Professional Helicopter Pilots Ass'n v. Carlucci

731 F. Supp. 440, 1990 U.S. Dist. LEXIS 2274, 1990 WL 18546
CourtDistrict Court, M.D. Alabama
DecidedMarch 2, 1990
DocketCiv.A. No. 88-D-1192-S
StatusPublished
Cited by1 cases

This text of 731 F. Supp. 440 (Professional Helicopter Pilots Ass'n v. Carlucci) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Professional Helicopter Pilots Ass'n v. Carlucci, 731 F. Supp. 440, 1990 U.S. Dist. LEXIS 2274, 1990 WL 18546 (M.D. Ala. 1990).

Opinion

MEMORANDUM OPINION

DUBINA, District Judge.

There are pending in this cause defendants’ motions to dismiss or in the alternative for summary judgment. Numerous arguments, briefs, and memoranda have been presented by all parties. On October 29, 1989, the court held a hearing on the pending motions and heard oral arguments. On October 30, 1989, the defendants resubmitted their motions for summary judgment. Numerous subsequent responses were filed by the plaintiff, Professional Helicopter Pilots Association; the plaintiff-intervenor, International Association of Machinists and Aerospace Workers; and the defendants. After considering all available evidence, this court indicated to the parties on January 10, 1990, that it intended to grant the defendants’ motions for summary judgment and that a memorandum opinion and order to that effect would be forthcoming in the near future.

I. FACTS

Plaintiff, Professional Helicopter Pilots Association (hereinafter “PHPA”), is a labor organization representing civilian flight instructors employed by an independent contractor, Burnside-Ott Aviation Training Center, Inc. This company holds the Department of the Army (“DOA”) contract with the United States Army to provide flight instruction to students at Fort Ruck-er Army Base in Alabama. The plaintiff-intervenor, Local Union 2003 of the International Association of Machinists and Aerospace Workers (hereinafter “IAM”), is the certified bargaining representative of another group of civilian employees. These employees are under contract with Dynacorp, and likewise work at Fort Ruck-er pursuant to Dynacorp’s contract with the Army.

Both PHPA and IAM are parties to a collective bargaining agreement. This agreement requires as a condition of continued employment that all personnel will ensure timely accomplishment of the required annual flight (Army Class II) physical.1 The regulations further provide that “coronary artery disease, as shown by any clinical or angiographic evidence is disqualifying for all classes of flight physicals."2 In the past, the routine Class II Army physicals have not included testing for coronary artery disease (hereinafter “CAD”).

On January 15, 1988, Colonel Bruce Chase (hereinafter “Chase”), Commander of the Army Aeromedical Center at Fort Rucker, Alabama, issued Aeromedical Policy Letter 28-88 which mandated CAD test[442]*442ing for all aircrew members, including the members of the PHPA and IAM. The policy provides for the identification of those aircrew members who have modifiable CAD risk factors. The identification process was developed so that the flight surgeon can intervene with the intent of preventing the development of CAD.3

The medical screening procedures are conducted in a phased manner progressing to four different potential levels.4 The screening is based on a risk index of five percent which, if met or exceeded, requires the pilots to undergo a graded exercise test (hereinafter “GXT”). If the exercise test proves positive, the pilot is required to undergo further screening which includes a thallium scan, echocardiogram, and 24-hour halter monitor.5 In the final stages of testing, the policy provides that a heart catheterization may be necessary for a full diagnostic evaluation.6 (APL 28-88). The medical screening requirements to detect CAD are more stringent than those required by the Federal Aviation Administration (“FAA”). This, in part, is due to the difference in piloting Army helicopters as opposed to civilian, fixed-wing aircraft.7

Before establishing the CAD testing policy, the military conducted almost two decades of research. The published policy reflects the consensus of over a dozen aerospace medical specialists.8 After much review these specialists became aware that [443]*443many of their aircrew personnel were at risk for CAD. After weighing the costs, benefits, and risks in support of and in opposition to the policy, the military determined that the decision weighed in favor of the CAD program.9 Colonel Chase testified that the decision to implement this program was based upon studies which have been conducted for almost twenty years.

Conclusions and lessons learned from these studies have been gradually published in the later 1970’s and into the 1980’s. The Framingham Study is the most widely accepted and most popularly cited. Aerospace medicine specialists in all three services have been concerned about the prevalence, the number of individuals with disease at any given point in time, as asymptomatic coronary artery disease, which has been established to be between 3-5% of all crewmembers. The leading cause of medical suspension from the aviation duties in military pilots is coronary artery disease; therefore, by the early 1980’s military aerospace medicine specialists were weighing the costs/benefits/risks of an aviation accident due to loss of expensive aircraft and human life or livelihood versus the costs/benefits/risks of carrying out a coronary artery disease detection program.... [I]n 50% of the cases, the first symptom of coronary artery disease is acute incapacitation and even sudden death, The policy evolved that it was worthwhile to pursue the detection of coronary artery disease in aircrewmem-bers. A bonus or benefit of the detection program would also be to identify those aircrewmembers with elevated coronary artery disease risk factors and apply preventive measures in an attempt to prevent the development of coronary artery disease.... These principles are equally applied to military and civilian aircrew-members who are instructors that train students since their inflight missions are identical. There have been several cases of civilian airline pilots who have died inflight due to coronary artery disease. The civilian instructor is presumed to have asymptomatic coronary artery disease as often as military aircrewmem-bers.10

The authority for the CAD program is found in Army Regulation 40-501.11 AR [444]*44440-501 governs the standards for Medical Fitness for all persons subject to U.S. Army physicals.

“One of the causes of medical unfitness for flying duty Class 2 is coronary artery disease.... The regulation states in part ‘Coronary artery disease as shown by any clinical or angiographic evidence of coronary artery disease, is disqualifying for all classes of flight physicals’.... AR 40-501, also authorized the commander of the Aeromedical Center to publish Aeromedical Policy Letters which amplify the requirements for examination contained in AR 40-501, as pertains to aviation personnel. So this letter, along with many other policy letters, was published under that authority.” 12

Although several issues are presented in this case, the dispositive question first to be considered is whether, in light of the PHPA’s constitutional challenges, the regulations at issue are reviewable by this court. In the alternative, the court questions whether the PHPA and IAM may maintain suit against military officers when the law generally grants immunity to officers who, acting pursuant to military authority, create such policies.

For reasons hereinafter stated, it is clear that the military regulations at issue are not reviewable.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Meister v. Texas Adjustant General Department
233 F.3d 332 (Fifth Circuit, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
731 F. Supp. 440, 1990 U.S. Dist. LEXIS 2274, 1990 WL 18546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/professional-helicopter-pilots-assn-v-carlucci-almd-1990.