APAAD and the July 13, 2008
APAAD’s goal is to protect your interests through ensuring that the H.R. 4343, the Fair Treatment for Experienced Pilots Act (Public Law 110-135) is not overturned in its entirety.
July 13, 2008
On July 2, 2008 APAAD submitted a request to file an Amicus Curiae brief to the DC Court of Appeals. On July 8th APAAD followed up with the full Amicus Curiae brief.
APAAD’s goal is to protect your interests through ensuring that the H.R. 4343, the Fair Treatment for Experienced Pilots Act (Public Law 110-135) is not overturned in its entirety.
I was remiss in not being more specific re funding.
We had hoped to wrap up our activities once and for all. We wanted to take Gary out of the business of juggling money and allow him to concentrate on his family and flying business. The remaining funds being relatively meager in amount, we closed the Fifth Third Bank account.
The lawsuit with its wording and focus on a constitutional challenge (and resultant possibility of the law being overturned) has forced us to change our calculations.
The first check to the attorney was a $1000 retainer. The final tally is not in yet but it looks like we need to raise some $10,000+.
I'm hunkered down and healing in upstate New York. The old Rockville address will be vacated by mid August (moving to Virginia Beach), so that address is essentially defunct.
If you wish to contribute for attorney fees re the Amicus brief, please send those contributions to:
Paul Emens
4284 Fairview Road
Castile, New York 14427
Any remaining funds when the dust settles will, as was the case earlier, be given to the Zenner Grandchildren Trust.
While SPC leadership has repeatedly stated that it has no intention of overturning the present age law, the fact remains that the SPC’s own attorney, Professor Turley, has repeatedly said otherwise. One need go no further than the SPC website and read their Press Release of May 22nd. Highlighted in bold face print, is the following: “Commenting on the status of the litigation, Professor Turley said: “We are challenging the constitutionality of the 2007 law. If the pilots are successful, the law will be declared null and void.” This is not the first time he has used those words.
‘Hoping’ that the law is not overturned is tantamount to being lost in denial. Spin it any way you wish, one cannot negate or diffuse the threat represented by the words “null and void”. Your career, and the work of over a decade, is at risk.
One SPC email to a concerned APAAD pilot suggested that he “Read the brief”; that there was no intent to overturn the rule. That is true – up to a point. The thrust of the SPC brief is to attack the various provisions that are objectionable, such as those dealing with the ability to seek legal redress or retroactivity. However, the SPC lawsuit also challenges “the constitutionality of the 2007 law”. A judge could, without a complete understanding of the various viewpoints of the age fight, decide to overturn the law in its entirety.
We doubt Professor Turley is careless with his words. In repeatedly using the words “null and void”, we suspect he is ensuring everyone understands that the possibility exists that the law could be overturned. What is surprising is the number of pilots who find a way to ignore/justify/deny that warning.
We have been forewarned and, as they say, “Forewarned is forearmed.”
APAAD’s leadership is unanimous in the need to address this issue. We have consulted with no less than 5 attorneys. The unanimous consensus is that the threat of the law being overturned is relatively low. However, the unanimous consensus is also that the threat does exist. Here’s an analogy: You’re sitting at the bottom of a hill and look up to see a large boulder rolling down the hill. The ground is uneven and the boulder could go any which-way, so the likelihood of the boulder squashing you is low. But do you just sit there and hope/assume you aren’t squashed? Or do you take action? Most of us would choose to take action! In our case, our brief is intended to keep us from being squashed. We have no choice but to take action.
Our attorney (Doug Fuller of the Washington, DC law firm Birch, Horton, Bittner and Cherot) knows Professor Turley very well and has spoken to both Professor Turley and the FAA attorneys. There was no expressed opposition to APAAD’s request to file or the content of its brief.
APAAD’s brief addresses the validity of “separability”, wherein the court could remove objectionable provisions without overturning the law as a whole. We have provided the court some background and context as to how and why the law evolved, as well as educated the court as to possible ramifications if the law were overturned causing, in the words of Professor Turley, “chaos and confusion” in the industry.
Late last week, we learned that ALPA is moving to file an Amicus Curiae of its own. As protocol demands (and as APAAD did with the SPC and FAA), ALPA inquired if APAAD had any objection to its filing a brief. In truth, we think ALPA should go pound sand. However, it seems that the judge might look askance at parties who are oppositional. I directed our attorney to confer with Mr. Turley. APAAD will align its position with the SPC with regard to ALPA’s proposed brief filing.
In closing, APAAD rejects the idea, as expressed by the SPC, that the old Age 60 Rule is “dead”. We do not believe, based on our time in Congress and our continued contacts with its members, that Congress will pass a law allowing retro and legal redress. There is no support on the Hill for a legislative solution. Rather, we think Congress will punt to the FAA, an institution in turmoil. The FAA has made little progress in its age NPRM and its regs are not aligned with the new age law. Were the law to be overturned, upon what regulation and on whose authority would we continue to fly past 60? Would exemptions be granted? For whom and what ages? Chaos and confusion could, indeed, be the order of the day. The consequence could be catastrophic to many thousands of pilots.
Please don’t read anything personal into this course of action. It has nothing to do with personalities. Former APAAD members are listed as parties to the SPC suit, members who worked hard for an age change and didn’t make the cut solely based on date-of-birth. However there are facets of SPC actions and its lawsuit that potentially could do APAAD’s members, and many other pilots, great harm.
Our goal: Protect pilots & ensure they remain airborne past age 60, w/o harming the SPC.
That’s it in a nutshell.
Paul Emens, Chairman
Note 1: Unfortunately, the Amicus will empty our treasury. We find it necessary to ask for modest contributions. We hope you will respond as you have in the past.
Note 2: I would like to have had this out before the chatter started about the APAAD brief. However, I managed to break my leg not long ago and that has set me back a bit. The unfortunate typo re American Pilots Against Age Discrimination is a good example… although that’s not a bad name for our group, post ICAO