Pilots Rights Ass'n v. Federal Aviation Administration

86 F.R.D. 174, 22 Empl. Prac. Dec. (CCH) 30,771, 1980 U.S. Dist. LEXIS 17120
CourtDistrict Court, District of Columbia
DecidedMarch 21, 1980
DocketCiv. A. No. 79-3384
StatusPublished
Cited by4 cases

This text of 86 F.R.D. 174 (Pilots Rights Ass'n v. Federal Aviation Administration) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pilots Rights Ass'n v. Federal Aviation Administration, 86 F.R.D. 174, 22 Empl. Prac. Dec. (CCH) 30,771, 1980 U.S. Dist. LEXIS 17120 (D.D.C. 1980).

Opinion

MEMORANDUM AND ORDER

GESELL, District Judge.

Plaintiff, an association of current and former commercial airline pilots and flight engineers, urges this Court to enjoin the publication of a study which has not yet been completed. The study is being conducted pursuant to a contract awarded by defendant Federal Aviation Administration (“FAA”). Its purpose is to re-examine the continued medical and scientific rationality of the “Age 60 Rule,”1 which prohibits per[176]*176sons over sixty years of age from serving as pilots for certificated air carriers. The case is before this Court on defendants’ motion to dismiss, which has been fully briefed by the parties. The Court concludes that plaintiff lacks standing to challenge the awarding of the contract and that no issues presented in the pleadings are ripe for judicial determination. Because neither a concrete controversy nor a judicially cognizable injury is presented, the case must be dismissed on these two independently sufficient grounds.

For purposes of the motion, the facts are taken as alleged in plaintiff’s papers. The Age 60 Rule was initially promulgated pursuant to rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (1976), and has been sustained by the courts under applicable standards of agency review. See Air Line Pilots Assn., Intl. v. Quesada, 276 F.2d 892 (2d Cir. 1960), cert. denied, 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961); O’Donnell v. Shaffer, 491 F.2d 59 (D.C.Cir.1974). In response to congressional interest and for other reasons, the agency has continued to examine the effects of aging on the pilot population. Its announced long-term goal is to substitute individual assessments of pilot capabilities for the current uniformly applied prohibition on continued employment. Passage of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 (1976), has resulted in more searching judicial scrutiny of age-based restrictions on employment to ensure that such restrictions are imposed only when reasonably necessary for safe and efficient job performance. See, e. g., Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977); Aaron v. Davis, 414 F.Supp. 453 (E.D.Ark.1976). Recently, Congress has further focused its attention on the Age 60 Rule, and ordered that a study be conducted by the National Institutes of Health (“NIH”) to determine whether the rule is medically warranted. Pub.L.No.96-171, 93 Stat. 1285 (Dec. 29, 1979). This statutory mandate may represent only a temporary accommodation, as there is considerable support in Congress to modify the existing rule. See H.R.Rep.No.474, 96th Cong., 1st Sess. (1979), reported in U.S.’ Code Cong. & Admin.Code 1979, pamph. 11, p. 4817; 125 Cong.Rec. H11537-65 (daily ed., Dec. 5, 1979).

While congressional hearings on the Age 60 Rule were in progress, the FAA negotiated a contract for the study at issue here. On or about July 16, 1979, the agency awarded the contract to defendant Goddard, who is a former FAA Federal Air Surgeon and a strong supporter of the rule. The FAA acted by direct negotiation rather than advertising for competitive bids, pursuant to 41 U.S.C. § 252(c)(10) (1976).2 Plaintiff expressed no interest in competing for this contract, nor is there any evidence that it expected or aspired to play a tangible role in the conduct of the study. Goddard and a committee of scientific and medical personnel appointed by him have held two meetings since the contract was awarded. The committee members have not been assigned specific writing or research responsibilities, and they have yet to see the draft report which Goddard announced he would prepare for their review.3

Plaintiff apparently advances a bifurcated theory for this action. On the one hand, it is asserted that the awarding of the contract without advertising was improper because it was not impracticable to secure competition for the services to be performed. This sole source negotiated award also is alleged to be part of a larger conspiracy to deprive plaintiff and its members of their rights under ADEA and the United [177]*177States Constitution, by rigging contract performance so as to predetermine the outcome of a study in favor of retaining the rule. Behind both arguments is plaintiff’s contention that its members will be irreparably harmed should the Goddard contract study be permitted to issue as a putatively impartial reassessment of the Age 60 Rule. The nature of this alleged injury is presumably that the Goddard report will pervasively influence the NIH study ordered by Congress and will taint further FAA rulemaking efforts in this area if and when a new rulemaking proceeding is initiated.

Plaintiff asserts it has standing to challenge a clear violation of duty by agency procurement officials. This generalized concern to vindicate the public’s interest in proper administration of procurement procedures clearly does not constitute the specific injury in fact contemplated under Article III of the Constitution. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). See also Perkins v. Lukens Steel Co., 310 U.S. 113, 132, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). Plaintiff is not a disappointed bidder, and has suffered no competitive or other direct economic injury as a result of the Goddard award. Reliance on Scan well Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (D.C.Cir. 1970), and its progeny is inapposite in this regard. Courts must exercise special care when considering emergency challenges to a procurement determination, in deference to traditional notions of agency discretion and the complex, technical aspects of procurement decisions made by government officials. See M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 232-33, 455 F.2d 1289, 1300-01 (D.C.Cir.1971). Judicial forbearance is particularly advisable where, as here, the moving party lacks a demonstrable injury.

The alleged harm to plaintiff’s members is, at most, that the current Age 60 Rule will remain unchanged. Plaintiff suffers no injury it would not experience in the absence of the study, unless it is the reinforcement of a prevailing rationale. Even this “injury” is premature and speculative. Too many intervening factors are unknown and uncontrollable. The study itself has not been released. Its findings and recommendations are uncertain. Moreover, there is no indication that the relief sought is in any way likely to cure the harm alleged. Assuming

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86 F.R.D. 174, 22 Empl. Prac. Dec. (CCH) 30,771, 1980 U.S. Dist. LEXIS 17120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilots-rights-assn-v-federal-aviation-administration-dcd-1980.