a constant learning process, and pilots who do not learn do not continue flying.

In a further criticism of the FAA's claim that it cannot prospectively assess the older pilot's faculties absent detectable pathology, Baker noted that Castelo-Branco, in his study of retired TAP-Air Portugal pilots, had found that among the older (retired) pilots no longer medically qualified, all suffered from conditions diagnosed before their 60th birthday.

Evidence of the effectiveness of screening out pilots who are not up to par was noted in reports by Siegel, Booze, Lane, Chapman, Harper-Kidera, the House Government Operations Committee, Hilton Systems, and the EEOC, among others. FAA regulations require the regular use of high definition, virtual reality simulators, as well as in-flight observation and other monitoring at all times by company dispatchers, a myriad of FAA's own agents, and fellow crew, to determine whether a pilot remains fit and able and his or her performance remains within acceptable parameters. And the FAA itself has conceded - at least to the Congress when asked point-blank - that these techniques work just as well regardless of the age of the pilot.

( II ) ( F ) - - FAA LACKS CREDIBILITY AS A SOURCE OF INFORMATION REGARDING THE TRUE PURPOSE AND EFFECTS OF THE AGE 60 RULE AND ITS POLICY OF NO EXEMPTIONS.

FAA Officials Privately Concede That the Basis for the Rule Is Economics and Scheduling Convenience

The complete lack of credibility of FAA's public assertions that the age rule was based on medical or safety reasons is proven by FAA officials' private statements, now exposed, that the rule was really based on perceived economic factors - and industry management's convenience. The secret true purpose for retaining the mandatory retirement rule has been revealed by former FAA officials themselves and others who were witnesses to FAA officials' private statements, and by an FAA official's private correspondence.

Dr. Frank Austin, while serving as the Federal Air Surgeon, wrote that the real basis for the age 60 rule was economic, not medical. Austin said so in response to a letter he received in November 1984 from a former FAA official, Dr. Stanley R. Mohler, who had served as Chief of the agency's Aeromedical Applications Division. Regarding Mohler's statement, "There is no medical basis for the age 60 rule," Austin wrote: "True in 1984!" Regarding the redundant statement, "Today there is no medical basis for the rule," Austin again wrote: "True." Regarding the statement, "If 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," Austin wrote: "True." There, at the bottom of the page, the FAA's top medical official added: "I believe this & Adm. Engan [the FAA Administrator] 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!) Its [sic] an ECONOMIC issue! Frank."

Dr. Jefferson Koonce has recalled taking part in a March 13, 1986 closed meeting in which FAA officials emphatically stated that the rule was needed simply because of economic interests of the airline industry (which had nothing to do with medical or safety factors of any kind). The meeting, Koonce later wrote, was arranged at the request of U.S. Rep. Edward R. Roybal, Chairman of the House Select Committee on Aging. FAA officials taking part in the secret meeting included Federal Air Surgeon Frank Austin, Deputy Federal Air Surgeon Jon Jordan and, according to Koonce' recollection, Anthony Broderick. The list of attendees also included Dr. T. Franklin Williams, Director of the National Institute on Aging. It was a memorable gathering, as Koonce reported:

At the outset, after the passing of introductory pleasantries, one of the FAA persons flatly stated that we might discuss many things but regardless of what shall transpire they, the FAA, are not going to agree to change its position about this issue (the Age 60 Rule). .... The FAA's statement was a shocking start, and it was no joke!

In the subsequent discussions it was mentioned, by a FAA person, that the removal of the 'Rule' would be quite disruptive to the airlines because the airlines are all set-up for the retirement of pilots at 60 years. This would result in economic problems, manpower concerns, and all sorts of planning havoc. They, FAA and industry, felt that having all of the pilots continue after age 60 would be a great economic problem, and 'When would they retire?'

Dr. Mohler also recalled attending the meeting in Congressman Roybal's office in which the top FAA officials made plain that the age 60 rule had no medical basis but would be enforced simply because they did not want to "burden" the airlines. He recalled that the participants in the closed Capitol Hill meeting included FAA Administrator Donald Engen, Federal Air Surgeon Austin, Deputy Federal Air Surgeon Jordan, Dr. Koonce and NIA Director Williams. Mohler wrote:

Mr. Roybal called the meeting for the purpose of getting a status on how the Age 60 Rule could either have individual exceptions made to it (as the FAA does for myocardial infarction, alcoholism, and other disqualifying conditions), or be eliminated entirely.

The high spots of the discussions included the statement by the FAA attendees that there is no longer a medical basis for the regulation, but that the FAA is reluctant to make exceptions or delete the regulation because FAA personnel do not want to burden the airlines administratively with a new personnel task of integrating the over 60 years of age pilots.

FAA Administrator Quesada originally created the age 60 rule as an act of personal favoritism to reverse the results of labor-management arbitration decisions. The disclosure of the Austin-Mohler correspondence and the secret Capitol Hill discussions expose the fact that the FAA has continued to enforce the age rule just so the airline companies would not be burdened with any administrative costs that may be associated with having to change retirement policies. These revelations of private correspondence prove that FAA's many public assertions about medical or safety reasons for the age 60 rule are completely devoid of credibility.

The FAA also consistently has refused to allow collection of meaningful data that would disprove or tend to disprove the false claim that there is a medical justification for the age 60 rule. The FAA Safety Analysis Division official who provided technical support for Golaszewski's Flight Time Study, and evaluated it upon completion, recognized that it was flawed and declined to accept the study or have FAA publish it.

FAA has refused to acknowledge the valid recalculation of the Flight Time Study data without its distortions, performed first by Dr. David Drachman, and repeatedly by other investigators since. He found that the pilots age 60 and over have lower accident rates, not higher. Drachman, chairman of the neurology department at the University of Massachusetts Medical School, was a teaching fellow at Harvard, Phi Beta Kappa at Columbia, visiting professor at Georgetown and Johns Hopkins, officer of numerous panels, author or co-author of some 300 professional publications, papers and studies, served on the editorial board of five scientific publications and as technical reviewer for five additional scientific publications. "I have performed these analyses, and they do not support a conclusion that pilots age 60 to 69 experience a higher accident rate than their younger cohorts, but support the reverse conclusion instead."

The Golaszewski Flight Time Study's demographic flaws - and their misleading effects - are common knowledge in the scientific community.

Explaining the demographic flaws in the Golaszewski's 1983 paper, Dr. Andreas E. Stuck observed:

Only one study covering the period 1976 to 1980 [Golaszewski (1983)] compared aircraft accident rates of over-60-year-old pilots with those of younger pilots. …. The accident rate of 60 to 69 year-old-pilots with a Class I medical certificate…was found to be two times higher than that of 50 to 59-year-old pilots. [Note: This same false finding appeared in Broach's Report 4 (supra note 145) and was presented to AsMA members.] The comparison is, however, problematic. While the accident rate for 60-69 year old pilots was calculated by the number of accidents in general aviation divided by the number of pilot hours flown in general and small commercial aviation aircraft, the accident rate for 50-59-year-old pilots was calculated differently. In this latter case, in addition to hours flown in general aviation and small commercial aircraft, pilot hours flown in large commercial aircraft were also included in the calculation of the accident rate. This results in an underestimation of the accident rate in 50-59-year-old pilots.

In 1992, Diane Hyland and others analyzed the 1983 Golaszewski study extensively - and critically. Their main criticism, replicating those of Drachman and Stuck, was:

The rarity of accidents involving [medical] Class I pilots strongly suggests that the distribution of such accidents across the various categories will be different…. The Part 121 pilots accumulate a substantial number of flight hours but contribute (proportionately) very few accidents. That is, they contribute substantially to the denominator of the ratio for the accident rate but hardly at all to the numerator. It is likely that this contribution changes as a function of age, so that the apparent effects of age in the Golaszewski data may be an artifact of the way accident rates are computed, i.e., they may reflect differences in flight hours accumulated by Class I pilots rather than differences in the likelihood of accidents.

Edwin Kay, professor of computer science and statistics at Lehigh University, similarly criticized the Golaszewski study:

Combining pilot classes, as done in the Golaszewski analysis, was inappropriate because it produced misleading accident rates. For example, pilots holding Class I medical certificates had relatively fewer accidents and higher flight hours. The accident rate profile for a heterogeneous group was influenced by the proportion of Class I pilots in that group.

Although rejected and publication-refused by the FAA itself upon receipt in 1983, nevertheless the FAA provided the Golaszewski data to Charles Billings, a researcher at NASA-Ames - not for NASA work, but for his use as a private consultant to several aircraft manufacturers then being sued by EEOC over their mandatory retirement policies. Through Billings, this data then appeared and was incorrectly identified as a NASA-Ames work product in a memorandum prepared by staffers in the Congressional Office of Technology Assessment. In assessing this presentation of the Golaszewski data, T. Franklin Williams, Director of the National Institute on Aging, declared:

One third of all reported flight hours for the years underlying the [Golaszewski, a.k.a. Billings, a.k.a. OTA] data were flown in air carrier operations…. No individual over 60 pilots airline flights, and the accident rates for pilots aged 60-69 who hold Class I and II medical certificates(like those also held by airline pilots) appears to increase in the [Golaszewski/Billings/OTA] analyses. However, that apparent increase is a function of the absence of pilots, after age 60, from air carrier operations, the safest type of flying hours.

When investigative journalist Stone Phillips and U.S. Rep. Jim Lightfoot (R-Iowa), on ABC News 20/20, exposed the false and intentionally misleading presentation of data in the Flight Time Study, Golaszewski himself and FAA Associate Administrator Anthony Broderick appeared on the program. Golaszewski and Broderick failed to refute the debunking of the study's finding.

It long has been known by FAA and now is revealed by petitioners, that FAA itself has been aware, ever since it received the Golaszewski study, that it had unacceptable "major data deficiencies" and "other problems," rendering it unsuitable for publication and "questionable at best" in relation to supporting "any position." The FAA's Ken Chin, who provided technical support for the study, indicated in his letter to Samuel D. Woolsey that the Golaszewski study had been discredited upon its delivery and was of no use.

Golaszewski, as project manager, submitted the Final Report, "The Influence of Total Flight Time, Recent Flight Time and Age on Pilot Accident Rates" to Mr. Chin, Safety Analysis Division, FAA Office of Aviation Safety, June 29, 1983. Golaszewski's transmittal letter was on stationery of Acumenics Research and Technology, Inc. of Bethesda, Md.

FAA never has publicly acknowledged the fact that the Golaszewski study was deficient, unreliable, unacceptable and unsuitable for publication, but it was acknowledged in a letter by FAA's Chin to Woolsey. Referring to the Flight Time Study, Chin wrote:

It should be noted that our study is unofficial because it was never formally published by the Federal Aviation Administration....

Under my management and technical direction, the analysts with Aviation Safety and contractor employees of Acumenics Research and technology, Inc., supported Operations Research Branch in the development of the concepts and information relating accident rates and pilot experience. We have not formally accepted this study as a final product because there are major data deficiencies. Other problems with the study have been discussed by experts in the aviation field as well as within my office. ....

Even after the Golaszewski data had been proven false, the FAA continued to use it to promote mandatory retirement of air carrier pilots at age 60. False information intentionally was given to and unwittingly used by two arms of Congress - the Government Accounting Office and the Office of Technology Assessment.

The agency also submitted the Golaszewski data as "fact" to the United States Court of Appeals for the Seventh Circuit in Baker v. FAA. But the Baker court - understanding and accepting the fundamental flaw described by Drachman and affirmed by a myriad of other reviewers -- discerned that the study lacked credibility on its face. Coming to the same conclusions as had Drachman, Stuck, Williams, Koonce, and others, the court said:

Perhaps the Flight Time Study's greatest failing is that the data for pilots under age sixty include millions of relatively safe air carrier miles flown, miles which because of the age sixty rule were unavailable to pilots over sixty. In calculating the accident rate for pilots sixty and older, the Flight Time Study divides the number of general aviation accidents by general aviation flight time, the only category open to this group. But for pilots under age sixty, the study divides the number of general aviation accidents by general aviation flight time and, in addition, air carrier operations flight time. Because miles flown in air carrier operations are nearly accident free, millions of these extra miles are included in the figures for younger pilots but not for older ones, whose accident rate is overstated. Indeed, looking at the Flight Time Study's chart of accident risk for Class I (airline transport) and Class II (commercial) pilots with greater than 5,000 hours total flight time...the jump in accidents at age sixty to sixty-nine from age fifty to fifty-nine simply looks too large to be credible.

Footnote 1 in the opinion of the Seventh Circuit said, inter alia, "Numerous comments of record from various experts, even some from the FAA, state that the study should not be relied on as determinative - - or even probative - - on the question of the continued validity of the age sixty rule." The Baker case did not give rise to the question of whether the Agency's use of the Golaszewski study amounted to intentional misrepresentation because the record did not include evidence that senior Agency officials were aware of the falsity of its findings and used the study anyway for ulterior (economic favoritism, not safety) purposes.

It is evident that FAA officials knowingly used the falsified numbers and graphs not only to deceive the American public, the U.S. Congress and the federal courts, but also to deceive the nation's treaty partners in the international community. The International Civil Aviation Organization, a United Nations affiliated organization, received the invalid and misleading flight safety data from the FAA. Unwittingly, ICAO reproduced the FAA disinformation, and sent it to member states. Graphs falsely representing that pilots age 60 and older had higher accident rates than younger pilots, attributed to the Federal Aviation Administration, Washington, D.C., were published as appendices to a paper published by the ICAO Air Navigation Commission. Because the graphs themselves and the information they conveyed had been so widely repudiated, FAA deception regarding the age 60 rule thus has damaged the credibility of the United States as a member of the community of nations.

The FAA's lack of credibility on the subject of safety arguments for the age 60 rule is demonstrated also by self-contradictory statements FAA has made in domestic and international fora. As we have seen, the FAA often has stated that its continued enforcement of the age 60 rule is based on safety data. The agency has made this assertion in notices in the federal register, briefs in federal court and elsewhere. When the FAA announced in 1995 that the age 60 rule would be applied starting four years later to most part 135 operations, including pilots, it specifically stated that the reason for this decision was safety data. However, when the International Civil Aviation Organization requested such data in a survey of member nations, the FAA - notwithstanding the fact that most part 135 captains were required to hold the same credentials as part 121 captains, and all part 135 pilots (captains included) were allowed to fly - and many did fly - past age 60 - responded that it had never accessed any such data. FAA told ICAO that such data exists but that FAA did not even know whether it was accessible. If FAA's response to the ICAO survey was true, it logically follows that FAA's claim that it based the part 135 rule extension on safety data must have been false. If the FAA had not even determined whether such data was accessible, it could not have based the extension decision on such data as it claimed to have done. It is troubling, to say the least, that the FAA report to ICAO, conceding that such data was available but not accessed, came 14 years after the National Institute on Aging criticized FAA for failing to examine more fully data on older pilots' safety performance. It is evident that FAA intentionally has shut its eyes to the available data while falsely representing to Congress, the courts and the world that its age policy was based on factual data.

The FAA's failure to earn any credibility at all on issues related to the age 60 rule may be partly a result of the inability of the FAA bureaucracy to accept new information and new ideas. This bureaucratic paralysis was illustrated in a 1973 memorandum by the FAA Flights Standards Director, James F. Rudolph. The memorandum said the Flight Standards office would not recommend raising the mandatory pilot retirement age because (a) there was "no new data or information" on safety-related medical evidence, (b) the FAA "has 'stood firm' in the past" on age 60 and been upheld by the courts, (c) it would be "difficult" to file a rule change with the International Civil Aviation Organization "since the ICAO rule was based on the U.S. age 60 rule." The memorandum revealed that the FAA flight standards director had no awareness of or interest in any of the medical and safety data accumulated throughout the history of aviation medicine up to that time. The memorandum rationalized inaction on the basis that having "stood firm" in the past proved to be a legally safe course. That kind of bureaucratic mindset (which says change should not be accepted simply because it has not yet been accepted) is hardly a rational approach to governance. Finally, the memorandum reflected ignorance of the U.S. relationship to ICAO. Senior FAA officials seemed unaware that, under articles 37 and 38 of the ICAO Convention, the United States could change or rescind its age 60 rule any time it chose, and had only to inform the international organization at that time.

The FAA's complete lack of credibility on the safety issue is further demonstrated by contradictions between the agency's actions and its words. FAA officials have alleged that safety is the reason for having the age 60 rule. However, for many years FAA did not bother to enforce the age rule against pilots of foreign air carriers flying into the United States. If safety were the real motivating force behind the FAA's age 60 rule, the agency would have enforced it against pilots of foreign as well as U.S.-based air carriers. The fact that the agency enforced the rule only against domestic air carrier pilots is consistent with the fact that the rule actually has been intended by the agency to serve as an act of purely economic favoritism for U.S. airline managements. FAA did not even begin to enforce the age rule against foreign airlines until it was publicly embarrassed into acting, fifteen years after it could have done so.

The FAA, if it had really thought age was a safety problem, could have started enforcing the age 60 standard against foreign airlines in 1978, under the ICAO rule. After all, airline pilots perform the same job, use the same equipment and fly under the same conditions regardless of whether their employer is based in the United States or abroad. The National Transportation Safety Board, investigating an airliner crash in Suriname in 1989, discovered then that FAA had not been enforcing the age 60 rule against foreign airlines flying into the United States. Six months later, FAA requested that ICAO be asked to require that the date of birth be shown on pilot's licenses, a simple step that could have been taken years earlier to enable consistent enforcement. Almost two years after that, FAA issued a handbook bulletin announcing that, starting in mid-January 1993, foreign airlines would not be allowed to have pilots aged 60 or older flying into the United States. Even then the FAA's actions continued to belie its public posture. While the agency imposed absolutely inflexible enforcement of the age 60 rule on U.S. air carriers (supposedly for safety reasons), it granted waivers to some of the foreign airlines for up to three additional years. These waivers, denied to pilots of U.S.-based air carriers but granted to pilots of some foreign airlines, were issued with no reference made to any safety concerns but rather out of concern for the airlines' scheduling convenience and economic interest.

( III ) - - THE GRANT OF EXEMPTIONS FROM THE AGE 60 RULE, 14 CFR 121.383(c), WILL BE IN THE PUBLIC INTEREST.

The Federal Aviation Administration has authority under 49 USC 44701(f) to grant the exemptions here requested, regulatory exemptions in the public interest.

( III ) ( A ) - - Exempting the Petitioners from 14 CFR 121.383(c) will be in Accord with the Public Interest in Air Safety as Envisioned in 49 USC 40101(a)(1).

The United States Department of Transportation (DOT), inclusive of the FAA, has a duty, under 49 USC 40101(a), to provide for the public interest in safety as the top priority in commercial air operations.

Granting the requests of petitioners who, as here, have met, or will meet, all regularly published medical and performance standards applicable to all pilots would be consistent with the priority of public interest in aviation safety.

Evidence presented in this petition has shown, inter alia: The age 60 rule never has had a safety purpose. From its inception, the rule has been intended as a tool of economic favoritism. The agency willfully has distorted data so as mislead the public and official bodies. The FAA for decades has misrepresented the purpose of the rule, while using disinformation to make it appear that the rule enhances public safety.

( III ) ( B ) - - In View of the Fact That the Rule Has No Safety Basis, the Agency's No-Exemptions Policy Appears to be Inconsistent with the Public Policy, Recognized in 49 USC 40101(a)(4), of Preventing Unreasonable Discrimination.

The age 60 rule has no basis in safety. Discrimination that has no safety basis is inherently unreasonable. Such discrimination is contrary to the public policy of the United States. The Age Discrimination in Employment Act of 1967 declares in its Statement of Findings and Purpose:

Sec. 2. (a) The Congress hereby finds and declares that -
(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from their jobs;
(2) the setting of arbitrary age limits regardless of potential for job performance has become common practice, . . .
(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens the free flow of goods in commerce.

(b) It is therefore the purpose of this Act to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment....

Particularly when inflicted by government itself, unjustified age discrimination is inconsistent with the principles of equal protection and due process. DOT, inclusive of FAA, has a statutory duty to prevent unreasonable discrimination. Nevertheless, it has been the practice of the FAA for the past four decades to follow a no-exemptions policy, meaning that the agency automatically rejects all petitions for exemption to the age 60 rule. The practice of automatically rejecting all petitions for exemption from the age 60 rule is unreasonably discriminatory. The agency has not granted a single exemption request since the rule was promulgated in 1959. Where there is no safety justification, forced retirement at age 60 is unreasonable. Evidence presented in this petition has established that there is in fact no safety basis for this discrimination against pilots in air carrier operations.

Despite the command of Executive Orders to coordinate with the EEOC on its discriminatory policies and practices, the FAA has failed to accommodate requests by United States Equal Employment Opportunities Commission (EEOC) to rescind the age 60 rule.

Petitioners do not aver that all age-based standards and criteria are impermissible - witness age-based increases in blood pressure limits and the requirement for electrocardiograms beginning at age 40 for the first class medical certificate. However, petitioners do charge that the imposition of an arbitrary, chronologic age-based standard - while denying access to independent de novo review (of the practice generally as well as the individual petition) and denying access to "ability to perform" tests as are accorded pilots under age 60 - violates basic concepts of due process and equal protection. FAA's unfounded references to "aging" as a disease to be diagnosed and treated as are diabetes, AIDS, and cancer, are specious at best. These officious pronouncements are more properly recognized as disingenuous straw-men manufactured at the behest of the original proponent of the rule, C.R. Smith; embellished on advice of FAA in-house counsel who recognized the rule was unsupportable on experience or science; and perpetuated by bureaucrats adamant about not wanting to inconvenience their friends in the industry they are responsible for regulating.

Moreover, the United States stands almost alone among major commercial air powers in denial of the rule's discriminatory effects and its enforcement of mandatory age 60 retirement of all airline pilots - including co-pilots. The increasingly widespread practice of other countries that certify major airlines, in allowing fit captains to fly beyond age 59, is consistent with the development of customary international human rights standards disapproving of unreasonable age discrimination where it serves no safety purpose. Recognition that the age 60 rule is not based on safety considerations is manifest in court decisions, statutes and constitutions of other countries and protections afforded by international law through their rejection of an arbitrary age standard. The FAA policy of refusing all exemptions to the mandatory age 60 retirement rule on nothing better than outmoded and discredited "safety" claims is out of step with emergent civil and human rights standards worldwide.

Unlike authorities in other countries, the FAA rigidly enforces the age 60 rule against U.S. airline pilots, in total disregard of the available evidence - both empirical and conceptual.

( III ) ( C ) - - Agency Disinformation Concerning the Age 60 Rule and the Agency's No-Exemptions Policy Contravene Public Policy, Reflected in 49 USC 44701(a)(4), Disfavoring Deception.

Government dissemination of false information is contrary to the public policy of the United States. The U.S. Department of Transportation, inclusive of FAA, has a statutory obligation to prevent, not practice, deceptive methods. Evidence presented in this petition has shown: The agency for decades knowingly has deceived aviators, the public, the press, the Congress, the courts and the international community when it comes to the age 60 rule and the no-exemptions policy. The agency has concealed the more than 40 years of economic and personal favoritism that underlies both the rule and its rigid enforcement. The agency falsely has made it appear that the purpose of these forced retirements is public safety. It appears that intentional disinformation has kept the citizenry from obtaining accurate information about the functioning of the agency - and confused America's treaty partners in the international community. FAA official propaganda has tainted the political process and the judicial process - and tarnished our nation's reputation amongst the ICAO member States. It has harmed the interest of aggrieved persons who would petition for redress. It has harmed the traveling public by depriving passengers of the benefits of the most experienced and demonstrably safest pilots. It has harmed the nation by corrupting governmental processes. It has obstructed the fundamental right of the people and the Fourth Estate to know what the government is up to.

( III ) ( D ) - - Granting Reasonable Requests for Exemption to the Age 60 Rule Will Help Curb Airline Recruiting of Military Pilots, Support the War Against International Terrorism and Protect the National Security and Defense Interest of the Nation, Pursuant to 49 USC 40101(a)(7)(C), (c)(1), (d)(1), and 49 USC 44701(a)(5).

Civilian agencies of government have a duty to administer regulations in a sufficiently responsible manner to help ensure that the nation's defense and security needs will not fall short. The FAA is subject to statutory mandates to take into account the requirements of both national defense and national security. Rigid FAA enforcement of the age 60 rule forces airlines more aggressively to recruit military pilots. Relaxing the FAA's no-exemptions policy would help the armed services, which are unable to replace combat-ready pilots as fast as the airlines hire them away, and which need to hold onto more of their trained pilots, particularly in times of national emergency. This has been a problem in the past and it is likely to be a problem in the future.

The FAA's public position, that "military downsizing" will lessen the impact of the age 60 rule, is unresponsive to the agency's statutory duty. The military is not always downsizing. The nation today finds itself in a state of war, a war against global terror, that demands increased military readiness over the long term.

Karen Keesling, Assistant Secretary for Manpower and Reserve Affairs, U.S. Air Force, testified more than a decade ago: "The military, and most particularly, the Air Force, is the single largest procurer and producer of pilots in the United States, yet we are currently losing 1,000 more pilots a year than we train, a loss counted in billions of dollars of training and experience with a potential to greatly affect our readiness posture."

The age 60 rule, by causing airlines to hire away military pilots at a faster pace, harms U.S. war readiness. The nation's military preparedness is a public policy interest of the highest priority at all times but most particularly in time of war and national emergency. U.S. Sen. John McCain (R-Ariz.) in a Senate hearing told airline executives, "91 percent of your pilots are former military," adding:

"You are responsible for siphoning off a large number of military pilots.... However, the fact is that you are getting $6 million men, according to the Chief of Staff of the Air Force, for a job that requires about a $100,000 education. ...[T]he taxpayers are paying for their education and training to the tune of millions of dollars. ...General Cassidy, Commander-in-Chief of U.S. Transportation in MAC, testified...saying the shortage of pilots is a war-stopper. A war-stopper, I might remind you, means that we cannot fight because of our lack of military pilots."

All Americans have a moral obligation to do what they can to support the current war effort against international terrorism. Having our most experienced, safe airline captains in command of commercial air carrier flights is one of the most effective ways to minimize the danger to the flying public and the national interest in the event of terrorist emergencies in the air.

( III ) ( E ) - - Granting Reasonable Requests for Exemption to the Age 60 Rule Will Help Curb Major Airlines' Recruiting of Pilots from Regional and Charter Lines and Protect the Interest of Small and Rural Communities, Consistently with 49 USC 40101(a)(11).

The age 60 rule has had, and it is likely to have in the future, an adverse impact on retention of pilots needed by regional and charter airlines serving small and rural communities.

Senator McCain, Chairman of the United States Senate Commerce Committee, echoing his well-known concern for shortages in experienced airline pilots, said in year 2000,

For several years I have been concerned about pilot shortages in our armed forces, which can affect our combat readiness. Some of the same factors that influence military pilots [shortages] are now having an impact on certain parts of the private sector. A strong economy...lead[s] to record numbers of pilots being hired by the airline industry. Just as generous pay scales and benefits of the major airlines have attracted pilots out of the military, smaller carriers are losing flight crews to the big players in the industry.

But the supply of qualified pilots has been negatively impacted by the fact that there are now fewer ex-military pilots on the market. .... Airline expansion has been traditionally supported by large numbers of ex-military pilots....[S]maller and rural communities [are served by]...[r]egional airlines and on-demand operators...an essential transportation link for many areas of the country.

Linda Barker, Chairperson of the National Air Transportation Association, testified:

The uncertainty over whether your pilots employed today will be there tomorrow is stifling many air charter operators from expanding their services.... This disproportionately impacts on the less populated areas of the country that receive little airline service.

The shortage of pilots becomes critical when you consider the need for medical access provided by [air] emergency medical services that may be the only link for smaller communities to medical specialists. The shortage threatens the expansion of medical services to smaller and rural communities. ....

Commerce and the economic viability of communities are likewise dependent upon access to air transportation.

...[A]llowing pilots to continue working for an airline past 60 would decrease the demand for new pilots. Likewise, it would provide for these pilots with thousands of hours of accumulated flight time experience to continue serving the traveling public.

The availability of air-dependent medical services in every American community is a matter of heightened urgency because of the ongoing threat of terrorist attack.

Because of circumstances following the terrorist attacks of September 11, 2001, there has been a significant decline in the large numbers of non-citizens enrolled in civilian U.S. flight training schools. This trend will have a tendency to depress the supply of newly qualified pilots in the United States. Over time, the resultant supply-demand curve in the employment market for pilots is likely to make it even more difficult for regional and charter airlines to provide reliable, regularly scheduled service to rural and small communities across America.

( III ) ( F ) - - Granting Reasonable Requests for Exemption to the Age 60 Rule Will Strengthen the Competitive Position of American Air Carriers Toward Equality with Foreign Carriers.

The United States Department of Transportation (DOT), inclusive of the FAA, has a duty, under 49 USC 40101(a)(6)(B), (a)(7)(A), (a)(15), to provide for the public interest in strengthening the competitive position of U.S. air carriers in the international marketplace. As the revelations of the recent ICAO surveys show an overwhelming majority of foreign States - including those of the European Community, the largest and most aggressive of America's competitors in commercial aviation - are abandoning en masse even the more limited (captains only) international version of the age 60 concept. While American ability to enforce the international rule on captains (only) in U.S. airspace mediates the imbalance in the economic impact of the age 60 rule for transportation to and from the U.S. (shorter working life, replacement training costs, etc.), the favor is not returned by the foreign competitors on their own turf. FAA's rigid enforcement of this "arbitrary, overly broad and outmoded presumption, smelling of age discrimination," the age 60 rule and no-exemption policy harms the nation's interest. The FAA has an affirmative statutory duty, at long last, to abandon its no-exemption policy and to grant the exemptions here requested.

The history of the age 60 rule reveals that it never had a safety purpose but rather has been a tool of economic favoritism. This misguided policy is the result of the agency's unseemly close ties to elements within the industry it is charged with regulating.

Congress has given the FAA law to apply, indicated congressional intent to circumscribe agency discretion and provided meaningful standards for defining the limits of that discretion. The agency thus far has failed to perform its statutory duty to gather and take into account empirical evidence regarding the safety and public interest factors that are supposed to determine exemption decisions.

When studies by Orlady, Buley, Lane, Chapman, Harper and Kidera, Bruggink, Drachman, Stuck, Kay, and others challenged the supposed basis for the rule, and the international community increasingly moved away from the rule on substantive grounds, and the NIA panel found that there was no medical basis for the rule, certainly FAA was on notice that the purported safety rationale for the rule was dubious at best. Even at the strenuous and explicit urging of a congressionally mandated review by an impeccable panel of aviation experts, the agency neglected its duty - both statutory and moral - to honestly and thoroughly examine the validity of the rule. Moreover, FAA's loading of the Goddard report, suppressing of the Mohler-Austin revelations, misrepresenting its disastrous Georgetown debacle to the Congress and GAO, and the Booze data to the NIA panel, then manufacturing and misrepresenting the Golaszewski and Broach studies, presenting inappropriately manufactured accident data to the public and official bodies - both domestic and international - as "the best scientific evidence available," add up to bureaucratic misconduct preventing the agency from meeting its statutory obligations. It is an irrational rule, harming that which it is supposed to help. The American people, their elected representatives, the courts and the world at large have been too long deceived by FAA's misrepresentations on the age 60 issue. It is time for this fraud to end.

Considering the public interest factors that FAA has a statutory duty to consider, the agency should grant the exemptions here requested.

Note: Regarding Whether FAA May Grant the Exemptions Requested Here Without Prior Notice in the Federal Register

Although rigidly enforced for more than 40 years, the FAA's "no-exemptions" policy is an informal, unpublished practice that never has been institutionalized through either formal or informal rulemaking. Thus, a formal process to change this informal, unpublished policy to allow for the grant of the requested exemptions, including notice and comment, is not only unnecessary, it would be improper. Moreover, as the FAA previously has practiced and publicly affirmed the relaxation for the grant of waivers, such as requested here, without prior public notice and comment. Reference is made to the relaxation of waiver requirements as set forth in Amendment 67-4. In that amendment, waiver requirements were relaxed for medical certification standards for air traffic control tower operators. In that instance, the FAA relaxed the eligibility requirements of the grant of 2nd class medical certificates for air traffic controllers where (1) there was a recognized safety implication, but (2) there was a qualified back-up person available to take over the failed operator's duties in case of incapacitation, and (3) all affected individuals received an added benefit equally. Similarly, but less critically here, aviators subject to the age 60 rule (commercial pilots with commercial ATP license and Class I or Class II medical certificate) seek a relaxation of informal exemption criteria - departure from the no-exemptions policy - upon a realization that (1) there is no safety consequence involved, (2) there is 100 percent back-up for every commercial pilot subject to the age 60 rule, and (3) all affected aviators will be eligible to receive the benefit equally. Thus, FAA's relaxation of the no-exemption policy for pilots subject to the age 60 rule, like the procedure in Amendment 67-4 for air traffic controllers, is merely procedural in nature; therefore prior notice and public comment thereon are not required. The exemptions here requested thus may be granted now and become effective within 30 days.

However, if the FAA decides not to grant the present petitioners' request without prior notice and public comment, the following summary of this petition is intended for publication in the Federal Register:

Ten pilots around age 60 have requested exemption from the age 60 rule, 14 C.F.R. 121.383(c). These exemptions will not harm safety, because the rule has nothing to do with safety. FAA officials have misrepresented the rule's purpose and effect. The Administrator created the rule as a personal favor for an airline executive who had lost labor disputes over an airline retirement policy. The FAA rigidly has enforced the rule as a favor for airline executives who mistakenly believe that exemptions would impose undue cost and inconvenience. The FAA has obstructed discovery of relevant evidence. Thanks to "fail safe" procedures, pilot incapacitation (which is not age-related anyway) poses no threat to safety in multicrew air carrier operations. FAA has failed to consider the fact that regular pilot performance and medical checks prevent risk. Exemptions will remedy unreasonable discrimination that has no safety basis; help curb major airline recruiting of pilots needed by smaller airlines and the Armed Forces; and aid the war against international terrorism by enabling the most experienced, safe pilots available to be in command of civilian airliners at all times.

July 10, 2002 __________________________
San Francisco, California ANTHONY P. X. BOTHWELL
Attorney for Petitioners