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01/29/87 Alaska Airlines, Inc., Et v. William E. Brock

January 29, 1987




Before: EDWARDS, BUCKLEY and D. H. GINSBURG, Circuit Judges.


Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-00485.


In the District Court, the appellants, Alaska Airlines and fourteen other airlines (the "Airlines"), raised an number of challenges to regulations promulgated by the Secretary of Labor (the "Secretary") pursuant to his statutory authority under section 43 of the Airline Deregulation Act of 1978, 49 U.S.C. § 1552 (1982) (the "Act"). Section 43 delineates the Act's "employee protection program," one provision of which imposes on previously-regulated air carriers the duty to give a hiring preference to certain airline employees (hereinafter "protected employees") who are terminated or furloughed by such carriers within the ten-year period commencing October 24, 1978. 49 U.S.C. § 1552(d)(1) (1982). Section 43 authorizes the Secretary to "issue, amend, and repeal such rules and regulations as may be necessary" to administer this program. id. § 1552(f)(l). Following notice and comment, the Secretary promulgated the regulations in question. Airline Employees Protection Program, 50 Fed. Reg. 53,093 (1985) (to be codified 29 C.F.R. pt. 220).

The appellants argue that the Secretary's rules are inconsistent with the Act, violate the carriers' Fifth Amendment rights and fail to reconcile the requirements of the employee protection program with the carriers' safety and civil rights obligations. The District Court rejected all but one of these challenges.

In all respects save one, we find that the regulations are clearly reasonable, consistent with the terms of the Act, and within the Secretary's statutory authority. Accordingly, under the standard of review dictated by the Administrative Procedure Act, 5 U.S.C. § 706(2) (1982), we uphold all but one portion of the challenged regulations as lawful exercise of the Secretary's statutory authority.

The Airlines' challenge to the statute and regulations on Fifth Amendment ground is also without merit. Congress' decision to place certain of the burdens of airline deregulation solely on the previously-regulated carriers satisfies the standard of rationality that applies to economic regulation. See Usery v. Turner Elkhorn Mining Co., 428 U.S.C. 1, 15 (1976); City of New Orleans v Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976); Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 235 U.S. App. D.C. 1, 729 F.2d 1502, 1509-11 (D.C. Cir. 1984).

Accordingly, we affirm the judgment of the District Court except as indicated below.

We uphold the Secretary, and thus reverse the District Court, on the issue that is the subject of the Air Line Pilots Association's cross-appeal. We hold that the District Court erred in invalidating and remanding 29 C.F.R. § 220.21(a)(1) to the Secretary with instructions to consider the carriers' safety concerns. The regulation in question specifies that the carriers' duty to hire protected employees precludes the application of an employer's maximum hiring age criteria (except with respect to retirement ages) to job canidates who qualify for the hiring preference. We reject the District Court's conclusion that, with respect to flight officers and pilots, the Secretary was obliged to address the carriers' concern that the regulation conflicts with the carriers' obligation to maintain air safety. In the express language of section 43, Congress made it absolutely clear that the hiring preference should apply "regardless of age." 49 U.S.C. § 1552(d)(l) (1982). The safety concerns raised by the Airlines are fully taken account of in sections 220.11(a), 220.20(a), and 220.21(a) of the Secretary's regulations, which leave carriers free to establish and apply safety-related job qualifications to protected employees. These provisions clearly authorize carrier to deny employment to protected employees on safety grounds; it is only the maximum age qualification in and of itself which is prohibited.

On the record before us, there is one aspect of the Secretary's regulations that we find problematic under 5 U.S.C. § 706(2) (1982). The District Court interpreted 29 C.F.R. § 220.29 and 29 C.F.R. § 220.01(j) to mean that "any valid equal employment opportunity agreement" overrides the duty to hire protected employees. However, the actual a language of section 220.01(j) suggests that the exception created by section 220.29 is a narrower one. In this appeal, counsel for the government has stated no clear position on the meaning of section 220.01(j). We therefore vacate and remand this portion of the District Court's decision with instructions to remand the issue to the Secretary for clarification of the scope of the equal employment opportunity exception.

Finally, we affirm the District court's denial of the Airlines' Rule 60(b) motion. The court clearly did not abuse its discretion in declining to give the appellants relief from its original judgment. See Browder v. Director, Department of Corrections, 434 U.S. 257, 263, n.7, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978) (abuse of discretion standard governs review of district court's ruling on Rule 60(b) motion). Insofar as the appellants' motion attempted either to enforce the District Court's original mandate to the Secretary or to present an appeal from the Secretary's subsequent repromulgation of 29 C.F.R. § 220.21(a)(1), their appeal to this court is rendered moot by our reversal of the District Court's decision invalidating and remanding the regulation.


These causes came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and were briefed and argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration ...

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