United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2011 Decided June 17, 2011
No. 10-5215
JAMES M. JONES,
APPELLANT
v.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, A LABOR
ORGANIZATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01075)
Robert B. Fitzpatrick argued the cause and filed the
briefs for appellant. Constantine J. Gekas entered an
appearance.
Granville C. Warner argued the cause for appellees.
With him on the brief were Jonathan C. Fritts, Russell R.
Bruch and Marta Wagner.
Before: HENDERSON, GRIFFITH, and KAVANAUGH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: In the district court, plaintiff
James Jones challenged the constitutionality of a provision of
the Fair Treatment for Experienced Pilots Act (FTEPA), 49
U.S.C. § 44729, which allows some pilots, but not him, to
take advantage of Congress’s decision to raise the mandatory
retirement age from 60 to 65. Jones also alleged that his
former employer, Continental Airlines, and his former union,
the Air Line Pilots Association, violated a state law banning
age discrimination in employment by failing to place him in a
position at work that would have allowed him the benefit of
the new retirement age. Before the district court, Jones
conceded that the strength of his state claims depended on his
constitutional arguments. It was no surprise, therefore, that
the district court dismissed his state discrimination claims
when it found his constitutional arguments wanting. On
appeal, Jones offers for the first time a legal theory under
which he says his state claims could succeed. We decline to
pass on the merits of an argument the district court had no
chance to consider and affirm the dismissal of Jones’s suit.
I
In 1959, the Federal Aviation Administration (FAA)
issued the “Age 60 Rule” prohibiting people over 60 from
serving as commercial pilots. 24 Fed. Reg. 9767, 9768 (Dec.
4, 1959). The most recent version of the Age 60 Rule
provided that no airline operator “may use the services of any
person as a pilot on an airplane engaged in operations under
[Part 121 of the Federal Aviation Regulations] if that person
has reached his 60th birthday.” 14 C.F.R. § 121.383(c)
(2008). Part 121 governs the operations of most commercial
airlines. See id. § 121.1.
On December 13, 2007, Congress enacted the FTEPA,
which expressly abrogates the Age 60 Rule, 49 U.S.C.
3
§ 44729(d), and allows “a pilot [to] serve . . . until attaining
65 years of age,” id. § 44729(a). As a general matter, the
FTEPA’s repeal of the Age 60 Rule is not retroactive: “No
person who has attained 60 years of age before [the FTEPA’s]
date of enactment . . . may serve as a pilot for an air carrier
engaged in . . . operations [covered by Part 121 of the Federal
Aviation Regulations].” Id. § 44729(e)(1).
However, this provision does not apply to someone who
was over 60 on the date of enactment if he was serving as “a
required flight deck crew member” at the time. Id.
§ 44729(e)(1)(A).* Jones asserts it was possible for the
airlines to avoid the FTEPA’s nonretroactivity provision by
temporarily demoting a pilot to “required flight deck crew
member” when he turned 60, waiting for Congress to pass the
FTEPA, and then promoting him to pilot. On appeal, Jones
argues that state employment discrimination law entitled him
to such a temporary demotion.
Jones was working as a pilot for defendant Continental
Airlines based in Newark, New Jersey, when he turned 60 and
was dismissed on November 9, 2007—just 33 days before the
FTEPA took effect. He was not working for Continental as a
“required flight deck crew member” or in any other capacity
when Congress passed the FTEPA. Shortly before his
*
In other litigation, the defendants have disagreed about who
qualifies as a “required flight deck crew member.” See Brooks v.
ALPA, 630 F. Supp. 2d 52, 54 (D.D.C. 2009). But whatever the
scope of the phrase, the parties agree that at a minimum it includes
flight engineers—members of the crew on certain older aircraft
who monitor a side-facing instrument panel but do not normally
operate the flight controls. See Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 115 n.3 (1985). In any event, there is no
dispute that Jones was not working as a required flight deck crew
member when Congress passed the FTEPA.
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birthday, Jones had petitioned the FAA for an exemption
from the Age 60 Rule and asked Continental to temporarily
change his employment status, anticipating that Congress
would soon pass the FTEPA. The FAA and Continental
refused his requests. On December 23, 2008, Jones filed a
petition for review challenging the FAA’s refusal to exempt
him from the Age 60 Rule. We dismissed Jones’s petition
under Adams v. FAA, 550 F.3d 1174 (D.C. Cir. 2008), in
which we had previously held that the FTEPA mooted
petitions for review challenging the FAA’s application of the
Age 60 Rule. See Jones v. U.S. Dep’t of Transp., 2009 WL
2832030 (D.C. Cir. Apr. 22, 2009).
Jones then filed suit in the district court against
Continental, the Air Line Pilots Association (ALPA), the
United States, the Equal Employment Opportunity
Commission (EEOC), and the FAA, as well as two EEOC
officials and the Administrator of the FAA in their official
capacities. Jones’s complaint alleged that the failure to apply
the FTEPA’s higher age limit retroactively violated the Equal
Protection and Due Process Clauses and was a bill of
attainder. He further argued that Continental’s refusal to
allow him to return to work was part of an effort, joined by
ALPA, to prevent him from continuing to serve as a pilot
because of his age in violation of the New Jersey Law
Against Discrimination (NJLAD). See N.J. STAT. ANN.
§ 10:5-12.
After rejecting Jones’s constitutional arguments, the
district court dismissed his state claims as well because Jones
had conceded to the court “‘that if the challenged portions of
FTEPA are constitutional, they preempt his age
discrimination claims under the New Jersey Law Against
Discrimination.’” Jones v. Air Line Pilots Ass’n, 713 F. Supp.
2d 29, 38 n.8 (D.D.C. 2010) (quoting Jones’s Opp’n to
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Continental’s Mot. to Dismiss 4). On appeal, Jones disputes
only the dismissal of his state age discrimination claims
against Continental and ALPA. We review the district court’s
dismissal of these claims pursuant to 28 U.S.C. § 1291.
II
Jones’s concession to the district court that the FTEPA
preempted his NJLAD claims is fatal to his appeal. No doubt
recognizing that, he argues for the first time on appeal that the
FTEPA does not preempt the claim he now advances: that
Continental violated NJLAD by failing to temporarily demote
him to “required flight deck crew member” so that he could
take advantage of the newly enacted and higher age limit. But
we decline Jones’s invitation to consider a legal theory that he
did not present to the district court, exercising “our well-
established discretion not to consider claims that litigants fail
to raise sufficiently below and on which district courts do not
pass.” Cruz v. Am. Airlines, Inc., 356 F.3d 320, 329 (D.C. Cir.
2004).
In its motion to dismiss, Continental argued to the district
court that the FTEPA preempts Jones’s NJLAD claims.
Continental’s Mot. to Dismiss 10. The FTEPA’s preemption
provision provides:
An action taken in conformance with this section . . .
or taken prior to the date of enactment of this section
in conformance with [the Age 60 Rule] may not
serve as a basis for liability or relief in a proceeding,
brought under any employment law or regulation,
before any court or agency of the United States or of
any State or locality.
49 U.S.C. § 44729(e)(2).
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Jones responded that he “agree[d] that if the challenged
portions of FTEPA are constitutional, they preempt his age
discrimination claims under [NJLAD] . . . However, if those
provisions are unconstitutional, they therefore cannot
invalidate, preempt, supersede, or otherwise make ineffective
the protections of that State statute.” Jones’s Opp’n to
Continental’s Mot. to Dismiss 4. Jones’s concession was well
taken, and the district court dismissed the NJLAD claims after
rejecting his constitutional arguments. Jones, 713 F. Supp. 2d
at 38 n.8. On appeal, Jones argues that his seemingly
unequivocal concession in his response to Continental’s
motion to dismiss related only to a subset of his NJLAD
claims and that the FTEPA does not bar his new theory that
an airline can run afoul of state employment law in the way it
determines who benefits from the FTEPA’s new age limits.
Because Jones did not press this theory before the district
court, we decline to reach its merits. Jones did not make clear
in his complaint that he was suing Continental for its failure
to demote him to a status that might help him take advantage
of the new age limit in the FTEPA. His complaint never
alleged that he requested a demotion, that he was qualified for
such a position, or that such positions were available—all
facts he would need to prove to make out a prima facie case
of age discrimination for failure to demote under NJLAD. See
Andersen v. Exxon Co., 446 A.2d 486, 490-91 (N.J. 1982). Of
course, “under the Federal Rules of Civil Procedure, a
complaint need not pin [a] plaintiff’s claim for relief to a
precise legal theory,” Skinner v. Switzer, 131 S. Ct. 1289,
1296 (2011), and an employment discrimination plaintiff is
not required to plead every fact necessary to establish a prima
facie case to survive a motion to dismiss, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002). Regardless of
whether the Federal Rules’ liberal pleading standard would
7
have permitted Jones to assert his failure-to-demote theory
without amending his complaint, see Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009), he failed to do so. As a result, neither
the defendants nor the district court had notice of the type of
NJLAD claim that Jones now asserts. Under these
circumstances, we adhere to “the general rule . . . that a
federal appellate court does not consider an issue not passed
upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).
Jones notes that his complaint alleged that Continental
“fail[ed] to grant [his] requests to alter his status, or take other
steps, so as to allow him to remain eligible to maintain his
employment as a . . . commercial airline pilot once the Age 60
Rule was repealed.” Am. Compl. 25. The complaint also
alleged that Jones sent a letter to Continental requesting
“furlough, medical leave, personal leave, etc.” Id. at 24. Read
in context, however, these statements relate only to Jones’s
constitutional arguments: he wanted to be temporarily
grounded rather than dismissed when he turned 60 so that he
could return to work after Congress passed the FTEPA, which
he claimed was possible because the failure to apply the
FTEPA retroactively was unconstitutional.
Without reason to suspect that Jones was asserting a
theory that Continental’s failure to demote him violated
NJLAD, the defendants did not challenge this theory in their
motions to dismiss. See ALPA Mot. to Dismiss 20-24;
Continental Mot. to Dismiss 6-14. Then, rather than clarifying
that his NJLAD claims should survive even if his
constitutional theories failed, Jones confirmed in his response
to Continental’s motion to dismiss that his NJLAD claims
depended on the success of his constitutional arguments.
Even if Jones had pled the failure-to-demote theory, his
subsequent filings in the district court abandoned it.
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Finally, Jones urges us to construe his statement in his
response to Continental’s motion to dismiss as a concession
on a question of law which cannot bind us. See United States
v. Ginyard, 444 F.3d 648, 649 (D.C. Cir. 2006) (“[T]he court
is not bound by [a] concession on a question of law.”). But
even if we were to set aside his concession, Jones would still
be responsible for presenting his legal theories to the district
court. As we have repeatedly emphasized, “legal theories not
asserted in the district court ordinarily will not be heard on
appeal.” Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686
(D.C. Cir. 2010) (internal quotation marks omitted); see also
Jones v. Horne, 634 F.3d 588, 603 (D.C. Cir. 2011); Hall v.
Ford, 856 F.2d 255, 267 (D.C. Cir. 1988). We see no reason
to depart from that rule in this case.
III
For the foregoing reasons, the district court’s judgment is
Affirmed.