http://www.aviationweek.com/aw/gener...news/AGE061009.

Pilots caught in a time warp when Congress acted in November 2007 to extend the mandatory retirement age to 65 have asked the Ninth Circuit Court of Appeals in San Francisco to give them a day in court.

These pilots--225 of whom are part of the class action suit--had recently turned 60 when the law that raised the retirement age of pilots from 60 to 65 went into effect, and believe they should have been allowed to resume flying. A three-judge panel is expected to answer their appeal in six to eight weeks after hearing oral arguments June 9 in the case (Oksner v. Blakey).

The pilots, led by former Southwest Airlines pilot Michael Oksner, say Congress violated the 14th Amendment's equal protection clause when it wrote the law, and they should be allowed to fly until they turn 65.

The case is expected to turn on whether the judges think the pilots have a legal complaint or an administrative one. Congress put an age 60 cutoff limit on who among professional pilots could remain in service when President George W. Bush signed an extension of the mandatory retirement age to 65. He signed the law in December 2007.

US Attorney Edward Himmelfarb said it is at Congress' discretion to enact such a provision.

Many of the plaintiffs have found work outside commercial passenger services, such as former United 747-400 pilot James Sweller of Denver, now 62, who has been training UPS pilots for Boeing's Alteon training unit. Sweller had been a 747 pilot flying from San Francisco on routes to Shanghai, Sydney and Melbourne when he was forced to retire. "I love to fly," he says, adding as long as he can pass his physicals he sees no reason to stop into his 70s.
San Francisco attorney Anthony Bothwell, who specializes in age discrimination issues, said the original decision to force mandatory retirement at age 60 was instituted by the FAA as an "economic favor" for airline executives without any medical evidence to support it.

Congress accepted that point in overturning the age 60 limit. When the pilots sought to overturn the provision of the law that blanked out pilots aged 60-65 from being reinstated, they were denied a trial. They appealed that decision in hopes the Appeals Court would order the lower court to hear their case.
It's not clear that the issue of the original cutoff date will play a role in the appellate court's reasoning since Congress has already overturned it. Instead, questioning by the justices indicates they are interested in whether the plaintiffs can seek relief under the Administrative Procedures Act.
They also questioned why the case was brought in California instead of Washington where the FAA is located.

Photo credit: Chicago Dept. of Aviation

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