Henry Weiland v. American Airlines, Inc.

dissenting:

“No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless ... such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew ' member.” 49 U.S.C. § 44729 (e)(1)(A).

Statutory construction is frequently not easy. For that reason I set forth the sentence we are construing at the top of this dissent. In this case, however, a plain reading of the statutory language would seem to provide a clear answer to the question before us. Henry Weiland was “in the employment” of American Airlines on December 13, 2007. American Airlines was at the time engaged in part 121 operations, so that it was “in such operations” for purposes of § 44729(e)(1)(A). Weiland was a pilot and check airman, and a pilot, as the majority acknowledges, certainly is a “required flight deck crew member.” Weiland was thus “in the employment of [an air carrier engaged in covered operations] on such date of enactment as a *1116 required flight deck crew member.” He needs no more to prevail.

The majority argues that Weiland could not…

Judge REINHARDT dissented because he would hold that Weiland qualified for the exception in § 44729(e)(1)(A).

OPINION

This case involves a difficult question of statutory construction that may currently apply only to a class of one. Although somewhat uncomfortable with the conclusion we reach, we hold that Plaintiff Henry Weiland, who turned 60 six days before the FAA’s Age 60 Rule was abrogated by the Fair Treatment for Experienced Pilots Act (“FTEPA”), does not qualify for one of the FTEPA’s exceptions to non-retroactivity. The district court reached the same result, and its decision is affirmed.

I.

Until December 13, 2007, airline pilots at air carriers operating under 14 C.F.R. § 121.1 (a) (“Part 121 air carriers”) were subject to the FAA’s Age 60 Rule. See 14 C.F.R. § 121.383 (c) (2007). That rule required Part 121 air carriers to cease scheduling pilots from operating aircraft when they turned 60. On December 13, 2007 the FTEPA was enacted and abrogated the Age 60 Rule, delaying the age at which pilots must cease flying from 60 to 65. See 49 U.S.C. §§ 44729 (a), (d). The FTEPA is explicitly non-retroactive, excluding any “person who has attained 60 years of age before…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY J. WEILAND, No. 11-56088 Plaintiff-Appellant, D.C. No. v. 8:10-cv-01451-

JVS-SS

AMERICAN AIRLINES, INC.,

Defendant-Appellee. OPINION

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted February 2, 2015—Pasadena, California

Filed March 2, 2015

Before: Stephen Reinhardt and Ronald M. Gould, Circuit Judges, and J. Frederick Motz, Senior District Judge.

Opinion by Judge Motz; Dissent by Judge Reinhardt SUMMARY *

Federal Aviation Administration

The panel affirmed the district court’s dismissal of airline pilot Henry Weiland’s action against American Airlines, holding that Weiland, who turned 60 six days before the Federal Aviation Administration’s Age 60 Rule was abrogated by the Fair Treatment for Experienced Pilots Act (“FTEPA”), did not qualify for one of the Act’s exceptions to non-retroactivity.

The FAA’s Age 60 Rule required air carriers operating under 14 C.F.R. § 121(a) to cease scheduling pilots from operating aircraft…