Petition for Review of Order of the Federal Aviation Administration
Before Fairchild, Chief Judge, Nichols, Judge,*fn* and Wood, Circuit Judge.
This case concerns the denial by the Federal Aviation Agency (FAA) of petitioner Captain John Starr's request for an exemption from the FAA's "Age 60 Rule," 14 C.F.R. § 121.383(c) (1977). For reasons discussed below, we affirm the decision of the FAA.
The Age 60 Rule was promulgated primarily to protect against the risk of a pilot's sudden incapacitation in flight from heart attack or stroke. 24 Fed.Reg. 9767 (1959). It prohibits any persons over age 60 from serving as a pilot in air carrier operations regulated under Part 121 of the FAA regulations, 14 C.F.R. § 121.1 Et seq. Studies that indicate degeneration in physiological and psychological functions as age increases, and an apparent inability of medical diagnostic tests to indicate accurately the physical changes in pilots over 60, were and are the major justifications for the enactment and continuance of the rule. The rule has survived challenges on both procedural and substantive grounds. See, e. g., Air Line Pilots Ass'n Int'l v. Quesada, 276 F.2d 892 (2d Cir. 1960), Cert. denied, 366 U.S. 962, 81 S. Ct. 1923, 6 L. Ed. 2d 1254 Rehearing denied, 368 U.S. 870, 82 S. Ct. 27, 7 L. Ed. 2d 71 (1961); O'Donnell v. Shaffer, 160 U.S.App.D.C. 266, 270, 491 F.2d 59, 63 (1974). (In both cases the method of enactment and decision of the FAA to adopt/uphold the rule were upheld.)
On June 10, 1977, Captain Starr, a Boeing 747 pilot for United Air Lines, filed a petition for exemption from the Age 60 Rule, asserting that his physical condition warranted such an exemption. Starr's petition emphasized the testimony in Houghton v. McDonnell Douglas Corp., 413 F. Supp. 1230 (E.D.Mo.1976), Rev'd, 553 F.2d 561 (8th Cir.), Cert. denied, 434 U.S. 966, 98 S. Ct. 506, 54 L. Ed. 2d 451 (1977). Starr maintains that in Houghton defendant's own medical experts concluded that under currently available medical standards, it can be determined to a reasonable degree of certainty that an individual pilot will not suffer a sudden incapacitation in flight through heart attack or stroke. In Houghton, various experts, including Dr. Stanley Mohler, Chief of the Aerospace Application Division of the FAA's Office of Aerospace Medicine, testified that it was feasible to determine that a pilot is physiologically younger than his chronological age. These experts placed great reliance on longitudinal medical histories (continuous uniform medical profiles of the same subject over a period of years) and electrocardiogram testing (stress EKG's). Starr's petition for exemption was based on the medical standards and procedures relied upon by the experts testifying at the trial level in Houghton. Doctors who have evaluated Captain Starr's health in past medical examinations all revealed that he was in excellent health before and at the time of his petition for exemption, and no examiner encountered evidence of risk factors indicating potential stroke.
While Captain Starr's petition was pending, the FAA reaffirmed its support of the Age 60 Rule: Langhorne Bond, the FAA Administrator, offered the U. S. Senate the results of his personal review of the rule promised at his confirmation hearings earlier in the year. In a letter to Senator Zorinsky, Mr. Bond stated that his agency's studies had found currently available information to be insufficient to support the development of a psychophysiological age index or a means of predicting the eventual advent of incapacitating diseases which occur at increasing frequency with advancing age. Mr. Bond also stated that he was aware of no scientifically based criteria warranting an exemption from the Age 60 Rule, but noted that the FAA continuously monitored scientific studies and advances in aerospace medicine. On October 5, 1977, the FAA denied Captain Starr's petition for exemption, finding that the standards proposed by Captain Starr to determine his physiological age were incomplete and inaccurate.
In reviewing the FAA's order, we are not to judge whether Captain Starr is fit to fly. And we are not reexamining the validity of the Age 60 Rule, already affirmed as it has been, or reweighing the evidence introduced before the FAA Administrator when he made the determination to keep the rule in force.
The case at hand concerns denial of an exemption to a single individual on the merits, but the issue involved is broader than that. By the statements of counsel, the position of the FAA is that it will not grant an exemption for a single pilot over 60 unless it is in a position to establish new standards applicable to everyone. In other words, in this area it will not exercise its exemption authority, as such, at all. We examine here whether the FAA may establish an "exemption policy" that refuses to allow exemptions for a particular class of persons, I. e., those over 60. Compare Coppenbarger v. FAA, 558 F.2d 836 (7th Cir. 1977), where the issue was the procedural rights of a petitioner for exemption, and where this court specifically declined to establish a standard of review for denial of an exemption on the merits.
Section 601 of the Federal Aviation Act, 49 U.S.C. § 1421(c), empowers the FAA Administrator to grant exemptions from FAA safety regulations governed by Title VI of the Act. It states:
The Administrator from time to time may grant exemptions from the requirements of any rule or regulation prescribed under this subchapter if he finds that such action would be in the public interest.
The FAA argues that the discretionary wording of that statute means that denial of an exemption from air safety regulations is one of those decisions excluded from any judicial review under the Administrative Procedure Act as "(an) agency action is committed to agency discretion by law." See 5 U.S.C. § 701(a)(2). But mere inclusion of discretionary terms in a statute and obvious contemplation by Congress that an administrator will be endowed with discretion in his actions, does not render a refusal to exercise discretion totally free from reviewability. Contonificio Bustese, S. A. v. Morgenthau, 74 App.D.C. 13, 121 F.2d 884 (1941). A decision of the Civil Aeronautics Board under a similarly worded mandate, section 411 of the Federal Aviation Act, 49 U.S.C. § 1381 (allowing the CAB to investigate complaints of unfair competition if such investigation was in the public interest), was held reviewable in REA Express, Inc. v. Civil Aeronautics Board, 507 F.2d 42, 45 (2d Cir. 1974). And in a proceeding under another exemption provision of the Aviation Act, which also uses the language "the Administrator may grant exemptions" (49 U.S.C. § 1386), the court stated that the agency action was reviewable under 49 U.S.C. § 1486(a). Island Airlines, Inc. v. Civil Aeronautics Board, 363 F.2d 120, 121 (9th Cir. 1966). As the leading student of administrative law has stated, "(t)he question is not Whether agency action is by law committed to agency discretion but To what extent agency action is so committed." 4 K. Davis, Administrative Law Treatise 33 (1958) (emphasis supplied).
To use the jargon of the trade, we review the action or inaction of the FAA under an "abuse of discretion" standard. This is the standard normally applied when an agency is authorized to take a particular line, if found to be "in the public interest." Blaha v. United States, 511 F.2d 1165, 1170, 206 Ct.Cl. 183, 194 (1975). Although the Aviation Act requires review of findings of fact under a "substantial evidence" standard, 49 U.S.C. § 1486(e), Pillai v. Civil Aeronautics Board, 158 U.S.App.D.C. 239, 485 F.2d 1018 (1973), nonfactual analyses and agency conclusions drawn from facts are generally reviewed under an abuse of discretion standard. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1970); Commonwealth v. Virginia v. Civil Aeronautics Board, 498 F.2d 129, 133 (4th Cir.), Cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642 (1974); O'Donnell v. Shaffer, 160 U.S.App.D.C. 266, 491 F.2d 59 (1974). And in a recent case the Ninth Circuit carefully articulated its rationale for refusing to use the "substantial evidence" rule, for review of grant or denial of an exemption. Tiger International v. Civil Aeronautics Board, 554 F.2d 926 (9th Cir.), Cert. denied, 434 U.S. 975, 98 S. Ct. 532, 54 L. Ed. 2d 467 (1977). It noted that 49 U.S.C. § 1486(e) required that findings of fact be reviewed under a substantial evidence standard, but argued that such a standard was unworkable for an exemption proceeding. In proceedings requesting exemptions from a valid agency rule, the court noted, the bulk of evidence is petitioner's, since he must show that circumstances justify an exemption in his case. And if an agency's decision to grant or deny an exemption were to be judged under a substantial evidence rule, that agency would be forced to defend its standard rule in every exemption proceeding. ...