Maurice Keating, Jr. v. Federal Aviation Administration and Langhorne M. Bond, Administrator, Federal Aviation Administration

Before his sixtieth birthday, Captain Keating was a pilot for Western Airlines. Thereafter, he was ineligible to be a pilot on passenger airlines under the “Age 60 Rule,” 14 C.F.R. § 121.383 (c) (1979). He appeals the denial of his petition for an exemption from the regulation and the denial of his motion to disqualify the Federal Air Surgeon from considering the exemption petition.

We need not reexamine the validity of the Age 60 Rule nor determine whether Keating is a safe pilot. We need decide only whether the Federal Aviation Administration (FAA) was arbitrary and capricious in reaching its decisions to deny the petition and the motion. We hold it was not and affirm both decisions.

I.

REVIEWABILITY

The FAA argues that the decision denying the exemption is within the discretion of the agency and therefore is excluded from judicial review under 5 U.S.C. § 701 (a)(2). This argument has been rejected in other circuits. See Rombough v. FAA, 594 F.2d 893, 895 (2d Cir. 1979); Gray v. FAA, 594 F.2d 793, 795 (10th Cir. 1979); Starr v. FAA, 589 F.2d 307, 310 (7th Cir. 1978). We agree with those courts that the exception to reviewability is too narrow to preclude review of the…