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Grant O. Adams, et al v. United States of America

July 11, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs, a group of commercial pilots, bring this action against the United States, Secretary of Transportation Ray Lahood, and Administrator of the Federal Aviation Administration ("FAA") J. Randolph Babbitt, challenging the constitutionality of certain provisions of the Fair Treatment for Experienced Pilots Act ("FTEPA" or "the Act"), Pub. L. No. 110-135, 121 Stat. 1450 (2007) (codified as amended in scattered sections of 49 U.S.C.). Plaintiffs also seek judicial review of the FAA's implementation of FTEPA under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Before the Court is defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted.


From 1959 to 2007, FAA's "age-sixty rule" prohibited pilots from flying commercial airliners after their sixtieth birthdays. See 14 C.F.R. § 121.383(c) (2006). In December 2007, Congress enacted FTEPA, which increased the age limit from sixty to sixty-five. 49 U.S.C. § 44729(a). FTEPA includes a "non-retroactivity" provision that allows a pilot who had already turned sixty before the statute's enactment but is not yet sixty-five to return to work, but only if:

(A) such person is in the employment of [an] air carrier in [covered] operations on [FTEPA's] 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 without credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.

Id. § 44729(e)(1). The effect of paragraph (B) is to allow pilots who had been forced to retire by the age-sixty rule to return to work, but as the most junior pilots in their organizations. See Jones

v. Air Line Pilots Ass'n, 713 F. Supp. 2d 29, 32 (D.D.C. 2010), aff'd 2011 WL 2417140 (D.C. Cir. June 17, 2011).

FTEPA also contains a so-called protection-for-compliance provision, which provides: An action taken in conformance with this section, taken in conformance with a regulation issued to carry out this section, or taken prior to the date of enactment of this section in conformance with section 121.383(c) of title 14, Code of Federal Regulations (as in effect before such date of enactment), 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). This provision serves to shield employers from liability for complying with FTEPA's requirements.

Plaintiffs filed this action on September 28, 2010, alleging that FTEPA has barred them from returning to work with the seniority and benefits to which they are entitled. See Compl. ¶¶ 274, 293. They further allege that this loss of seniority will preclude them from piloting the types of large commercial aircraft that they were qualified to fly prior to turning sixty. Compl. ¶ 272.


A. Lack of Subject-Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . ."). In response to such a motion, the plaintiff must establish that the court has subject-matter jurisdiction over the claims in the complaint. See Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff is unable to do so, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 7 Wall. 506, 514 (1868)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253--54 (D.C. Cir. 2005).

B. Failure to State a Claim Upon Which Relief May Be Granted

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court will dismiss a complaint, or a portion thereof, that fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, although a complaint need not contain detailed factual allegations, it must recite facts sufficient to at least "raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. A "pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 ...

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