Airline Age 60 Rule

Background

In 1959, the Federal Aviation Administration (FAA) issued the Airline Age 60 rule subjecting all commercial airline pilots-or those pilots who fly planes with more than thirty-five passengers-to mandatory retirement at age sixty as a safety precaution. Under the rule, pilots who wish to fly past age sixty are prevented from doing so regardless of their health, experience, and seniority-all of which determines their salary and eligibility for pension benefits. More recently, the first Clinton administration streamlined FAA regulations so that all safety rules apply equally to both commercial and commuter pilots-or those pilots who fly more than eight passengers as an interstate commercial activity. Consequently, all professional pilots licensed to carry passengers for money are now made to retire at age sixty. Currently, there is legislation in Congress to increase the retirement age.

Pilots have long challenged the regulation in Congress and the courts as an arbitrary and discriminatory limit on their right to fly for a living. The FAA has remained reluctant to change its decision. In the first decade after the rule's promulgation, the Air Line Pilots Association (ALPA), the national union that represents most commercial pilots, also challenged the rule on behalf of its members. At the time, ALPA represented mostly senior Captains and First Officers. Between 1960 and 1979, the union filed, and lost, eight major lawsuits against the FAA that pleaded to either overturn the regulation or to exempt certain classes of pilots from the rule. However, ALPA did convince Congress to lower the eligibility age for Social Security from sixty-three to sixty for pilots who were made to retire. After this lobbying success and the realization that the FAA would not increase the retirement age, ALPA changed its position and officially supported the rule, citing safety reasons. Since that time, independent pilot unions and ad hoc groups of aging and forcibly retired pilots have continued the effort to change the rule. The legal and legislative challenges have been unsuccessful because courts have found that the FAA maintains the statutory authority to make all final decisions about air traffic safety and because members of Congress tend to be hesitant to question FAA's safety rules.

Opposition to the Airline Age 60 rule has gained momentum in the aftermath of the Clinton administration's massive regulatory overhaul at the FAA. According to one lobbyist familiar with the rule, the current legislative and legal battles are "the most active and most aggressive campaign to change it." At the same time in the early- and mid-1990s, the airline industry was experiencing a pilot shortage. To fill the void, commercial airlines sought a greater percentage of new employees from commuter lines with attractive salaries, better flight schedules, and more reliable pension plans. Thus, the commercial pilot shortage extended to the commuter flight industry, which is most heavily concentrated in rural areas, the Pacific Northwest, and Alaska. Therefore, commuter airlines were particularly impacted because the newly applied retirement rule stripped the industry of a number of older pilots and because the massive commercial pilot shortage depleted commuter airlines of younger pilots. The subsequent mobilzation of commuter airlines and older pilots led Senator Frank Murkowski (R-AK) to seek relief by introducing legislation to increase the pilot retirement age to sixty-five in the 106th Congress. The Senate Commerce Committee has since held two hearings on the FAA rule and reported an amended bill to the Senate early in the 107th Congress. The amended legislation, produced by the then-Republican controlled Commerce Committee, raised the mandatory retirement age to sixty-three and added a 'pairing' provision to require that any pilot flying past age sixty be accompanied by a co-pilot under sixty.

Additionally, one group of retired pilots has an outstanding lawsuit that challenges the Airline Age 60 rule as an abuse of authoritative discretion and to exempt them from its requirements. The Professional Pilots Federation (PPF) appealed the decision in Yetman v. Garvey to the 7th US Circuit Court of Appeals. Lawyers for both the PPF and the FAA have presented their arguments and await a decision.

Participants

The main proponents to increase the retirement age include ad hoc groups of pilots such as Pilots Against Age Discrimination (PAAD), the Organization of Black Airline Pilots, and PPF, as well as independent unions such as Southwest Pilots Association and the Allied Pilots Association that represents American Airlines pilots. These groups tend to be fueled mostly by older pilots who wish to protect their employment and retirement benefits. In addition, the American Association of Retired Persons (AARP) and the Equal Employment Opportunity Commission (EEOC) have weighed into the debate to argue that mandatory early retirement is age discrimination because it is not based on health, merit, or flight experience. These groups have also sought out the professional medical opinion of Dr. Robin Wilkening, professor at the Johns Hopkins University Bloomberg School of Public Health, analyzed data on aging pilots to conclude that there is insufficient evidence to argue flying over the age of 60 is a health and safety hazard to pilots and passengers. Also, commuter airlines are pursuing an increased retirement age to relieve their pilot shortages.

The opponents of raising the Airline Age 60 rule demonstrate that indeed politics makes for strange bedfellows. The AFL-CIO affiliated ALPA and the major commercial airlines-represented by their trade association, the American Transport Association-support the Airline Age 60 rule. ALPA supports the status quo because it agrees with the FAA's safety assessment and because many of its younger members wish to pursue the more senior positions vacated by retired pilots. The airline companies have remained conspicuously quiet during the debate over the rule. Although they have not been extremely active or vocal on the issue, the commercial airlines will clearly benefit from the reduced salary burden resulting from early retirements. Also, the commuter airline industry and Senator Frank Murkowski have sought to increase the retirement age to improve company's ability to maintain and hire employees. Finally, the FAA has consistently stood by their position that maintaining the rule is a matter of air traffic safety.

Arguments/Impediments

Proponents:

The policy objective is to increase the mandatory retirement age for commercial and commuter pilots. One both sides of the Airline Age 60 issue, all arguments lead to one common, ubiquitous claim-that safety is the most important goal. The aging pilots' groups develop the safety argument by claiming that the FAA's medical evidence is inconclusive. They claim that, all else equal, older pilots are more experienced and therefore safer pilots as long as they are healthy. The critical question of a pilot's competency, then, should be a testable medical standard rather than an arbitrary age ceiling. Other proponents, especially Senator Murkowski and commuter airlines, extend the health and safety argument to the pilot shortage in the country. While opponents claim that the shortage is not as extensive as purported, one advocate for Murkowski's bill contends, "What we do believe we have, though, is a shortage of experienced pilots." So while both proponents are both seeking a rule change for its particular benefits, their argument is based on the need for increased air traffic safety.

Second, proponents highlight the Airline Age 60 rule an economic issue to support their claims of improving safety. Older pilots argue that the Airline Age 60 rule amounts to unfair age discrimination. Consequently, many pilots lose salary earning potential, employer-based health insurance, and the opportunity to become fully vested in company pension plans. In his testimony before the Senate Commerce Subcommittee on Aviation, advocate Captain Paul Emens, a Southwest Airlines pilot and PAAD chairman, states succinctly, "Younger pilots' careers advanced. Older pilots' pensions secured. That is the foundation upon which opposition to changing the Age 60 Rule rests: AARP, a group that represents the interests of all retirement age adults, and the EEOC, an independent government commission that responds to complaints of civil rights violations in the workplace, substantiated the age discrimination argument by claiming it is an arbitrary criterion for pilot fitness. Proponents often cite historical flight into space by John Glenn, who was well past age sixty, as evidence that age is subjective. Finally, Senator Murkowski is motivated by his desire to reduce the cost of commuter airline travel and to maintain the strength of the airline companies that serve his constituents.

Both the aging pilots and the commuter airline proponents claim that the single biggest challenge to is policymakers' unwillingness to change the retirement age in the direction of increased risk. Because the Airline Age 60 rule is a matter of regulatory law, the change could conceivably occur in any of a number of venues. The FAA, who is charged by Congress to keep the airways safe, has little incentive to unilaterally increase the age for fear that an accident involving an older pilot may occur and blame will be placed on the agency. Second, members of Congress are similarly wary of questioning the FAA because, as one advocate puts it, "Members of Congress are very hesitant in many respects to sign on to a bill, thinking, 'Oh my God, if a plane goes down with a pilot over 60, it's going to be our fault.' Nobody wants the blame." Courts, as well, have consistently based their decisions to uphold the FAA rule citing that Congress has clearly authorized the agency to determine all matters dealing with airline safety. This impediment to changing the status quo is summarized nicely by an attorney familiar with the issue, "It's an FAA issue and whatever they say, goes." The proponents of the Murkowski bill also cite ALPA's political and lobbying prowess as an impediment that is very difficult to overcome. With notable exceptions such as co-sponsor Senator Diane Feinstein (D-CA) and aging issues advocates Senators John Breaux (D-LA) and John Kerrey (D-MA), proponents find that Democrat senators are sympathetic to ALPA's argument about protecting workers' rights. ALPA's membership, which consists mostly of younger pilots who will likely reach pension-vesting 20 years of service before age 60, do not want an increase in the mandatory retirement age because it would shrink their pooled investment in the airline company's pension trust fund and it would jeopardize their special tax code penalty-exemptions for cashing in on pensions before age 65. The combination of this economic argument and general support for labor among Democrats and the FAA's claim of safety make it difficult to garner broad support in Congress."

Opponents:

Like their counterparts on the Airline Age 60 issue, opponents to the Murkowski bill and other efforts to change the retirement age anchor their position on the safety issue. The FAA, supported by their team of flight surgeons, insists that no reliable test for the erosion cognitive skills exists to warrant a rule change. Opponents contend that medical screenings are not yet technologically sophisticated to dependably predict a pilot's cognitive condition, regardless of age. Otherwise, the agency will err on the side of caution and continue to abide by its decision. ALPA also cites the safety issue, claiming that they are less concerned about the economics behind the rule, but rather that they are attentive to the health and safety of their member-pilots and of airline passengers.

Although the opponents of changing the rule have historically been successful, they view the proponents' momentum as a very serious threat to their position. Particularly, proponents' age discrimination complaint presents the FAA and ALPA with a difficult challenge. The response that the rule is not arbitrary is twofold: first, age of 60 was originally adopted as a reasonable age to expect pilot health to be a risk; and second, that any age, including 63 and 65 as proposed in various legislative proposals could be similarly claimed to be arbitrary. In addition, ALPA must react to the allegation that the union's position is actually based on economics, not safety. Proponents claim that ALPA's support of the rule is illegitimate because it only benefits the salary and benefit interests of younger pilots who will likely remain dues-paying members for many years. Ultimately, ALPA argues that the combination of the Airline age 60 rule and special tax and Social Security benefits strikes the best policy balance for all of its members.

Venues

The FAA, an agency under the Department of Transportation, was created in 1958 to centralize civil and military air navigation and traffic controls and to create and enforce flight safety standards. The congressional committees with primary jurisdiction over the FAA generally and the Airline Age 60 rule specifically are the Senate Commerce, Science, and Transportation and the House Transportation and Infrastructure Committees. Lawsuits involving the rule have always been filed in federal district courts as complaints against the FAA Administrator.

Lobbying Activities and Tactics

Pilots affected by the Airline Age 60 have established a number of small, single-issue membership organizations to represent them before the FAA, Congress, and the courts. The two primary groups, PAAD and PPF, have divided the lobbying and legal functions among themselves. PAAD coordinates a grassroots campaign to convince pilots to contact their members of Congress and has testified at both Senate Commerce Committee hearings and the PPF has spearheaded the most recent legal challenge. These groups have decided to fight fire with fire and hire their own medical expert to refute the FAA. Additionally, the aging pilots groups took advantage of the pilot shortage and reached out to ailing commuter airlines to convince Senator Murkowski to introduce legislation. Senator Murkowski has also taken an active role in recruiting support among colleagues.

On the other side, ALPA has been countermobilized in recent years to protect the status quo of their policy positions. With a permanent lobbying staff in Washington and a senior lobbyist dedicated to the issue, ALPA has met personally with staff from nearly all members of the relevant congressional committees, sent letters to all 100 senators, and kept in contact with pro-labor Democrats to track developments. Additionally, the union uses its monthly newsletter, website, and email database to contact members for grassroots support.