Grant Adams, et al v. USA, et al

Filing

OPINION filed [1442504] (Pages: 34) for the Court by Judge Brown [12-5026]

USCA Case #12-5026

Document #1442504

Filed: 06/21/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2012

Decided June 21, 2013
No. 11-7142

GEORGE EMORY, ET AL.,
APPELLANTS
v.
UNITED AIR LINES, INC., A CORPORATION AND WHOLLY
OWNED SUBSIDIARY OF UAL CORPORATION AND AIR LINE
PILOTS ASSOCIATION,
APPELLEES
UNITED STATES OF AMERICA,
INTERVENOR

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02227)

No. 12-5026
GRANT O. ADAMS, ET AL.,
APPELLANTS
TROY G. AVERA, ET AL.,
APPELLEES
v.

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UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01646)

John S. Lopatto III argued the cause and filed the briefs
for appellants in Case No. 11-7142.
Granville C. Warner argued the cause for appellee Air
Line Pilots Association International in Case No. 11-7142.
Gary S. Kaplan argued the cause for appellee United Air
Lines, Inc. in Case No. 11-7142. With them on the brief were
Marta Wagner and Eric Jansen. Jonathan A. Cohen entered
an appearance.
Jonathan Turley argued the cause and filed the briefs for
appellants in Case No. 12-5026.
Edward Himmelfarb, Attorney, U.S. Department of
Justice, argued the cause for appellees in Case No. 12-5026.
With him on the brief were Stuart F. Delery, Acting Assistant
Attorney General, Ronald C. Machen Jr., U.S. Attorney, and
Michael Jay Singer, Attorney.
Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.

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BROWN, Circuit Judge: With the enactment of the Fair
Treatment for Experienced Pilots Act of 2007 (“FTEPA” or
“Act”), Pub. L. No. 110-135, 121 Stat. 1450, Congress
repealed the Federal Aviation Administration’s (“FAA”)
long-contested “Age 60 Rule” and extended the maximum
age for piloting commercial flights by five years to 65.
FTEPA marked a significant victory for opponents of the old
regime, but not everyone was satisfied. Under the Act’s
nonretroactivity provision, 49 U.S.C. § 44729(e)(1), pilots
who had turned 60 prior to FTEPA’s enactment date and did
not qualify for either one of two narrowly drawn statutory
exceptions would be denied the benefits of the Age 65 Rule
and, as was often the case, terminated.
Denied these extra years of employment as commercial
pilots, the aggrieved over-60 pilots sued. Plaintiffs in Adams
v. United States, 796 F. Supp. 2d 67 (D.D.C. 2011),
challenged the constitutionally of the nonretroactivity and
protection-for-compliance provisions as well as FAA’s
implementation of them.1 By contrast, plaintiffs in Emory v.
United Air Lines, Inc., 821 F. Supp. 2d 200 (D.D.C. 2011),
supplemented their constitutional objections with a number of
state and federal claims against their employer, United Air
Lines (“United”), and their union, Air Line Pilots Association
(“ALPA”), for advancing allegedly discriminatory
interpretations of the nonretroactivity provision they knew —
or should have known — to be incorrect. The District Courts
1

A previous panel of this Court dismissed Adams’s original
suit, a petition for review of an FAA order denying pilots
exemptions from the Age 60 Rule, as moot under the then-recently
enacted FTEPA. See Adams v. FAA, 550 F.3d 1174, 1176 (D.C.
Cir. 2008) (“The Act, which expressly abrogates the Age 60 Rule,
moots the petitions for review of the orders denying exemption
from the Age 60 Rule.”).

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in both cases found in favor of the defendants, see Adams,
796 F. Supp. 2d at 80; Emory, 821 F. Supp. 2d at 243, and the
present appeals followed.2
Believing as we do that FTEPA passes constitutional
muster and should be interpreted as the Emory defendants
have done, we affirm the District Courts’ judgments as to all
claims not dismissed as moot.
I. BACKGROUND
First implemented in 1959, FAA’s so-called Age 60 Rule
barred any person 60 years of age or older from serving as a
pilot in flights conducted under Part 121 of the Federal
Aviation Regulations. See 14 C.F.R. § 121.383(c) (2007).3
Although the Rule survived nearly a half-century’s worth of
challenges in federal courts, see, e.g., Prof’l Pilots Fed’n v.
FAA, 118 F.3d 758 (D.C. Cir. 1997), institutional support for
the age 60 ceiling dwindled. In 2006, the International Civil
Aviation Organization (“ICAO”) revised the maximum age
2

“Although this court did not formally consolidate the
separate appeals[,] . . . they were argued on the same day before the
same panel, and we find it convenient to dispose of both appeals
with a single opinion.” Hunt v. United States, 636 F.2d 580, 583 n.5
(D.C. Cir. 1980).
3

“Part 121 governs the operations of most commercial
airlines.” See Jones v. ALPA, 642 F.3d 1100, 1102 (D.C. Cir.
2011); see also 14 C.F.R. § 121.1. The Age 60 Rule did not extend
to certain non-commercial flights, including “Part 91” flights, often
called “non-revenue or company flights,” Emory Appellants’ Br. 7,
and applied only to captains and first officers, not certain other
crew members such as flight engineers. See TWA v. Thurston, 469
U.S. 111, 115 n.3 (1985).

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from 60 to 65 for certain pilots in international operations.
FAA responded by establishing the Age 60 Aviation
Rulemaking Committee (“ARC”) to make recommendations
regarding the adoption of the ICAO standard, but the
“polarized” Commission, with its 17 members “representing
pilot unions, airlines, the aeromedical community, and the
FAA,” AGE 60 AVIATION RULEMAKING COMMITTEE, REPORT
TO THE FEDERAL AVIATION ADMINISTRATION 1, 31 (Nov. 29,
2006), agreed on just one thing: “Any change to the Age 60
Rule should be prospective.” Id. at 31.
Undeterred by the false start, FAA soldiered on. In
January 2007, the agency announced it would amend the Age
60 Rule. Congress, however, preempted this rulemaking with
the passage of FTEPA in December 2007. Among other
changes, FTEPA abrogated the Age 60 Rule as of the Act’s
December 13, 2007, enactment date and replaced it with a
new ceiling colloquially referred to as the “Age 65 Rule.” 49
U.S.C. § 44729(d). Crucially, Congress gave the Age 65 Rule
entirely prospective effect with just two exceptions. As
codified in the Act’s “Nonretroactivity” provision, id.
§ 44729(e)(1), an over-60 pilot that served as a “required
flight deck crew member” (“RFDCM”) on December 13,
2007, id. § 44729(e)(1)(A), or was subsequently hired as a
new pilot without seniority, id. § 44729(e)(1)(B), could return
to piloting Part 121 flights until age 65.
A safe harbor provision entitled “Protection for
compliance” prevents any “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]” from
“serv[ing] 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.” Id. § 44729(e)(2).

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II. ADAMS V. UNITED STATES
A. OVERVIEW
The approximately 200 Adams plaintiffs can be split into
two classes: (1) pilots who turned 60 and were retired under
the Age 60 Rule some months or years before the December
13, 2007, enactment date,4 and (2) pilots who turned 60
between December 1 and 12, 2007, but remained in the air
carrier’s employ until December 31.5 Together they bring a
veritable litany of constitutional and Administrative
Procedure Act (“APA”) claims against FTEPA’s
nonretroactivity and protection-for-compliance provisions as
well as FAA’s purportedly arbitrary and unlawful
implementation of the two. See Adams Compl. ¶¶ 310–98.
Although initially justiciable, the passage of time has called
into question our ability to provide effective relief in this suit
against the government. We turn to that threshold issue now.
B. MOOTNESS
An old axiom reminds us that time and tide wait for no
4

Curiously, the complaint also names pilots who were over 65
on December 13, 2007, Adams Compl. ¶ 17, as well as those who
had not yet turned 60, Adams Compl. ¶¶ 52, 62. Whatever the
explanation, we think it clear that these pilots are without standing
to challenge a nonretroactivity provision that caused them no
injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992).
5

This latter class includes George V. Emory and Lorenzo M.
Sein, plaintiffs in the companion case. Adams Compl. ¶¶ 70, 188;
Emory Compl. ¶¶ 12(d); 12(f).

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man. Or pilot, we add.
The window on the nonretroactivity provision closed
December 13, 2012, the five-year anniversary of the Act’s
enactment. On that date, every pilot for whom the prohibition
against retroactivity (and the exemptions thereto) would have
applied — pilots aged 60 to 64 the day FTEPA took effect —
would have turned 65.6 We can now say with mathematical
certainty that all members of this temporally circumscribed
class are disqualified under the Age 65 Rule from ever
piloting Part 121 flights.7 Restated, as of December 13, 2012,
no pilot will ever be kept from — or allowed to return to —
piloting Part 121 flights by operation of § 44729(e)(1).
The government’s supplementary filing, submitted
shortly after the five-year anniversary, urged us to dismiss the
Adams appeal as moot. See Adams v. United States, No. 125026, Doc. No. 1410861 (D.C. Cir. Dec. 18, 2012)
(“Mootness Memo”). The government attacks Adams’s
complaint for failing to allege any cognizable relief,
explaining the case is moot “because the plaintiffs seek only
equitable relief. Despite their scattered references to damages
in their brief, damages are, of course, unavailable under the
6

Those who had not yet turned 60 as of December 13, 2007,
would have aged seamlessly into FTEPA’s Age 65 regime; those
65 and older would have already aged out. So viewed, this targeted
provision might be best understood as a stopgap measure designed
to aid in the transition from the Age 60 to the Age 65 Rule.
7

Plaintiffs have not challenged the constitutionality of
Congress’s decision to use 65 as the maximum flying age. See
Adams Reply Br. 16 (“[T]he statutory provision being challenged is
the seniority-stripping provision of the FTEPA, not the adjustment
of the maximum flying age to 65.”).

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APA, and there is no waiver of sovereign immunity to support
an award of damages upon a declaration that a statute is
unconstitutional.” Id. at 3–4. Plaintiffs respond with nearly a
dozen rapid-fire arguments in the hope that one sticks, see
Adams v. United States, No. 12-5026, Doc. No. 1413923
(D.C. Cir. Jan. 7, 2013), and the government’s reply
effectively doubles down on earlier arguments, see Adams v.
United States, No. 12-5026, Doc. No. 1415502 (D.C. Cir. Jan.
16, 2013). We think the government only partially correct.
*

*

*

“A case becomes moot only when it is impossible for a
court to grant any effectual relief whatever to the prevailing
party.” Knox v. Serv. Employees Int’l Union, Local 1000, 132
S. Ct. 2277, 2287 (2012) (internal quotation marks omitted).
“As long as the parties have a concrete interest, however
small, in the outcome of the litigation, the case is not moot.”
Id. (internal quotation marks and brackets omitted).
Although the government has made a strong conceptual
case for mootness on Adams’s facts, we cannot say resolution
of this jurisdictional issue is so cut-and-dried. Absent from the
government’s analysis is a discussion of Emory, the
companion case with two overlapping plaintiffs. See supra
n.5. The Emory plaintiffs did appeal the District Court’s
dismissal of their constitutional challenges to FTEPA, see
Emory, 821 F. Supp. 2d. at 219–24, but rather than brief the
issues in full, chose instead to incorporate by reference
Adams’s arguments on these issues, see Emory Appellants’
Br. 5 n.1; Emory Appellants’ Br. 57. As a direct consequence
of this litigation strategy, certain constitutional claims appear
in both Adams and Emory. This substantive overlap proves
quite important for mootness purposes.

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In Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998), the Supreme Court acknowledged a narrow
set of circumstances in which a court could “decid[e] the
cause of action before resolving Article III jurisdiction.” Id. at
98. Specifically, where “the merits question [is] decided in a
companion case, with the consequence that the jurisdictional
question could have no effect on the outcome,” courts are free
to “decline[] to decide th[e] jurisdictional question.” Id.
(internal citation omitted). We believe Adams and Emory fall
comfortably within Steel Co.’s parameters. Consequently,
where Emory (1) advances an analogous constitutional claim
and (2) that claim is not moot on Emory’s distinct facts, we
are free to bypass the threshold mootness inquiry in Adams
and reach the merits.
We think the Steel Co. exception applies to Adams’s
equal protection, due process, and bill of attainder claims, all
of which appear in the Emory complaint. Compare Adams
Compl. ¶¶ 352–79, 389–98, with Emory Compl. ¶¶ 94-96.
The only lingering question is whether the claims are moot in
Emory. That is, whether Emory plaintiffs have a concrete
interest in their resolution. We believe they do — an
unsurprising proposition when one considers how Emory,
unlike Adams, named private parties as defendants. Cf.
Mootness Memo at 4 (highlighting the sovereign immunity
issues in Adams where “no former, current, or potential aircarrier employer is a defendant”). To declare the protectionfor-compliance provision unconstitutional would effectively
deprive United and ALPA of FTEPA’s safe harbor. See, e.g.,
Emory, 821 F. Supp. 2d at 218, 243; Emory Appellees’ Br.
30–31.8 Obviously Emory stands to benefit from the
8

Since it would be difficult to determine whether the
protection-for-compliance is unconstitutional without first
determining the scope of “compliance,” we believe plaintiffs’

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elimination of the defendants’ affirmative defense. For this
reason, then, we are free to reach the merits of Adams’s
parallel claims.
We cannot do the same with Adams’s takings claim,
however, because there is no analogous challenge in Emory.
To be sure, the Emory plaintiffs did purport to “incorporate
the . . . Taking . . . arguments . . . made by appellants in
[Adams],” Emory Appellants’ Br. 57, but their complaint
simply failed to make a distinct Fifth Amendment takings
claim.9 Deprived of their Emory crutch, plaintiffs’ takings
claim will only survive if there exists independent grounds to
defeat mootness. Unfortunately for Adams, we see none. Not
even monetary damages are available to plaintiffs here.10
Adams’s remaining challenges to FAA’s interpretation of
FTEPA — the other claims for which there are no analogues
in Emory — meet the same fate. These claims are expressly
claims as to the correct interpretation of § 44729(e)(1) are likewise
ripe for review.
9

The District Court’s silence on the takings issue bears this
point out. Compare Emory, 821 F. Supp. 2d at 208, with Adams,
796 F. Supp. 2d at 73 (“Plaintiffs allege that these provisions
violate . . . the Takings Clause”).
10

While it is true that FED. R. CIV. P. 54(c) allows a court to
grant relief not specifically sought, we cannot save Adams’s claim
by reading the complaint’s boilerplate prayer for “such other relief
as [the Court] may deem just and proper,” Adams App’x 114, as a
request for monetary damages. See Hedgepeth v. WMATA, 386 F.3d
1148, 1152 n.2 (D.C. Cir. 2004) (Roberts, J.); Dellums v. NRC, 863
F.2d 968, 975 n.8 (D.C. Cir. 1988). Even if we could, the Court
lacks jurisdiction to hear such a claim. See 28 U.S.C. § 1295(a)(2);
id. § 1491(a)(1).

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predicated on the APA, which waives sovereign immunity
only for “[a]n action . . . seeking relief other than money
damages.” 5 U.S.C. § 702; see also Albrecht v. Comm. on
Emp. Benefits of Fed. Reserve Emp. Benefits Sys., 357 F.3d
62, 68 (D.C. Cir. 2004); Kidwell, 56 F.3d 279, 283–84 (D.C.
Cir. 1995).11 Having given due consideration to what remains
of Adams’s scatter-shot arguments and found them wanting,
we hold on the unique facts of this case that Adams’s claims
against FAA are likewise moot.
C. ANALYSIS
In Adams as in Emory we review the District Court’s
grant of a motion to dismiss de novo, “accepting the factual
allegations made in the complaint as true and giving plaintiffs
the benefit of all inferences that can reasonably be drawn
from their allegations.” Wagener v. SBC Pension Benefit
Plan-Non Bargained Program, 407 F.3d 395, 401 (D.C. Cir.
2005).
1. Fifth Amendment Equal Protection

11

The complaint challenges FAA’s actions as “unlawful and
subject to be set aside under” 5 U.S.C. § 706, see Adams Compl. ¶¶
325, 335, 340, 346, 351, while the prayer for relief specifically
seeks “damages and reasonable attorneys’ fees and costs incurred in
maintaining this action pursuant to 5 U.S.C. § 706(2)(B),” Adams
App’x 114 (emphasis added). The damages sought are not the sort
of “specific relief” allowed under the APA, see Bowen v.
Massachusetts, 487 U.S. 879, 892–94 (1988), and it is established
in this Circuit that where “the underlying controversy is moot,” a
“request for attorneys’ fees [will not] preserve[] the merits of that
controversy for our consideration.” Monzillo v. Biller, 735 F.2d
1456, 1459 (D.C. Cir. 1984).

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Because age is not a suspect or protected class, it is
entitled only to rational basis review. See, e.g., Kimel v. Fl.
Bd. of Regents, 528 U.S. 62, 83 (2000); Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 314 (1976) (per curiam) (employing
the “relatively relaxed” rational basis standard to age-based
classifications while noting that such legislative action “is
presumed to be valid”).12 Under rational basis review, a
legislative classification “must be upheld against equal
protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313 (1993) (emphases added). The burden of disproving the
rationality of the law falls squarely on plaintiffs. See Hettinga
v. United States, 677 F.3d 471, 478–79 (D.C. Cir. 2012) (per
curiam). That burden has not been met here.
The government defends the Act’s nonretroactivity by
asserting a rational relationship to Congress’s “concern for
workplace harmony, which is a legitimate legislative concern
under federal labor law.” Adams Appellees’ Br. 23. We think
this suffices under the rational basis standard.
Air carriers hired new pilots in anticipation of the Age 60
Rule remaining in effect. Had Congress given FTEPA full
retroactive effect, carriers might have reintroduced a
significant number of over-60 pilots back into the Part 121
12

We decline Adams’s invitation to apply a more stringent
form of review to age classification on the basis of two dissimilar
cases, City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985), and Romer v. Evans, 517 U.S. 620 (1996). Not only do
these cases predate Kimel by 15 and 4 years, respectively, but the
Court in Cleburne made clear that it has “declined . . . to extend
heightened review to differential treatment based on age.” 473 U.S.
at 441.

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workforce with full seniority. Given the hierarchical nature of
airline employment, the influx of senior pilots would have
“bumped” less senior pilots and potentially caused some of
the most junior to be fired. See Avera v. ALPA, 436 Fed.
App’x 969, 975 (11th Cir. 2011); Jones v. ALPA, 713 F.
Supp. 2d 29, 35 (D.D.C. 2010). Congress, it follows, did not
act unreasonably or irrationally in tailoring the retroactive
effect of its legislation to minimize the potential disruption to
labor relations in the airline industry. See, e.g., Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 680 (1987) (highlighting
the “the heavily regulated nature of the [airline] industry”).
Two additional considerations underscore the reasonableness
of the legislature’s actions.
Speaking in favor of the Act, Representative Petri warned
that the United States is “facing a pilot shortage in the near
future” with an estimated “1 billion passengers flying
annually” by 2015. 153 Cong. Rec. H15252-02, 2007 WL
4325399 (daily ed. Dec. 11, 2007). To the extent Congress
thought it necessary to plan for such eventualities, it was
eminently rational to choose the path in which fewer junior
pilots — those who will be around to meet the rising demand
— would be denied experience flying large jets. More
fundamentally, accepting that Congress was free to heed the
advice of the ARC and draft the law prospectively, see E.
Enters. v. Apfel, 524 U.S. 498, 547–48 (1998) (Kennedy, J.,
concurring in the judgment and dissenting in part)
(“[P]rospective economic legislation carries with it the
presumption of constitutionality . . . .”), it would be an odd
thing indeed to hold the legislature has acted irrationally in
attempting to strike a less draconian balance by providing
some measure of protection to over-60 pilots. In short, we
think the District Court properly dismissed the equal
protection challenge.

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2. Fifth Amendment Due Process
“The Constitution does not require all public acts to be
done in town meeting or an assembly of the whole. General
statutes within the state power are passed that affect the
person or property of individuals, sometimes to the point of
ruin, without giving him a chance to be heard.” Bi-Metallic
Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445
(1915). Over a half century ago, at the outset of the Age 60
litigation, the Second Circuit in ALPA v. Quesada, 276 F.2d
892 (2d Cir 1960), applied this longstanding principle to hold
that there could be no procedural due process violation in
FAA’s promulgation of the Age 60 Rule. What was true of
the original rule then is no less true of FTEPA’s
nonretroactivity provision today: it was “the very antithesis of
adjudication; it was the formulation of a general rule to be
applied to individual pilots at a subsequent time.” Id. at 896.
Thus, even assuming plaintiffs have a cognizable property
interest, we agree with the District Courts that the procedural
due process objections are meritless. See Adams, 796 F. Supp.
2d at 75; Emory, 821 F. Supp. 2d at 221–22; Jones, 713 F.
Supp. 2d at 36–37.
For the reasons discussed in the equal protection
discussion, supra Section II.C.1., the substantive due process
challenges likewise fail. See Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 15 (1976) (“It is by now well established that
legislative Acts adjusting the burdens and benefits of
economic life come to the Court with a presumption of
constitutionality, and that the burden is on one complaining of
a due process violation to establish that the legislature has
acted in an arbitrary and irrational way.”); see also Am. Fed’n
of Gov’t Emps., AFL-CIO v. United States, 330 F.3d 513, 523
(D.C. Cir. 2003); Jones, 713 F. Supp. 2d at 37 n.7. This
“doctrine normally imposes only very slight burdens on the

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government to justify its actions” and those burdens have
been met. George Washington Univ. v. Dist. of Columbia, 318
F.3d 203, 206 (D.C. Cir. 2003).
3. Bill of Attainder
A law is an impermissible bill of attainder “if it (1)
applies with specificity, and (2) imposes punishment.”
Foretich v. United States, 351 F.3d 1198, 1217 (D.C. Cir.
2003) (internal quotation marks omitted). The court below
never addressed the specificity requirement, choosing instead
to resolve the matter on the second prong. See Adams, 796 F.
Supp. 2d at 77. We follow suit.
To determine whether a statute imposes punishment, we
ask:
(1) whether the challenged statute falls within the
historical meaning of legislative punishment; (2)
whether the statute, “viewed in terms of the type and
severity of burdens imposed, reasonably can be said to
further nonpunitive legislative purposes”; and (3)
whether the legislative record “evinces a congressional
intent to punish.”
Foretich, 351 F.3d at 1218 (quoting Selective Serv. Sys. v.
Minn. Pub. Interest Research Grp., 468 U.S. 841, 852
(1984)). Although the second factor tends to be “the most
important,” each could serve as an “independent — though
not necessarily decisive — indicator of punitiveness.” Id. at
1218. Let us consider the three in turn.
First, we find no merit to Adams’s initial effort to classify
FTEPA as a barrier to employment, “a classic historical form
of punishment.” Adams Appellants’ Br. 50. Although correct
on the history, see Selective Serv. Sys., 468 U.S. at 852 (Bill

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of Attainder Clause “has expanded to include legislative bars
to participation by individuals or groups in specific
employments or professions”), Adams overstates his case.
FTEPA is readily distinguishable from the paradigmatic
“barrier” cases as they have been described by the Supreme
Court.13 The Act did not prevent pilots between the ages of 60
and 65 from seeking and obtaining employment in Part 121
operations; it provided them with an opportunity to return as
pilots on Part 121 flights, albeit without seniority.14 Nor did
FTEPA prevent over-60 pilots from accepting employment
with international carriers or looking elsewhere for similar
13

In a string cite, the Supreme Court in Selective Service
Systems identified those cases as follows:
See, e.g., United States v. Brown, 381 U.S. 437 (1965), in
which Communist Party members were barred from offices
in labor unions; United States v. Lovett, 328 U.S. 303
(1946), in which the law in question cut off salaries to three
named Government employees; Cummings v. Missouri, 4
Wall. 277 (1867), in which a priest was disqualified from
practicing as a clergyman; and Ex parte Garland, 4 Wall.
333 (1867), in which lawyers were barred from the practice
of law.
468 U.S. at 852 n. 9.
14

Likely cognizant of this shortfall in his argument, Adams
presses the point that FTEPA “effectively bars senior pilots from
employment.” Adams Appellants’ Br. 50 (emphasis added). It is
“no surprise,” Adams argues, “that only roughly one percent of the
affected pilots have been re-hired and others have had to move to
third-world countries to find employment.” Id. at 51. But even if
just one percent were rehired under § 44729(e)(1)(B) to pilot Part
121 flights, that is one percent more than would have otherwise
been allowed to do so under the old Age 60 Rule.

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work. At bottom, there were more piloting opportunities
available for over-60 pilots on December 14, 2007, the day
after FTEPA went into effect, than December 12, 2007, the
day before. If Congress intended the legislation to serve as a
barrier to employment, it failed miserably by doing the very
opposite: increasing and extending employment opportunities.
This notion of FTEPA as benefit-conferring — the
government’s leitmotif on appeal — goes a long way to
resolve the second, functional factor as well. Under this
prong, courts “must consider whether the law under
challenge, viewed in terms of the type and severity of burdens
imposed, reasonably can be said to further nonpunitive
legislative purposes.” Foretich, 351 F.3d at 1220 (internal
quotation marks omitted). Although over-60 pilots would
have doubtless preferred fully retroactive legislation, there is
no reason to believe they were entitled to it. From this
perspective, we are hard pressed to conclude on these facts
that FTEPA somehow imposes an impermissible “burden,”
never mind fails to advance a legitimate legislative purpose.15
As to the third and final prong, we ask whether the
legislative record “evinces a congressional intent to punish.”
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 478 (1977).
Rejecting Adams’s arguments to the contrary, the court below
concluded “there is simply no indication in the ‘legislative
record’ of an intent to punish.” Adams, 796 F. Supp. 2d at 78.
We concur. Not only is it unreasonable in light of the above
discussion to say that Congress operated with animus because
it conferred only a partial benefit to over-60 pilots, but the
15

We reserve for a future case the question of whether a law
fashioned as benefit-conferring could ever be deemed an
unconstitutional bill of attainder under the Supreme Court’s
functional test.

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legislative record fails to reveal any malicious intent. To the
contrary, speakers such as Representative Oberstar, sponsor
of FTEPA, celebrated senior pilots and even moved to
expedite the legislation so fewer pilots approaching 60 would
find themselves on the opposite side of the retroactivity line.
See 153 Cong. Rec. H15252-02. Such effusive praise, of
course, could only be expected in the debates for the Fair
Treatment for Experienced Pilots Act.
Finding no impropriety under any of the three factors, we
reject the bill of attainder claim.16
III. EMORY V. UNITED AIR LINES, INC.
A. OVERVIEW
The eight Emory plaintiffs are former pilots for defendant
United Air Lines who turned 60 between December 1 and
December 11, 2007, just days before FTEPA’s December 13
enactment. Although United removed plaintiffs from their
Part 121 flying duties pursuant to the then-operational Age 60
Rule, it was defendant United’s custom and practice to allow
outgoing pilots to remain employed until the last day of their
birth month. Emory Compl. ¶ 20. From their birthdays to their
16

Emory’s appellate briefing departs from the complaint to
bring a second, “distinct” bill of attainder challenge criticizing the
District Court’s application of § 44729(e)(1)(A) insofar as it
allegedly benefits flight engineers at plaintiffs’ expense. Emory
Appellants’ Br. 5 n.1; see also Emory Appellants’ Br. 56–57 (“This
[pro-flight engineer] holding by the District Court applying FTEPA
amounts to quintessential violation of the Bill of Attainder
prohibition.”). We read this as a narrowing gloss, a suggestion that
the statute was even more discriminatory than previously thought. It
does not, however, change the analysis.

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“involuntar[y] terminat[ion]” on December 31, it follows,
plaintiffs were certified pilots with “unchanged seniority
numbers” in United’s employ. Emory Compl. ¶ 19(c).
Pointing to these curious circumstances, plaintiffs believe
themselves entitled to the benefits of the Age 65 Rule that
governed the final weeks of their employment. In their view,
they satisfied § 44729(e)(1)(A), the first exemption to
FTEPA’s nonretroactivity provision, because it requires only
that the exempted pilot be “in the employment of” an air
carrier, which they claim they were. Emory Compl. ¶ 21(c).
To the extent United and ALPA advocated a contrary
interpretation, plaintiffs contend, they did so discriminatorily
in violation of a host of state and federal laws. We turn to the
interpretive question first.
B. ANALYSIS
1. Interpretive Merits
FTEPA admits of two exceptions to the general
prohibition on retroactive application:
(e) (1) Nonretroactivity. 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 —
(A) 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; or
(B) Such person is newly hired by an air carrier
as a pilot on or after such date of enactment

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without credit for prior seniority or prior
longevity for benefits . . . .
49 U.S.C. § 44729 (e)(1)(A)–(B).
The Emory plaintiffs interpret the “in such operations”
language in § 44729(e)(1)(A) to modify the term “carrier,”
not “person.” This is significant. If the carrier — and only the
carrier — need be engaged in Part 121 operations on the
enactment date for the exemption to attach, presumably any
over-60 individual then in the carrier’s employ as “required
flight deck crew members” (“RFDCM”) would qualify. If one
accepts, as plaintiffs do, that RFDCM includes “pilots,”17 it
follows that over-60 pilots who were consigned to non-Part
121 flights or were removed from active flight status by
operation of the Age 60 Rule (but remained in the carrier’s
employ) will also qualify as exempt. But if it were otherwise
— if the person invoking the exemption had to actively serve
in Part 121 operations on the enactment date — the universe
of possible RFDCM shrinks dramatically. The phrase would
include only those persons serving secondary roles in Part 121
operations, such as check airmen18 and flight engineers, since
the Age 60 Rule would have barred all Part 121 piloting work.
Plaintiffs’ interpretive argument is certainly not without
merit. Under the “grammatical ‘rule of the last antecedent,’
. . . a limiting clause or phrase . . . should ordinarily be read as
17

See Emory, 821 F. Supp. 2d at 215. For present purposes, we
agree with plaintiffs that a purely facial reading of the statutory
phrase would bear this reading. Pity the passengers on a plane with
an “optional” pilot.
18

Check airmen are also known as “second officers.” Emory,
821 F. Supp. 2d at 210.

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modifying only the noun or phrase that it immediately
follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). As
applied here, the rule suggests “in such operations” should
modify “that air carrier,” the language that immediately
precedes it — not “Such person,” which begins the sentence.
This is a plausible but in no way dispositive interpretation.
“[T]he last antecedent rule,” we recently observed, “ ‘is not an
absolute and can assuredly be overcome by other indicia of
meaning.’ ” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 3669
v. Shinseki, 709 F.3d 29, 33 (D.C. Cir. 2013) (quoting
Barnhart, 540 U.S. at 26). We find such indicia present here.
Emory’s interpretation fails to account for the prefatory
language in § 44729(e)(1) that bars over-60 persons from
serving as pilots “for an air carrier engaged in covered
operations” unless they qualify for either one of the two
exemptions.19 Logically, we think, one must read
§ 44729(e)(1)(A)’s use of “that air carrier” as a reference
back to § 44729(e)(1)’s “air carrier engaged in covered
operation” language. So understood, it would be redundant to
do as plaintiffs urge and apply “in such operations” to the
already qualified “that air carrier” as opposed to “Such
persons.” The former generates needless surplusage and the
latter does not. See Freeman v. Quicken Loans, Inc., 132 S.
Ct. 2034, 2043 (2012) (“[T]he canon against surplusage . . .
19

Whether § 44729(e)(1)’s broad language prohibiting
nonexempt, over-60 persons from serving as a “pilot for an air
carrier engaged in covered operations” barred pilots from piloting
all flights (including Part 91 and Part 135 flights) or just Part 121
flights for an employer “engaged in covered operations” is a
question we need not reach. The Emory plaintiffs would not qualify
as a RFDCM under either approach and there was no suggestion
that plaintiffs sought — and were wrongfully denied — the
opportunity to pilot non-Part 121 flights.

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favors that interpretation which avoids surplusage”). That
§ 44729(e)(1)(B) speaks unqualifiedly of “an air carrier” only
buttresses this view. Having defined the term in
§ 44729(e)(1), it was unnecessary for the drafters to do so
with specificity in either exception.20
For these reasons, we reject Emory’s interpretation and
hold that the “in such operations” language of
§ 44729(e)(1)(A) modifies “Such person.” The implications
of such a holding are clear. Because over-60 persons were
barred from piloting Part 121 flights under the Age 60 Rule,
only those over-60 persons serving as RFDCM in a
secondary, non-piloting capacity on December 13, 2007,
would have qualified for the exemption.21 Since “[t]he
plaintiff pilots in this case were not, and could not have been,
employed as pilots after their respective birthdates” and “had
not been reassigned to another ‘required flight deck crew

20

We think this holding consistent with FAA’s initial efforts to
define the nonretroactivity exemptions. In recognizing that the
over-60 pilot must have “conduct[ed] part 121 operations for the
carrier” on the enactment date to be eligible for an exemption under
§ 44729(e)(1)(A), FAA effectively read the Act’s “in such
operations” language to qualify “Some person,” not “that air
carrier.” See Two Legal Interpretations Regarding the Age 65 Law
Effective 12/13/2007, FAA Information for Operators 07023 (Dec.
20, 2007).
21

We have elsewhere in this opinion spoken of check airmen
and flight engineers as possible RFDCM, but we do not take a
formal position as to the scope of a phrase FTEPA does not define.
See Mann v. ALPA, 2012 WL 1447891, at *4 (M.D. Fla. Apr. 26,
2012).

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member’ position,” the § 44729 (e)(1)(A) exemption plainly
“does not apply.” Emory, 821 F. Supp. 2d at 216.22
*

*

*

On appeal, Emory proffers a handful of confused
arguments in an effort to undercut this interpretation of
§ 44729(e)(1)(A). We are not persuaded.
Emory first suggests the District Court erred when it
interpreted the Age 60 Rule to mean plaintiffs “were removed
from pilot status and were no longer permitted to serve as
pilots” upon turning 60. Emory Appellants’ Br. 21 (internal
quotation marks omitted). We fail to see the point. The only
question here is whether plaintiffs were engaged in Part 121
operations as RFDCM on the enactment date and the Age 60
Rule made absolutely clear that plaintiffs could not pilot Part
121 flights. Emory has even conceded as much. See Emory
Reply 8 (“[The Age 60 Rule] merely bars them while [sic]
from flying in Part 121 operations.”).
Confusing as it may be, Emory next argues we should
adopt the competing fiction that pilots turning 60 before the
enactment date were permitted to fly in Part 121 operations
because FTEPA repealed the Age 60 Rule in terms so strong
we cannot retroactively assume the Age 60 Rule governed
before the enactment date. The argument relies entirely on
FTEPA’s sunset provision, which declared that the Age 60
Rule “shall cease to be effective” on December 13. 49 U.S.C.
§ 44729(d). But as is clear from both plain language and a
22

Emory does not appear to challenge the District Court’s
conclusion that § 44729(e)(1)(B), the “new hire” exception, “has no
applicability to the plaintiffs in this case.” See Emory, 821 F. Supp.
2d at 217.

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good dose of commonsense, this argument overreaches. Much
as an end presumes a start, a rule that “cease[s]” having effect
must have previously been “in” effect. It would be absurd to
suggest we have somehow contravened § 44729(d) in
recognizing that the Age 60 Rule governed prior to December
13, 2007.
Emory also maintains that because the concept of
“RFDCM did not exist as law before December 13, 2007, . . .
no Court could determine before FTEPA was enacted if the
Emory plaintiffs; [flight engineers]; or check airmen were
within the RFDCM.” Emory Appellants’ Br. 23. We think this
argument fundamentally flawed. Suffice it to say, courts act
well within their authority when they interpret — and then
apply — ambiguous statutory language to historical facts. It
would be patently absurd to say that Congress can never use
terms not previously in existence. Cf. Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 841 (1984)
(“[T]he amended Clean Air Act does not explicitly define
what Congress envisioned as a stationary source, to which the
permit program . . . should apply.” (internal quotation marks
omitted)).
Finally, Emory renews an estoppel-by-merger argument
that rests entirely on
the fact that the former Continental Chief Pilot, who is
now the United Chief Pilot and Senior Vice-president for
Flight Operations following the [Continental-United]
merger, took the position while at Continental that check
airmen who reached age 60 before . . . the December 13,
2007, enactment of the FTEPA could continue flying as
check airmen until age 65 with full seniority . . . under
exception (A) . . . because they were [RFDCM].

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Emory, 821 F. Supp. 2d at 216 n.10 (internal quotation marks
omitted). We agree with the District Court, however, that
even if one assumes Continental’s prior activities would bind
United, lobbying FAA to exempt over-60 check airmen but
not these uniquely situated over-60 pilots is not the sort of
“inconsistent positions that warrant application of the doctrine
of judicial estoppel.” Id. United’s interpretation — and our
holding — is entirely consistent with the position that check
airmen may constitute RFDCM while plaintiffs do not.
2. Employment Claims
i. ADEA (United, ALPA)
Counts One and Two of the Emory complaint charge
United and ALPA, respectively, with violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621 et seq. According to the first Count, United knowingly
or recklessly advanced an “unlawful interpretation of the Age
65 Act . . . when the plaintiffs clearly met the exception.”
Emory App’x 115.23 According to the second, ALPA
discriminated against older pilots in failing to “refer or
sponsor” them “for employment and continued employment”
and “colluding with employer United[] to discriminate against
these plaintiff union members because of age.” Id. at 116. The
harm in both Counts is “interpretative.” Plaintiffs believe
defendants discriminated against this discrete class of older
pilots by advancing a harmful, artificially narrow
interpretation they knew or had reason to know was false.

23

We use the typed page numbers when citing the Emory
appendix.

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The District Court’s thoroughgoing opinion ably
navigated both the threshold exhaustion issues as well as the
merits of the ADEA claims, see Emory, 821 F. Supp. 2d at
225–33, but the matter can be resolved on appeal without
great fuss. Assuming arguendo plaintiffs have exhausted their
administrative remedies for these particular claims, Counts
One and Two fail for the obvious reason that there has been
no interpretive harm — United and ALPA did not err in their
reading of the relevant statutory and regulatory language.
Because their interpretations thus constitute actions “taken in
conformance” with the Age 60 and 65 Rules, it follows from
the latter’s protection-for-compliance provision that they
“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). In so holding, we read the
safe harbor to apply to employers and unions alike. See Avera,
436 Fed. App’x at 978–79.24
We take the Counts out of order to consider a related but
distinct harm next.
24

We think the reasoning of the District Court sound:

The statutory text of the provision is not limited to employers,
as the plaintiff suggests; it instead states in broad terms, and
without qualification as to the parties to which it applies, that
“[a]n action taken in conformance with this section . . . may
not serve as a basis for liability.” 49 U.S.C. § 44729(e)(2)
(emphasis added). It would, moreover, be totally irrational to
find that United is protected from suit when acting in
compliance with the FTEPA, while finding that the ALPA can
be sued for permitting United to take such action.
Emory, 821 F. Supp. 2d at 218.

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ii. Wrongful Discharge (United)
Count Four, a wrongful discharge claim, shifts the locus
of injury from United’s interpretation of the Age 65 Rule to
bar plaintiffs from returning to Part 121 service to the
carrier’s decision to involuntarily retire — i.e., terminate —
plaintiffs. The distinction is significant. While the statutory
language compels the former interpretation, neither the Age
60 nor the Age 65 Rule mandate that carriers terminate pilots
who have reached the maximum flying age. Carriers remain
free to reassign those pilots to non-Part 121 flights, offer them
employment as flight deck crew members, or move them into
management positions, though they are by no means obligated
to do so.25 As an entirely practical matter, however, age
ceilings tend to generate a surfeit of pilots forced to compete
for a limited number of non-Part 121 positions, and one way
carriers have responded to this asymmetry is to phase out
older pilots through involuntary termination. See Emory
Compl. ¶ 19(b) (“These circumstances often led to
involuntary termination or discharge of the pilot from the
employer carrier.”). But is this unlawful? Emory certainly
25

We think the Supreme Court’s decision in TWA sheds some
light on the issue. The Court there dealt with a collectivebargaining agreement in which pilots disqualified from flying for
reasons other than age would “automatically . . . displace less
senior flight engineers” while pilots disqualified under the Age 60
Rule had to “bid” for flight engineer positions and retire if there
were no vacancies prior their 60th birthday. TWA, 469 U.S. at 120.
The Supreme Court split the baby in concluding that while the
ADEA did “not” require TWA “to grant transfer privileges to
disqualified captains,” id., TWA had done so and could not now
enforce the policy “in a discriminatory fashion, even if [it was] free
. . . not to provide the benefit at all,” id. at 121.

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believes it is. In claiming United “wrongfully discharged each
plaintiff pilot” in violation of the ADEA, Emory App’x 118,
Emory has effectively mounted a facial challenge to the
legality of United’s involuntary retirement program.26
The District Court concluded United’s involuntary
termination of pilots turning 60 years old was not a violation
of the ADEA. Mandatory retirement may constitute prima
facie age discrimination, the lower court reasoned, but
compliance with the Age 60 Rule constitutes a bona fide
occupational qualification (“BFOQ”), an affirmative defense
under the ADEA. See Emory, 821 F. Supp. 2d at 230–32.
Although the District Court is not alone in this view, there is
no consensus among the court of appeals. Compare Coupé v.
Fed. Express Corp., 121 F.3d 1022, 1023 (6th Cir. 1997),
with EEOC v. Boeing Co., 843 F.2d 1213, 1216–20 (9th Cir.
1988). This Circuit, for one, has already declined to “reach
the question whether the Age 60 Rule constitutes a bona fide
occupational qualification within the meaning of § 623(f)(1)

26

Some brief clarification is in order. Despite Emory formally
raising this claim in Count Four of his complaint, both the District
Court and Emory’s appellate briefing treat it as a Count One issue,
i.e., as an extension of the “interpretive” ADEA claim. See, e.g.,
Emory, 821 F. Supp. 2d at 225. We think distinguishing on the
basis of the actual harms alleged is more faithful to the complaint.
For similar reasons, we charitably read the Emory plaintiffs’
footnoted concession that they “will not present arguments on the
merits of the wrongful discharge allegations in Court 4 [sic],”
Emory Appellants’ Br. 54 n.24, as a formal waiver of Count Four’s
“FTEPA” and “Public Policy” based unlawful discharge claims, but
not the ADEA-based claim.

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of that Act.” Prof’l Pilots Fed’n, 118 F.3d at 763. Believing
the question not properly before us, we do the same today.27
Plaintiffs in the proceeding below disputed United’s
claim that their mandatory retirement program is a BFOQ
under Carswell v. ALPA, 540 F. Supp. 2d 107 (D.D.C. 2008),
see Emory, 821 F. Supp. 2d at 230–31, but they have not
renewed those challenges on appeal. Indeed, Emory’s moving
brief offers no reason to doubt the District Court’s finding in
United’s favor. The only mention of BFOQ comes in the
reply brief and this cursory, paragraph-long discussion offers
but one argument: “With the demise of the Age 60 Rule, no
BFOQ defense could be mounted against the Emory
December pilots for the few days they were under the Age 60
Rule and still in the employment of United.” Emory Reply
27–28. We accordingly find that the Emory plaintiffs waived
their BFOQ arguments on appeal, having raised them for the
first time in their reply brief. See, e.g., Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008).
iii. Breach of the Duty of Fair Representation (ALPA)
Stepping back, Count Three of the Emory complaint
contends ALPA violated its “duty to each [union] member to
provide . . . fair, lawful, and non-discriminatory
representation” by knowingly and willfully “scuttl[ing]
plaintiff pilots’ immensely valuable employment rights on the
basis of age and entirely for the advancement of younger pilot
union members.” Emory App’x 117. That duty originates not
27

We likewise reserve judgment on the question whether
mandatory retirement programs are so intimately bound with the
Age 60 and Age 65 Rules that the former could be said as “in
compliance” with the latter, thus triggering § 44729(e)(2), the
protection-for-compliance provision.

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within the plain language of the Railway Labor Act,28 which
contains no such provision, but through “a series of cases
involving alleged racial discrimination by unions” in which
“the Supreme Court recognized that the Railway Labor Act
imposes a duty on the union to . . . serve the interests of all
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct.” May v. Shuttle, Inc., 129 F.3d
165, 177 (D.C. Cir. 1997) (internal quotation marks omitted);
see also Steele v. Louisville & Nashville R.R. Co., 323 U.S.
192, 199 (1944). As might be expected given the duty’s
origins as judicially constructed doctrine, the Railway Labor
Act is also without a specific statute of limitation. It was only
by borrowing the “six-month statute of limitations applicable
to claims for breach of the duty of fair representation under
Section 10(b) of the National Labor Relations Act,” Emory,
821 F. Supp. 2d at 233, that the District Court could strike
plaintiffs’ claim — filed almost one year after termination —
as time barred.29 We think this the right approach.
Where a statute is without an appropriate statute of
limitations, “we do not ordinarily assume that Congress
intended that there be no time limit on actions at all; rather,
our task is to ‘borrow’ the most suitable statute or other rule
of timeliness from some other source.” DelCostello v. Int’l
28

“In 1936, Congress extended the Railway Labor Act to
cover the then small-but-growing air transportation industry.” Int’l
Ass’n of Machinists, AFL-CIO v. Cent. Airlines, Inc., 372 U.S. 682,
685 (1963).
29

The “claim accrued, and the statute of limitations began to
run, by the beginning of January 2008 at the latest.” Emory, 821 F.
Supp. 2d at 233. By this point, plaintiffs either knew or should have
known both ALPA and United’s interpretive positions.

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Bhd. of Teamsters, 462 U.S. 151, 158 (1983). Although the
Supreme Court has “generally concluded that Congress
intended that the courts apply the most closely analogous
statute of limitations under state law,” id., it has
acknowledged that “state statutes of limitations can be
unsatisfactory vehicles for the enforcement of federal law. In
those instances, it may be inappropriate to conclude that
Congress would choose to adopt state rules at odds with the
purpose or operation of federal substantive law.” Id. at 161.
Such was the case in DelCostello, where the Court applied
§ 10(b), the National Labor Relations Act’s six-month
limitation period, 29 U.S.C. § 160(b), to a hybrid breach of
contract/fair representation claim brought under the Labor
Management Relations Act, 29 U.S.C. § 185 et seq. In the
Court’s view, it was simply unnecessary to resort to state law
where “a federal statute of limitations actually designed to
accommodate a balance of interests very similar to that at
stake” was readily available. DelCostello, 462 U.S. at 169.
In the wake of DelCostello, a majority of the circuits
extended § 10(b)’s six-month statute of limitations period to
the Railway Labor Act context, see, e.g., Smallakoff v. ALPA,
825 F.2d 1544, 1545–46 (11th Cir. 1987) (collecting cases);
Triplett v. Bhd. of Ry., Airline & S.S. Clerks, Freight
Handlers, Express & Station Emps., Local Lodge No. 308,
801 F.2d 700, 702 n.2 (4th Cir. 1986) (same), and the
Supreme Court hinted it might do the same, see West v.
Conrail, 481 U.S. 35, 38 n.2 (1987). This Court has twice
applied § 10(b) to Railway Labor Act-based claims without
specific limitation provisions. See May, 129 F.3d at 177
(breach of duty of fair representation); Atlas Air, Inc. v.
ALPA, 232 F.3d 218, 222 (D.C. Cir. 2000) (discriminatory
anti-union policies). Try as plaintiffs might to distinguish the
present case as one in which there was “no time pressure to
gather evidence of member discord because there is no

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internal remedy,” Emory Appellants’ Br. 52, we see no reason
to depart from prior practice. Plaintiffs have failed to cite a
single case in which the availability vel non of an “internal
remedy” was said to alter the limitations calculus. Whether
employees have (or have complied with) internal remedies is
fundamentally an exhaustion issue; it might toll the
limitations clock, see Stevens v. Nw. Ind. Dist. Council,
United Bhd. of Carpenters, 20 F.3d 720, 729 (7th Cir. 1994),
but it need not change the limitations clock. In sum, we hold
that § 10(b)’s six-month limitation period applies to the duty
of fair representation claims brought under the RLA.
Emory resorts to tolling arguments in an effort to turn
back the clock and save the claim, but the arguments are
fundamentally misguided and easily dismissed.
Emory first contends “ALPA is estopped from asserting,
and [has] waived a six-month bar” because of a grievance the
union filed “attack[ing]” Continental Airline’s pre-merger
interpretation of the Act. Emory Appellants’ Br. 53. There are
multiple problems with this line of argument. To wit, there is
simply no merit to Emory’s suggestion that Continental —
and thus United — had interpreted FTEPA in plaintiffs’
“favor[].” Emory Appellants’ Br. 54. As explained in Brooks
v. ALPA, 630 F. Supp. 2d 52 (D.D.C. 2009), Continental read
FTEPA to “treat[] flight instructors and check airmen” as
RFDCM. Id. at 54. Of course, the Emory plaintiffs are neither
flight instructors nor check airmen and there is nothing
necessarily inconsistent about reading “RFDCM” to include
these two positions but not the Emory plaintiffs.
Emory also alleges futility “under these facts,” noting
how “ALPA repeatedly rebuffed these December pilots [sic]
request for help during the transition to the Age 65 limit.”
Emory Appellants’ Br. 54. “In this highly charged setting,”

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Emory reasons, “it would have been legally futile for the
Emory December pilots to present a DFR claim or file a
Federal court lawsuit within a dubious six-month limit.” Id.
We think plaintiffs conflate “futile” and “difficult.” By their
own admission, there were no internal remedies to exhaust.
See id. at 52. It would not have been legally futile to bring suit
after their involuntary termination, just difficult. To put
matters pointedly, an empty claim of “futility” will not save
plaintiffs who chose to sit on their claims.
Count Three against ALPA is thus time barred.
iv. Fraudulent Misrepresentations (United, ALPA)
Fraudulent misrepresentation in the District of Columbia
requires, inter alia, proof of a “false representation.” Chedick
v. Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998). Having
thoroughly rejected the complaint’s working presumption that
United and ALPA erred in their interpretation of FTEPA, see
Emory Compl. ¶¶ 81–83; Emory, 821 F. Supp. 2d at 242,
Count Five’s fraudulent misrepresentation claim is entirely
without basis.30
v. Constitutional Challenges
We dismiss Emory’s incorporated constitutional claims
for the reasons discussed supra in Section II.C.
30

Believing federal law preempted the common law fraud and
misrepresentation claim against ALPA but not United, see Emory,
821 F. Supp. 2d at 240–42, the District Court reached the merits
only with regard to United. Because the matter is easily resolved on
the interpretive merits and our holding applies equally to ALPA, we
think it unnecessary to reach either the preemption issue or the
District Court’s alternative grounds for rejecting Count Five.

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USCA Case #12-5026

Document #1442504

Filed: 06/21/2013

34
IV. CONCLUSION
The pilots in Emory and Adams are sympathetic
plaintiffs, but there is only so far this flawed litigation can go.
For the foregoing reasons, the judgments of the District
Courts as they pertain to claims not dismissed as moot are
therefore
Affirmed.

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