AGE 60 CAP UPDATE

Dear Plaintiff,

       We now wait some unknown period for the court to act on the written documents that comprise the Class Action Project case record.  The FAA hopes for a dismissal, we pray for a friendly decision that remands our case back to the lower court so that we can proceed with pre-trial steps including deposition of witnesses.  I’ve exchanged some emails with Tony asking for explanations of the arguments that surround this stage of our efforts.  The following are excepts from Tony’s replies:

     To give you an idea of the time and effort expended over this past month Tony writes; “I wrote the legal arguments, which all members of the team reviewed.  Rey and Myron gave helpful ideas on editing and emphasis.  Mark reorganized the text to follow Rey's editorial suggestions and to ensure conformance with the Federal Rules of Civil Procedure and the Ninth Circuit rules--including preparation of table of contents, table of authorities, and certificate of mailing.  Hazard and Chopin were consulted.  Cindy [Tony’s legal assistant] also played an important role on this reply brief.  She proofread, copyread, aided my liaison with Mark, watched timelines, oversaw the printing and binding operation, and made sure we got to the right court clerk's office on time.  We believe we presented some good, meritorious arguments and have provided the Circuit Court with a sound legal basis on which to order remand to the District Court so that this case can go forward toward trial.  Your input and leadership on this have been outstanding.”

In other messages, Tony wrote:

     “‘Declaratory relief’ in a constitutional case is lawyer talk for a decision by the judge that says the regulation being challenged (e.g., the age 60 rule) is in fact unconstitutional.  ‘Injunctive relief’ means an order by the court telling the defendants to do or not do something (e.g., to stop enforcing an unconstitutional age rule).  At this point, we don’t need an injunction to stop enforcement of the age 60 rule, for the obvious reason that an act of Congress already has ended the age rule.  Therefore we don’t need a judge to make a declaratory judgment finding the rule unconstitutional.  Instead of letting a judge decide the crucial question, we want to have a jury decide whether there was any medical, safety, or economic basis, or any possible rational basis for the age rule.  If there was no possible rational basis, the rule’s unconstitutionality will be established.”

     “’Bivens action’ is lawyer talk for a lawsuit that seeks monetary damages against past or present federal government officials for violating a person's rights under the U.S. Constitution.  We argue that the individual defendants named in our case violated the equal protection of the laws when they enforced the age 60 rule.  The Fifth Amendment of the Constitution says the federal government may not interfere with ‘due process’ rights.  The Supreme Court has long interpreted Fifth Amendment due process to include the principle of equal protection of the laws.  Equal protection is violated if a government rule or practice discriminates on the basis of age without having a ‘rational basis’ for doing so.  We have made the legal argument that the rational basis test was not met because the FAA fraudulently misrepresented the age 60 rule as having a medical or safety basis; and because the Age 60 rule, contrary to its stated purpose, actually made flying less safe; and because the Age 60 rule actually harmed the economic interest of the airline industry for which FAA officials secretly thought they were doing some economic favoritism.  We have presented legal arguments showing that our plaintiffs, the pilots, and all older Part 121 pilots in a similar situation, have a right to bring a Bivens action because Congress has not allowed them another way to remedy the wrong that was done to the pilots.
    "’Federal Tort Claim’ (FTCA) is lawyer talk referring to a different part of our case, seeking monetary damages against the federal government itself.  This type of case is harder to win in practice, but we have again relied on the evidence of FAA fraud, and the fact that all past attempts by pilots to obtain administrative remedies from the FAA have been denied.
    “Our strategy is aimed at trying to get the case sent back to the U.S. District Court where we want to be allowed argue the case before a jury.  There are multiple legal hoops to go through, but we ultimately want a jury to decide whether the FAA officials in fact misrepresented the purposes and effects of the age 60 rule, and to decide what monetary damages should be paid by the government as well as by the named past and present officials of the FAA.  We want the District Court to certify this case as a ‘class action’ on behalf of pilots who lost income because they were, against their express wishes, removed from their positions by the enforcers of the age 60 rule. [this is a reminder that the CAP represents part 121 pilots who can demonstrate they would’ve worked past 60, not every retired pilot. Refer to the “Overview” tab on the website for the specifics. Mick]
    Right now we are awaiting the a date for our hearing before the U.S. Court of Appeals for the Ninth Circuit here in San Francisco.  Our reply brief filed July 14, and our opening brief filed earlier, have provided the legal basis on which the Circuit Court can remand the case to the US District Court, the trial court.”

On Monday, Tony commented:
   “The brief didn't say so, of course, but in a way I felt as if we were filing it today in memory of Sam Woolsey.  Surrounded by Sam's family and friends at his memorial service at the Masonic Center in Pleasanton Friday night, I said impromptu, ‘Sam was my law school classmate, my mentor, my friend.  Although he did not seek the limelight, I contend that he was the most influential advocate for pilots who were ready, willing and able to keep flying beyond age 59.  The evidence Sam developed and the arguments he developed were presented to the Supreme Court.  The arguments he developed were taken up by others and persuaded the head of the Federal Aviation Administration to publicly admit that there never was any valid basis for the age 60 retirement rule.  Sam's arguments ultimately persuaded Congress and the President to end the age 60 rule; it was an imperfect remedy in some ways, but that particular rule ended, and I contend it was because of Sam's efforts.  I understand that most pilots don't like to fly into O'Hare because of the weather and the traffic.  But Sam always bid for those flights because he loved the challenge.  He loved to fly those big planes.’  Sam at the time of his death of course was the technical consultant to our case. [Sam was the main source for the PPF’s Butler vs FAA case filing, 2004, which indirectly has evolved into the Class Action Project.  The Butler filing made public the enormous amount of evidence that Sam had accumulated, and was used by many of us to argue on Capitol Hill for change. Mick] 
     At his memorial service, his daughter said that Sam had been "on standby" for the Bay of Pigs, and later flew in the ‘missing man formation’ for President Kennedy.  At Sam's service, they played a CD of Frank Sanatra's ‘I did It My Way’."
TONY

     (Mick) What I find most frustrating is that the validity of the Rule is not the issue, per se, at this juncture.  The FAA is using every instrument in their toolbox to avoid going to court for the trial of our case.  This focuses the arguments on our, the CAP, right to sue the Agency, officials of the Agency, and the Federal Government for damages.  FAA lawyers cite cases they construe to mean we’re not eligible to be in court, we counter that their cases do not apply in the “instant” or “present” case, and cite cases that show we do have a right to have our case heard in court on the merits.  We also argue that the lower, federal District Court, did not provide us the opportunity to respond to last minute arguments raised by the Defendants, a key reason we appealed.  If you take the time to read both the FAA filing and our recent rebuttal you should get a feel for the debate, although the legalese is difficult to sort out by the untrained mind, like mine for instance.

     As I stated in my opening, we now wait some unspecified time for the court to review all the inputs and respond with their course of action.  Be patient, stay the course.

Regards,

Mickey Oksner


check it out:  http://www.age60cap.com/