Yetman, Bert M. v. FAA

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2821

Bert M. Yetman, Jerry L. Adams,
Frank L. Ahern, et al.,

Petitioners,

v.

Jane Garvey, Administrator,
Federal Aviation Administration,

Respondent.

On Petition for Review of an Order
of the Federal Aviation Administration.
No. FAA-2000-8016

Argued May 7, 2001--Decided August 14, 2001

Before Flaum, Chief Judge, and Ripple and
Diane P. Wood, Circuit Judges.

Flaum, Chief Judge. Sixty-nine pilots,
all either approaching or having reached
the age of sixty, petitioned the Federal
Aviation Administration ("FAA") for
exemptions from the agency’s "Age Sixty
Rule." The FAA, which has never granted
such an exemption, continued that trend
by denying the pilots’ requests.
Petitioners now seek review of the FAA’s
decision in this court. For the reasons
stated herein, we affirm the order of the
FAA.

I. BACKGROUND

In Baker v. FAA, a group of airline
captains sought review of an FAA order
which had denied their petition for
exemptions from an agency rule that
prohibits those who have reached the age
of sixty from serving as pilots. 917 F.2d
318 (7th Cir. 1990) While we ultimately
affirmed the decision of the FAA not to
grant the requested exemptions, we
cautioned the agency that its Age Sixty
Rule was not sacrosanct and untouchable.
Id. at 322. Further, we counseled the FAA
that serious consideration should be
given to the petitioners’ position that
granting exemptions would not increase
the risk of air travel accidents. Since
that decision, over a decade has passed,
but the FAA has held fast to its blanket
policy of denying requests for
exemptions. Thus, once again, a group of
pilots, all either past the age of sixty
or approaching that age, have come before
this court in an effort to have us
declare that the FAA’s policy constitutes
an abuse of discretion. Because the
history of the rule at issue has been
discussed extensively in published
opinions, both from within and outside
this circuit, see Aman v. FAA, 856 F.2d
946, 947-49 (7th Cir. 1988); Starr v.
FAA, 589 F.2d 307, 309 (7th Cir. 1978);
Professional Pilots Fed’n v. FAA, 118
F.3d 758, 760-62 (D.C. Cir. 1997), at
this juncture, we will only provide a
brief recitation.

Under the Federal Aviation Act of 1958,
the FAA is charged with promoting safety
in the skies by prescribing minimum
standards in such areas as aircraft
design, aircraft inspection, and pilot
qualifications. 49 U.S.C. sec. 44701. The
Act also requires the FAA to promulgate
regulations "in the interest of safety
for the maximum . . . periods of service
of airmen and other employees of air
carriers." Id. at sec. 44701(a)(4). Each
responsibility delegated to the FAA by
the Act must be carried out in a way
which tends to reduce or eliminate the
possibility or recurrence of accidents in
air transportation. Id. at sec. 44701(c).

Responding to its mandate, in 1959, the
FAA promulgated what has become known as
the Age Sixty Rule, limiting the age past
which individuals can pilot certain
aircrafts. More specifically, the
regulation prohibits any air carrier from
using the services of any person as a
pilot, and prohibits any person from
serving as a pilot, on an airplane
engaged in operations under Part 121 if
that person has reached his or her 60th
birthday. 14 C.F.R. sec. 121.383(c). As
an initial justification for its rule,
the agency argued that the regulation
promotes air safety, as "available
medical studies show that sudden
incapacitation due to heart attacks or
strokes becomes more frequent as men
approach age sixty and present medical
knowledge is such that it is impossible
to predict with accuracy those
individuals most likely to suffer
attacks." Air Line Pilots Ass’n, Int’l v.
Quesada, 276 F.2d 892, 898 (2d Cir.
1960). Notwithstanding advances in the
medical field, and the fact that the
dictate has been challenged continually
over the past forty years, today the Age
Sixty Rule remains in force./1

Relevant to this review, the Federal
Aviation Act also provides for the
granting of exemptions to any regulations
promulgated by the agency pursuant to the
Act. According to 49 U.S.C. sec.
44701(f), the FAA may grant an exemption
from its requirements if it finds that
such an exemption is in the public
interest. However, the FAA has
established a rigorous benchmark for
proving that an exemption is in the
public interest, as a petition requesting
one must contain any information, views,
or arguments available to the petitioner
to support the action sought, the reasons
why the petition would be in the public
interest and the reason why the exemption
would not adversely affect safety or how
the action to be taken by the petitioner
would provide a level of safety equal to
that provided by the rule from which the
ex-emption is sought. 14 C.F.R. sec.
11.81 (formerly 14 C.F.R. sec.
11.25(b)(5)). And while that standard had
proved insurmountable to pilots for
thirty-five years, in 1995, the FAA
further hardened its stance, announcing
that future petitions for exemptions
would be summarily denied unless the
petitions contain a proposed technique,
not previously discussed, to assess an
individual pilot’s abilities and risks of
subtle and sudden incapacitation. 60 Fed.
Reg. 65,980 (1995).
On April 11, 2000, a petition for
exemptions was filed on behalf of Jerry
L. Adams and sixty-eight other commercial
airline pilots. In support of the
petition, the pilots submitted their
complete medical records and 286
additional exhibits. Besides evidence
which tended to attack the basis of the
Age Sixty Rule, the petitioners also
included the recommendations of a panel
of eight renowned physicians in the
fields of cardiology, geriatric medicine,
internal medicine, aerospace medicine,
and neuropsychology ("Age Sixty Exemption
Panel"). According to the petitioners,
the Age Sixty Exemption Panel had
developed a comprehensive and realistic
protocol to evaluate the
medical/neuropsychological status of
pilots seeking to continue their services
in airline operations after the age of
sixty. Despite the panel’s recommendation
that the petitioners be granted
exemptions, the FAA determined that the
pilots’ proffers did not meet the
agency’s promulgated standards, and thus
summarily denied the petition. When the
petitioners filed for review of that
decision in this court, the FAA requested
and received a remand in order to
reconsider whether the petitioners had
demonstrated that an exemption to the Age
Sixty Rule was warranted. Following the
remand, the FAA solicited comments from
interested parties, receiving over eight
hundred such statements. Nonetheless, in
a fairly extensive opinion dated December
13, 2000, the FAA again denied the
petitioners’ requests, prompting this
appeal.

II. DISCUSSION

In reviewing the FAA’s order, we are not
to judge whether the petitioning pilots
are fit to fly. Further, we are not to
reexamine the validity of the Age Sixty
Rule itself, already affirmed as it has
been, or reweigh the evidence introduced
before the FAA when the determination was
made to keep the rule in force./2 See
Starr, 589 F.2d at 309. Rather, we focus
solely on the petition for exemptions,
reviewing the FAA’s findings of fact for
substantial evidence. See Aman, 856 F.2d
at 951. In other respects, including most
notably the administrator’s application
of the legal standards to the facts as
found, the FAA’s decision to deny an
exemption may be set aside if arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with the law-
-the generally applicable standard of
review for administrative actions under 5
U.S.C. sec. 706(2)(A). See id. As such,
we examine the agency’s decision to
ensure that it was based on a
consideration of the relevant factors and
articulated a rational connection between
the facts found and the choice made. See
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 42-43
(1983). All the while, petitioners have
the burden of showing that circumstances
justify exemptions from the Age Sixty
Rule, especially given the FAA’s
discretionary authority to act in this
area. See Baker, 917 F.2d at 319. Indeed,
it is a heavy burden that petitioners
bear, as daunting problems of public
safety are implicated by the decision
whether to grant exemptions to the Age
Sixty Rule. And though it cannot be
denied that possible age discrimination
forms a dimension of the issue, safety is
and must be the dominant consideration.
See id.

A. Inconsistent Determinations

In Aman, we cautioned that the deference
accorded to agency action "should not be
equated with a license to issue
inconsistent determinations." 856 F.2d at
957. A long line of precedent has
established that an agency action is con
sidered arbitrary when the agency has
offered insufficient reasons for treating
similar situations differently. See,
e.g., State Farm Mutual Auto., 463 U.S.
at 57 (citing Greater Boston Television
Corp. v. FCC, 444 F.2d 841, 852 (D.C.
Cir. 1970)); Transactive Corp. v. United
States, 91 F.3d 232, 237 (D.C. Cir.
1996); Airmark Corp. v. FAA, 758 F.2d
685, 691- 92 (D.C. Cir. 1985). Here, the
pilots assert that the FAA has rendered
inconsistent determinations. According to
the petitioners, the FAA has allowed
certain pilots past the age of sixty to
fly in United States airspace, and has
granted exemptions to pilots with known
medical conditions. Petitioners claim
that the agency’s failure to adequately
explain why it has chosen to treat those
pilots differently from the petitioners
here renders the FAA’s decision in this
instance an abuse of discretion.

1. Pilots Flying Past The Age Of Sixty

In support of the assertion that the FAA
has rendered inconsistent determinations,
the pilots have advanced two
circumstances in which the FAA has
allowed pilots past the age of sixty to
fly. First, the pilots note that while
the FAA prohibits United States common
carriers from employing healthy pilots
who are over the age of sixty, at the
same time, the agency allows foreign
carriers operating in United States
airspace to employ pilots who are beyond
that age. Second, the petitioners point
out that from 1995 through 1999, while
the FAA sought to bring commuter
planes/3 under the safety rules that
apply to major airline carriers, the
agency allowed commuter airlines to
employ pilots who were past the age of
sixty. The petitioners further note that
during that time period, National
Transportation Safety Board ("NTSB")
reports reveal that no accidents
involving pilots over sixty occurred,
though the regional airline pilots were
operating similar equipment and flying in
and out of the same airports as the
pilots for the larger commercial
airlines.

The FAA suggests that there are
compelling reasons why it permits foreign
pilots, and why it permitted commuter
pilots, to contravene the substance of
its Age Sixty Rule. In responding to its
policy of permitting certain pilots
employed by foreign air carriers to serve
beyond sixty, the FAA notes that the
United States is a signatory to the
Convention on International Civil
Aviation, Dec. 7, 1944, 61 Stat. 1180, 15
U.N.T.S. 295 ("Chicago Convention").
Pursuant to Article 37(d), the
International Civil Aviation Organization
("ICAO") is directed to adopt standards
for the licensing of pilots. While the
ICAO has adopted an age sixty limitation
for pilots-in-command of large aircrafts
traveling internationally, the
organization only recommends that age
limitation for co-pilots. As the FAA
points out, under 49 U.S.C. sec.
40105(b)(1)(A) & (B), the FAA must act
consistently with obligations of the
United States Government under an
international agreement, and consider
applicable law and requirements of a
foreign country. Thus, the FAA maintains,
it must as a matter of law allow foreign
co-pilots over sixty to fly irrespective
of the FAA’s own regulations.

As for its decision to allow pilots over
sixty to fly commuter planes between 1995
and 1999, the FAA seeks to explain the
uniqueness of that situation. Responding
to a series of high profile accidents
involving commuter planes, the FAA, at
the behest of the NTSB, sought to
increase safety in scheduled
passenger-carrying operations and to
clarify, update, and consolidate the
certification and operations requirements
for persons who transport passengers or
property by air for compensation or hire.
60 Fed. Reg. 65,832. Thus, in 1995, the
agency determined that commuter airline
pilots should be subject to the FAA
regulations applicable to major airline
carriers, including the Age Sixty Rule.
Originally, when the FAA sought to bring
Part 135 operations under the Part 121
requirements, it proposed that the Age
Sixty Rule would take effect for commuter
operations one year after publication of
the final rule. However, in response to
comments requesting a more delayed
effective date, the FAA agreed to a four-
year compliance period for pilots already
employed by commuter airlines. The FAA
asserts that by granting the extended
compliance period, it provided pilots who
had a reasonable expectation that they
would be allowed to fly time to plan for
retirement or for changing jobs, and
allowed for regional airlines to recoup
services for a longer period from pilots
whom they had recently invested money in
training. Thus, according to the FAA,
these special circumstances provided a
rational basis for the agency’s decision
to temporarily treat commuter pilots
differently.

Statistics accumulated from the flights
of foreign and commuter airline pilots,
sixty and over, may provide the FAA with
the data needed in order to determine
whether continuation of the Age Sixty
Rule is warranted. These pieces of
evidence, and other comparable
statistics, would certainly be relevant
in a challenge to the Age Sixty Rule
itself. But, under this exemption review,
most are not. Here, we are limited to
determining whether the FAA’s decision to
allow foreign and commuter pilots
"virtual exemptions" while denying
domestic pilots those opportunities
constitutes an abuse of discretion. That
being said, we find that the FAA has
provided rational justifications for
these supposed inconsistencies.

The FAA has a legitimate rationale for
treating foreign carriers differently
from domestic carriers. Section 40105
does require that the FAA act
consistently with, in this instance, our
obligations under the Chicago Convention.
Thus, if foreign carriers have adequately
licensed co-pilots past the age of sixty,
we must allow them to operate in our
airspace. Yet, by no means does the fact
that our treaty obligation mandates that
we allow foreign countries to take
actions inconsistent with our regulations
call into question the validity of our
regulations. See Professional Pilots
Fed., 118 F.3d at 768. Likewise, in the
confines of this review, we believe the
temporary inconsistency involving
commuter pilots to be of little import.
The FAA has provided a rational
explanation why it allowed Part 135
pilots over sixty to fly for four years.
We fail to see how the practical delay in
implementation, while the FAA increased
the scope of its Age Sixty Rule, could
call into question the validity of the
FAA’s decision not to grant these
exemptions.

2. Medical Exemptions For Disqualified
Pilots Under Sixty

While the petitioners acknowledge that
the age sixty pilots who have flown in
this country have not done so pursuant to
exemptions similar to the type that is
being requested here, they nonetheless
assert that the FAA has an inconsistent
standard for granting exemptions. In
support, petitioners submit that the FAA
grants special issuance exemptions to
pilots under sixty with a wide array of
demonstrable, progressive, and otherwise
disqualifying diseases, subject to
periodic monitoring, 14 C.F.R. sec.
67.401, while denying exemptions to age
sixty pilots with no known diseases
because of a professed fear of unknown or
subtle and undetectable defects. For
example, petitioners note that the FAA
will forbid an apparently healthy pilot
over the age of sixty to fly because of
the risk that he or she might have a
first heart attack while, at the same
time, allow a younger pilot to fly in
spite of the higher statistical risk that
he or she might suffer a second heart
attack. Not only is such a decision
arbitrary and capricious, according to
the petitioners, but it calls into
question the veracity of the agency’s
proffered explanation for grounding
pilots over sixty--for if the FAA is able
to adequately monitor the health of those
under sixty with known medical
conditions, then surely the agency could
monitor those healthy pilots who have
reached the age of sixty.

This is not the first time that pilots
have presented this exact argument to
this court. In 1978, we rejected this
argument. See Starr, 589 F.2d at 313. In
1990, we rejected this argument. See
Baker, 917 F.2d at 322. The fact that
petitioners have sought to reintroduce it
in the year 2001 has not added any
validity to the contention./4 First, as
we noted in Starr, just because the FAA
may have established more lax exemption
policies for one set of circumstances
does not require such a policy in other
circumstances. "[E]ven if those more
liberal exemption policies were found to
be unsafe, that does not justify
introduction of another program which the
FAA’s own experts consider unsafe."
Starr, 589 F.2d at 313. A policy of
exemptions is intended to provide an
administrator with flexibility. To
mandate that the FAA is required to give
exemptions to age sixty pilots simply be
cause it grants exemptions to pilots
under sixty with known medical conditions
would be to completely cabin the FAA’s
discretion--forcing the agency to either
grant every exemption or never grant an
exemption.

Yet more importantly, the FAA has
provided a rationale for its decision to
grant exemptions to younger pilots with
known medical conditions. "When a special
issuance medical certificate is granted,
the condition in question has been
clearly identified, and the agency has
been able to develop a means of
assessment and surveillance specially
designed to demonstrate the individual’s
capabilities and to identify any adverse
changes." 60 Fed. Reg. 65,984. However,
the more subtle forms of physical and
mental decline that may accompany aging
often cannot be detected, let alone
monitored or controlled. While we may not
find this distinction convincing in all
respects, see Baker, 917 F.2d at 322, the
difference between the two groups is
adequate to warrant the distinction that
the FAA has drawn, and to preclude a
finding that the FAA is acting
arbitrarily and capriciously in this
regard. See Professional Pilots Fed’n,
118 F.3d at 767.

3. Change In World Standards

Finally, the petitioners assert that the
FAA’s decision to deny their petition is
inconsistent, given the fact that there
has been a change in the world standard
with regard to age limitations for
pilots. Effective July 1, 1999, Europe’s
Joint Aviation Authority adopted age
sixty-five as the standard retirement age
for commercial pilots among its 29 member
states. Furthermore, the petitioners note
that the ICAO age sixty standard has been
rejected by two-thirds of the ICAO member
states. That the FAA has maintained its
Age Sixty Rule in the face of viable
alternatives, according to the pilots,
goes to show that the agency has blindly
adhered to an outdated rule.

Once again, we do not dispute that the
practices of foreign carriers might
provide guidance for the FAA in
considering alternatives to its Age Sixty
Rule. Perhaps statistics accumulated
regarding foreign pilots over sixty will
assist in showing that the age cutoff in
this country should be raised, or
dispensed with altogether. However, such
evidence is of little significance in our
review of the petition for exemptions.
There is nothing inconsistent, arbitrary,
or capricious in the FAA’s decision to
adopt a standard different from that of
other countries. Caution, even excessive
caution, will not constitute an abuse of
discretion if the decision is made after
considering the relevant medical
advances. "[I]f it is evident that the
agency has not shirked its duty to
examine [new advances in medical testing]
standards, but simply has chosen what it
considers the safer of two or more oppos
ing standards, this court will not
examine further." Starr, 589 F.2d at 312.
The pilots have not presented anything to
suggest that the FAA has deliberately
disregarded medical studies that other
countries have not. Thus, we find the
fact that other countries may have
adopted an age sixty-five limitation (or
even no limitation at all) not to warrant
the granting of these exemptions.

B. Petitioner’s Age Sixty Exemption Protocol

In addition to claiming that the FAA has
a practice of rendering inconsistent
determinations with regard to the Age
Sixty Rule, the petitioners also present
a more specific challenge to the FAA’s
decision in this case. Their contention
is that the agency has disregarded the
fact that these pilots have met the
promulgated standard for granting
exemptions--presenting (and passing) a
protocol which can accurately gauge an
individual pilot’s abilities and risks of
sudden incapacitation. The petitioners
assert that they have been examined by
the Age Sixty Exemption Panel, which was
formed in 1999 specifically to evaluate
the medical/ neuropsychological status of
airline pilots seeking to continue their
employment after age sixty. According to
the pilots, the panel has developed and
approved medical and neuropsychological
protocols for their use in evaluating the
fitness of applicants for exemptions from
14 C.F.R. sec. 121.383(c). The testing
which makes up the Age Sixty Exemption
Protocol includes a complete medical
history, physical examination, chem-
screen profile, hemoccult, urinalysis,
chest x-ray, audiometry, vision tests,
tonometry, electrocardiogram, and
exercise stress testing. The protocol
also contains neuropsychological testing
comprised of CogScreen Aeromedical
Edition ("CogScreen-AE"), Wechsler Adult
Intelligence Scale-Revised, Rey Auditory
Verbal Learning Test, Trail Making Test,
Controlled Oral Word Association Test,
and the Paced Auditory Serial Addition
Test. The Age Sixty Exemption Panel has
determined that these tests, performed
competently, together with other and
further testing which may be medically
and psychologically indicated, are
sufficient to evaluate the fitness of
pilots over sixty. Further, with regard
to these sixty-nine pilots, the panel has
utilized the protocol and concluded that
subject to the satisfactory completion of
the customary operational requirements of
the FAA, the petitioners should be
granted exemptions.

While the Age Sixty Exemption Protocol
is certainly comprehensive, the vast
majority of the protocol has been
previously submitted to the FAA and
rejected in the petitions for exemptions
in Aman and Baker. With regard to the
medical protocol suggested by the
exemption panel, the FAA has concluded
that the protocol is essentially
identical to the one presented in Aman.
That protocol was found insufficient to
evaluate pilots, and petitioners have not
put forth anything to suggest that the
protocol, at this point, has any greater
predictive value. As for the
neuropsychological protocol, we recognize
that there are several differences
between the present protocol and the one
submitted in Aman. The Rey Auditory
Verbal Learning Test, Controlled Word
Association, and Paced Auditory Serial
Addition Test in this petition substitute
for the Welcher Memory Scale, Stroup
Color Word Test, and Perceptual Speed
Calculation Test relied upon in Aman.
However, the FAA maintains, and the
petitioners do not truly dispute, that
these substitutions have been made
without improving the test battery’s
diagnostic or predictive value. Thus, we
must focus on what is truly new and
relevant in the Age Sixty Exemption
Protocol--the Cogscreen-AE--and determine
whether, when combined with the
previously rejected protocol, it provides
an adequate means of evaluating
petitioners as they reach and pass the
age of sixty.

CogScreen-AE is a cognitive-screening
instrument designed to rapidly assess
deficits or changes in attention,
immediate and short-term memory, visual-
perceptual functions, sequencing
functions, logical problem solving,
calculation skills, reaction time,
simultaneous information processing
abilities, and executive functions. The
test, which was initially designed to
meet the FAA’s need for an instrument
that could detect subtle changes in
cognitive functioning, is a measure of
the underlying perceptual, cognitive, and
information processing abilities
associated with flying. CogScreen-AE is
actually a battery of eleven computer-
administrated tests, all which operate as
a screening tool for the rapid assessment
of a pilot’s cognitive functions. All
petitioning pilots here have been
examined using CogScreen-AE, and have
been certified by the Age Sixty Exemption
Panel as being fit for exemptions from
the Age Sixty Rule.

The FAA does not dispute that CogScreen-
AE shows promise as a tool for detecting
brain dysfunctions, and for predicting
flight performance. The CogScreen-AE was
developed and is employed by the FAA in
assessing cognitive function for the
grant of special medical exemptions. In
fact, the FAA has noted that CogScreen-AE
has the potential to serve the agency as
a relatively inexpensive and efficient
adjunct to traditional neuropsychological
assessment in the medical certification
of airmen. Studies have clearly
demonstrated CogScreen-AE’s sensitivity
and specificity as a tool for assessing
brain dysfunction and for detecting early
stages of cognitive pathology.
Additionally, there are some research
findings which demonstrate that
performance of selected CogScreen-AE
measures are related to cockpit
performance, both in a general aviation
simulator and in commercial aviation.

Nonetheless, the agency maintains that
the addition of CogScreen-AE to the
protocol does not make it sufficient to
evaluate pilots as they reach sixty. This
conclusion is based upon two serious
contentions. First, the FAA notes that
CogScreen-AE has not been sufficiently
validated for the use proposed in the
pilots’ protocol. The research to this
point does not provide a sufficient basis
for determining which CogScreen-AE
measures and what level of performance
indicate that a person has brain
dysfunction that renders the individual
unfit to serve as a captain. The FAA
points out that with the exception of the
initial set of validation studies, there
is little additional empirical evidence
concerning the degree to which CogScreen-
AE is sensitive to alterations in brain
functioning associated with substance
abuse, trauma, or other illness.

Yet even more troubling to the FAA, the
petitioners offer essentially no
discussion or analysis of how CogScreen-
AE was used to evaluate these
petitioners, and the agency suggests that
there are serious questions as to how it
was in fact used. According to the FAA,
it is not clear, for example, what scores
on what portions of CogScreen-AE would
have proved unsatisfactory to the panel.
The agency notes that, in one instance,
the panel recommended a certain fifty-
four year-old pilot be granted an
exemption even though that person had
three scores on CogScreen-AE which placed
him below the fifth percentile, and four
scores which placed him below the
fifteenth percentile for speed. While the
psychologist administering the test
considered the pilot normal, the pilot’s
results denoted that he had scored lower
than eighty percent of the pilots in the
fifty-five to seventy normative age
group. Furthermore, the FAA notes that
the panel considered the Logistic
Regression Probability Value ("LRPV").
While the Professional Manual of
CogScreen-AE cautions against the use of
LRPV, the panel disregarded that warning,
as using logistic regression to estimate
the probability of brain dysfunction is
one of several ways to interpret
CogScreen-AE scores. Nevertheless, the
panel recommended certain pilots for
exemptions whose LRPV’s suggested a high
probability of brain dysfunction./5
Finally, the FAA also suggests that it
was error for the Age Sixty Exemption
Panel to examine pilots’ scores in
relation to pilots ages fifty-five
through seventy, as the purpose of
testing is to assess a respondent’s
absolute level of ability in relation to
the total population of pilots. As one
report which cautions against the use of
such age-adjusted scores correctly points
out, older pilots do not have the benefit
of landing on age- corrected runways.

We do not doubt that in the future,
CogScreen-AE, and similar testing
batteries may be sufficient gauges
forassessing the abilities of pilots past
the age of sixty. However, at this early
stage, there is quite simply no evidence
in the research literature that allows
the FAA to establish a CogScreen-AE score
or set of scores to identify when a pilot
is incapable of safely operating an
aircraft, nor is there evidence that
CogScreen-AE provides an appropriate set
of cognitive/psychomotor measures for
making this prediction. Furthermore,
there is limited empirical information
available to allow for the use of
CogScreen-AE as a clinical tool for
adequately determining whether a pilot
may have brain damage, especially an
older pilot.

As for the application of CogScreen-AE
in this case, we believe that the
individual problems in testing noted
above call into question the validity of
the entire CogScreen-AE examination
here./6 That certain pilots could
obtain scores that suggest a high
probability of brain dysfunction, and
still be qualified for exemptions, is
highly suspect. Further, if a pilot, age
fifty-four, scores below the twentieth
percentile of a normative group of pilots
age fifty-five through seventy, and is
still certified as normal, we must
question what pilot would not be
considered by the panel as worthy of an
exemption. Even a test which has been
established as an accurate predictor of
future performance in a given field loses
all predictive value when the benchmark
becomes taking the examination, rather
than attaining some minimum score. Here,
while there is no doubt that the FAA
views CogScreen-AE in high regard, absent
established andexplained cutoffs, the
agency is correct to dismiss the Age
Sixty Exemption Panel’s reliance on the
test.

Ultimately, we find that substantial
evidence supports the FAA’s finding that
CogScreen-AE is not, at this point, an
adequate cognitive tool for determining
whether an exemption to the Age Sixty
Rule is warranted. Far from ignoring
CogScreen-AE, the FAA actually developed
the test. Yet, it has determined that, at
present, the test is properly utilized in
the medical recertification evaluation of
pilots with known or suspected
neurological and/or psychiatric
conditions. The FAA has consistently
maintained that unlike other medical
conditions, certain cognitive disorders
are incapable of detection. That
assertion has been at the heart of the
agency’s justification of its more
liberal exemption policy with regard to
younger pilots with known medical
conditions. As recently as above, we
accepted that the petitioners had not met
their burden in disproving that
distinction. Thus, we cannot say that the
distinction is irrelevant here. We find
it rational to suggest that a test’s
results may be more authoritative when
the test is administered to detect the
effects of a known ailment on a subject,
rather than when it is used as an all-
inclusive diagnostic tool. Of course, in
keeping in line with the requirement that
the agency consider new advances, we
expect that the FAA will continue to
examine CogScreen-AE to determine whether
it can be a sufficient tool for assessing
pilots, and if so, what scores would be
sufficient to allow for the granting of
exemptions.

C. Accident Studies

In Aman, the petitioning pilots argued
that any undetected aging decrements or
increased risks of incapacitation that
accompanied pilots sixty and over were
offset by the added experience that
attends to pilots of that age. See 856
F.2d at 952. As a result, according to
the petitioners, the granting of
exemptions to selected pilots over sixty
would not only "provide a level of safety
equal to that provided by the rule from
which the exemption is sought," 14 C.F.R.
sec. 11.25(b)(5), but actually cause a
net decrease in the risk of accidents.
Thus, the petitioners argued that the
FAA, in denying the requested petition
for exemptions, had not presented
substantial evidence to support its
antithetical conclusion--namely, that
granting selected exemptions would result
in a net decrease in safety. After noting
that the agency had responded to
petitioners’ evidence on experience with
an "offhand dismissal," the court
remanded the matter, concluding that the
FAA had failed to present findings of
fact supported by substantial evidence or
set forth a rational connection between
the facts found and the choice made.
Aman, 856 F.2d at 955.

On remand, the FAA again refused to
grant the exemptions. In Baker, we thus
examined a second time whether
substantial evidence supported the FAA’s
conclusion that the added experience of
pilots over sixty compensates for any
risks that accompany having pilots of
that age flying. While we noted that the
petitioners had made some suggestive
anecdotal showings and presented expert
opinion evidence, we concluded that they
had been unable to develop a persuasive
statistical record comparing average
risks for pilots in various relevant age
categories. See Baker, 917 F.2d at 320.
Though the FAA’s contrary evidence was no
more persuasive than that of the
petitioners, see id. at 320-21, it was
the petitioners’ burden to present
persuasive evidence that granting the
exemptions would not impair safety, id.
at 322. Having failed to meet their
burden, we cautiously upheld the agency’s
determination.

Recognizing the precedential hurdle that
the Baker decision poses to their claim,
petitioners here suggest that since that
opinion, two "critical events" have
occurred which have supplied the
persuasive statistical record that was
found lacking in Baker. First, the pilots
put forth that the FAA has admitted that
it was aware from the beginning that the
Flight Time Study upon which it supported
its position in Baker contained major
data deficiencies and could not be used
to support any position. Second, they
contend that the Hilton System Study,
together with studies conducted by George
W. Rebok and the Chicago Tribune, prove
unequivocally that aviation accident
rates do not go up with pilot age through
the sixties.

In presenting their argument,
petitioners create the impression that
our decision in Baker was clouded by a
mistaken conviction that the Flight Time
Study was an impeccable accident
experience report. However, a quick
perusal of our Baker decision elucidates
that we were under no such illusion.
Though we need not rehash all of the
shortcomings of the Flight Time Study,
from the beginning, we noted that the
report "has serious flaws," including,
but not limited to, understating the
accident rates for pilots over sixty, and
grouping all pilots in a ten-year age
cohort into a single statistic. See 917
F.2d at 321-22. Furthermore, we outright
stated that "[n]umerous comments of
record from various experts, even some
from the FAA, state that the study should
not be relied on as determinative--or
even probative--on the question of the
continued validity of the Age Sixty Rule.
As discussed infra, even if the study is
relevant, it is only of very limited
usefulness." Id. at 321 n.1 (emphasis
added). Notwithstanding the failures of
the Flight Time Study, we concluded that
the FAA’s evidence must be characterized
as substantial, even though it might not
be considered compelling. Id. at 322.
Petitioners have failed to explain how
the FAA’s awareness of the deficiencies
in the Flight Time Study--incidentally, a
fact that we were aware of in Baker--
impacts our substantial evidence inquiry.
While perhaps the petitioners would will
that we grant them their exemptions
because of the agency’s purported unclean
hands, we believe it inappropriate to
base decisions of great public safety on
such factors.

Thus, we must turn our attention to the
truly new evidence which petitioners have
put forth in support of their position--
the results from the 1993 Hilton System
Study, the Rebok Study, and the Chicago
Tribune Study. The first of these
studies, the Hilton Study, examined
accident data for pilots in Part 91, 121,
and 135 operations holding Class I, Class
II, and Class III medical certificates.
The study, which was discussed
extensively in the FAA’s 1995 decision
not to alter the Age Sixty Rule, see 60
Fed. Reg. 65,978, 65,981-83, concluded
that there was "no hint of an increase in
accident rate for pilots of scheduled air
carriers as they neared their 60th
birthday." And though the study rec-
ognized that there was no available data
regarding Part 121 pilots beyond the age
of sixty, the study suggested that the
FAA could cautiously increase the
retirement age of pilots to sixty-three.
The second study, which was conducted in
1999 by a group of scientists headed by
Professor George Rebok of the
distinguished Johns Hopkins University,
examined pilots ages forty-three through
sixty who flew air carrier and air taxi
operations. Similar to the Hilton Study,
the Rebok Study concluded from the data
that there were no significant age
differences in the pilot performance
factors contributing to aviation crashes.
Finally, a study conducted by the Chicago
Tribune, in collaboration with
Northwestern Professor Ian Savage,
demonstrated that air carrier
accident/incident rates for the years
1990-1999 declined among pilots over
fifty-five years of age.

In explaining its decision not to rely
on the reports submitted by the
petitioners, the FAA points out various
flaws with these studies. With regard to
the Hilton Study, the FAA contends that
the study does not address the basic
concern of how to identify and predict
age-related decline in pilot performance.
The agency further notes that the study’s
conclusions regarding age sixty pilots
were based largely upon accident data
from air carrier operations. However, pi
lots who fly cargo transports, according
to the agency, have different flying
patterns which may subject them to lesser
levels of fatigue and stress. Because
accidents in air carrier operations are
rare, and factors such as seniority
bidding on more desirable routes
precludes developing meaningful
statistics regarding the effects of
aging, the FAA suggest that caution
precluded reliance on that study as
justification for granting exemptions.
See Professional Pilots Fed’n, 118 F.3d
at 769. Likewise, the FAA has determined
that the Rebok Study is not an
appropriate basis for making decisions
relating to the Age Sixty Rule. That
conclusion was reached in part upon the
FAA’s observation that the Rebok Study
itself suggests that the role of
cognition and other causative factors in
the flight performance of older pilots
needs further empirical study. As for the
Chicago Tribune Study, the FAA has
pointed out that a study which attempted
to replicate the newspaper’s analysis
noted that the original study contained
errors and did not clearly identify the
source of its data. See Dana Broach,
Pilot Age and Accident Rates: A Re-
analysis of the 1999 Chicago Tribune
Report and Discussion of Technical
Considerations for Future Analyses, FAA
Civil Aeromedical Institute (Dec. 23,
1999). Thus, according to the agency, it
was well within its discretion in not
relying on the study as a justification
for granting the exemptions.

But more generally, the FAA has proposed
that all accident studies (including
those relied upon by the petitioners) are
inherently flawed. The agency notes that
the major deficiency in all accident
studies is that such analyses must rely
upon surrogate data that does not reflect
the reality and actual operating
conditions and procedures of Part 121
operations, as there are no pilots over
sixty that fly in Part 121 operations.
While we, as a matter of first
impression, might have concluded that the
surrogate data was sufficiently
comparable to Part 121 operations to
allow for meaningful analysis, the FAA
has determined otherwise, and we have
accepted its determination. In reviewing
the agency’s denial of the petition for
exemptions in Baker, we recognized that
by its insistence on precise data, the
FAA had in a certain sense insulated
itself from attack. See Baker, 917 F.2d
at 322. "Admittedly, petitioners in this
case face a Catch-22: from one
perspective they cannot get exemptions
until they show they can fly large
passenger aircraft[s] safely, and they
cannot show they can fly such planes
safely until they get exemptions." Id.
While it may seem unfair that by virtue
of the Age Sixty Rule these pilots are
being denied the opportunity to prove
that they warrant exemptions,
nevertheless, it is the petitioners’
burden to present persuasive evidence
that granting exemptions would not impair
safety. If the FAA was justified in
imposing the Age Sixty Rule in the first
place, then we cannot say that simply
because it is the rule itself which
blocks the generation of data necessary
to consider the propriety of granting
exemptions to the rule, that it was
unreasonable for the FAA to find that it
lacks that data. See Professional Pilots
Fed’n, 118 F.3d at 770. While certainly,
if the FAA were to begin granting
exemptions, it, and we, would be better
able to resolve the question before us.
However, in this crucial area of public
safety, we have accepted the FAA’s
conclusion that it needs precise data.
The petitioners have not provided, as was
their burden, strong evidence that the
added experience of pilots sixty and over
clearly neutralizes the danger of sudden
incapacitation and deterioration of
piloting skills associated with the aging
process. Absent this required evidence,
we must defer in these circumstances to
the expert agency. Baker, 917 F.2d at
322. We find that the FAA, in accordance
with our directive, has kept abreast of
and considered new studies and advances
in medical technology. See Starr, 589
F.2d at 314. Thus, we cannot conclude the
FAA abused its discretion in not granting
these exemptions on the basis of the
aforementioned accident studies./7

III. CONCLUSION

We recognize that the FAA’s requirements
for granting exemptions to the Age Sixty
Rule are so demanding that if the agency
had initially chosen an age fifty cutoff,
pilots above that age would have
difficulty meeting those standards. Yet,
the rigorous nature of the FAA’s
exemption requirements is not pertinent
at this juncture. Our inquiry is limited
to examining whether the FAA has
appropriately considered the evidence,
and provided sufficient justifications
for its decisions. We cannot say that the
FAA has failed to take into account new
advances in medical technology. The fact
that the agency (1) commissioned the
Hilton System Study, and (2) developed
and utilizes the CogScreen-AE in
certifying pilots for flight shows that
the agency has not shirked its obligation
to keep current with medical progress.
Yet given the fact the FAA has
nevertheless denied every petition for
exemption, an argument could be made that
the FAA has examined these studies and
protocols only to satisfy the burden
which we have placed on the agency.
However, that would require that we delve
into the motivations of the agency, an
inappropriate inquiry under our
deferential standard of review. While our
review of the evidence submitted by the
petitioners might lead us to conclude
that a strict age sixty cutoff, without
exceptions, is a rule better suited to
1959 than to 2001, this court is not an
expert in aerospace medicine, and
Congress did not endow this court with
the duty to make such a policy judgment.
See Starr, 598 F.3d at 314. The FAA has
the discretionary power to establish a
rigid policy, whereby no exemptions are
granted, until it is satisfied that
medical standards can demonstrate an
absence of risk factors in an individual
sufficient to warrant a more liberal
exemption policy from the Age Sixty Rule.
Until the FAA determines that such
standards exist, it may adhere inflexibly
to a rule whose validity has been upheld
by the courts and reevaluated by
Congress, so long as it continues to
consider, as we are satisfied it has done
here, new advances in medical technology.
Id.

For the foregoing reasons, we Affirm the
decision of the district court.

FOOTNOTES

/1 Most recently, the Professional Pilots Federa-
tion, a group devoted to abolishing the Age Sixty
Rule, brought suit against the FAA in the D.C.
Circuit, claiming that the Age Sixty Rule vio-
lates the Age Discrimination and Employment Act
("ADEA"), 29 U.S.C. sec. 621 et seq. See Profes-
sional Pilots Fed’n, 118 F.3d at 758. The court
denied the Federation’s challenge, holding that
nothing in the ADEA could be read to restrict the
FAA from making age a criterion for employment
when it acts in its capacity as the guarantor of
public safety in the air.

/2 We recognize, however, that the distinction
between the request for an exemption and the
validity of the rule itself is a bit muddied.
Were we to grant the petitioners’ requests for
exemptions, resolving that the evidence relied
upon by the FAA could not support the age limita-
tion, we would ipso facto be voiding the Age
Sixty Rule itself, replacing it with a system of
individualized testing for pilots who wish to fly
beyond the age of sixty.

/3 To qualify as a commuter plane, the airplane had
to have a passenger-seating configurations of 30
seats or less and 7,500 pounds or less payload
capacity. The regulating of commuter planes was,
until 1995, conducted under Part 135--considered
less restrictive than Part 121, which provides
the safety protocols for all major air carriers.

/4 Indeed, the petitioners’ sole justification for
considering this evidence "new" is that they have
included data from years subsequent to that of
the Baker decision. While we cannot deny that the
FAA has increased the frequency with which it
grants under-sixty pilots with disqualifying
medical conditions exemptions, that fact does not
alter our analysis.

/5 Throughout their examinations, the panel sought
to explain low testing scores by noting that
CogScreen-AE results are likely to underestimate
the ability of pilots to perform familiar jobs.
We agree with the FAA that an important (and
perhaps the most important) aspect of cognitive
function in pilots is the ability to respond to
novel emergency situations in flight, and thus
scores that may indicate a pilot’s inability to
function well in novel situations should not be
lightly dismissed.

/6 Petitioners dismiss the individual problems noted
by the FAA, claiming that the FAA retains the
right not to grant any specific exemptions. While
certainly the FAA has that power, we believe that
the concerns noted by the FAA call into question
the overall use of CogScreen-AE by the panel.

/7 We note in passing that the pilots suggested in
their petition for exemptions that the Age Sixty
Rule has created a significant shortage in expe-
rienced pilots. In this review, petitioners have
all but abandoned that argument as a justifica-
tion for granting these exemptions, and we be-
lieve that they were wise to do so. The petition-
ers have not presented any statistics to show
that the Age Sixty Rule has played a significant
role in any potential pilot shortage. Further,
even assuming that the Age Sixty Rule has con-
tributed to the pilot shortage, we agree with the
FAA that potentially reducing safety standards is
not an appropriate method of addressing the
issue.