                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT



HENRY J. WEILAND,                        No. 11-56088
               Plaintiff-Appellant,
                                           D.C. No.
                v.                      8:10-cv-01451-
                                            JVS-SS
AMERICAN AIRLINES, INC.,
              Defendant-Appellee.          OPINION


      Appeal from the United States District Court
         for the Central District of California
       James V. Selna, District Judge, Presiding

                Argued and Submitted
        February 2, 2015—Pasadena, California

                 Filed March 2, 2015

Before: Stephen Reinhardt and Ronald M. Gould, Circuit
 Judges, and J. Frederick Motz, Senior District Judge.

               Opinion by Judge Motz;
              Dissent by Judge Reinhardt
2              WEILAND V. AMERICAN AIRLINES

                          SUMMARY *



              Federal Aviation Administration

     The panel affirmed the district court’s dismissal of
airline pilot Henry Weiland’s action against American
Airlines, holding that Weiland, who turned 60 six days
before the Federal Aviation Administration’s Age 60 Rule
was abrogated by the Fair Treatment for Experienced Pilots
Act (“FTEPA”), did not qualify for one of the Act’s
exceptions to non-retroactivity.

    The FAA’s Age 60 Rule required air carriers operating
under 14 C.F.R. § 121(a) to cease scheduling pilots from
operating aircraft when they turned 60. The FTEPA
abrogated the Age 60 Rule, delaying the age at which pilots
must cease flying from 60 to 65, and was explicitly non-
retroactive with two exceptions.

    The panel held that Weiland did not qualify for the
FTEPA’s 49 U.S.C. § 44729(e)(1)(A)’s exception because
although he was employed by an air carrier, he was not
employed “in such operations” and was not a “required
flight deck member.” The panel concluded that because
Weiland did not qualify for an exception to the FTEPA’s
non-retroactivity, its abrogation of the Age 60 Rule was
inapplicable to Weiland; and American acted “in
conformance” with both the Age 60 Rule and the FTEPA
when each was in effect, thereby immunizing American
from any civil liability.

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             WEILAND V. AMERICAN AIRLINES                  3

  Judge Reinhardt dissented because he would hold that
Weiland qualified for the exception in § 44729(e)(1)(A).



                        COUNSEL

John S. Lopatto III (argued), Law Offices, Washington,
D.C.; Richard A. Voll, Law Offices, Ridgewood, New
Jersey, for Plaintiff-Appellant.

Robert Jon Hendricks (argued) and Larry M. Lawrence,
Morgan, Lewis & Bockius, Los Angeles, California;
Donald L. Havermann, and David R. Broderdorf, Morgan,
Lewis & Bockius, Washington, D.C., for Defendant-
Appellee.


                        OPINION

MOTZ, Senior District Judge:

    This case involves a difficult question of statutory
construction that may currently apply only to a class of one.
Although somewhat uncomfortable with the conclusion we
reach, we hold that Plaintiff Henry Weiland, who turned 60
six days before the FAA’s Age 60 Rule was abrogated by
the Fair Treatment for Experienced Pilots Act (“FTEPA”),
does not qualify for one of the FTEPA’s exceptions to non-
retroactivity. The district court reached the same result,
and its decision is affirmed.

                             I.

   Until December 13, 2007, airline pilots at air carriers
operating under 14 C.F.R. § 121(a) (“Part 121 air carriers”)
4            WEILAND V. AMERICAN AIRLINES

were subject to the FAA’s Age 60 Rule. See 14 C.F.R.
§ 121.383(c) (2007). That rule required Part 121 air
carriers to cease scheduling pilots from operating aircraft
when they turned 60. On December 13, 2007 the FTEPA
was enacted and abrogated the Age 60 Rule, delaying the
age at which pilots must cease flying from 60 to 65. See
49 U.S.C. §§ 44729(a), (d). The FTEPA is explicitly non-
retroactive, excluding any “person who has attained 60
years of age before the date of enactment of this section”
from serving “as a pilot for an air carrier engaged in
covered operations” unless the “person” qualifies for one of
two exceptions. Only the first exception is at issue in this
appeal; it reads:

       (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;

Id. § 44729(e)(1)(A).     The FTEPA also contains a
“protection for compliance” provision that immunizes Part
121 air carriers from liability for actions taken in
conformance with the FTEPA or the prior Age 60 Rule. Id.
§ 44729(e)(2).

    Weiland was a check airman when he turned 60 on
December 7, 2007. American’s Collective Bargaining
Agreement (“CBA”) defined a check airman “as a pilot
who is on Check Airman salary for the month.” As pleaded
in his complaint, Weiland’s duties as a joint check
airman/pilot included evaluating pilots in land-based
simulators and in the air during cockpit “line checks,” and
piloting aircraft.

  The Age 60 Rule was in effect on December 7 when
Weiland turned 60 and American ceased scheduling him
              WEILAND V. AMERICAN AIRLINES                        5

for active duty. Weiland requested to be reinstated in lieu
of the FTEPA, and received a response from American on
December 24, 2007. American explained that it interpreted
§ 44729 (e)(1)(A) to not apply to Weiland, and accordingly
he would remain “inactive” and be retired on his “Normal
Retirement Date” pursuant to the Retirement Plan—
January 1, 2008. Weiland filed a charge of discrimination
with the California Department of Fair Employment and
Housing (“DFEH”) on December 23, 2008, and filed a
complaint in the U.S. District Court for the Central District
of California on September 27, 2010. The district court
below granted American’s motion to dismiss on February
18, 2011, which Weiland timely appealed. We have
jurisdiction under 28 U.S.C. § 1291.

                                II.

    We review de novo the district court’s granting of a
motion to dismiss for failure to state a claim. See Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“We accept as true all well pleaded facts in the complaint
and construe them in the light most favorable to the
nonmoving party.” Zadrozny v. Bank of New York Mellon,
720 F.3d 1163, 1167 (9th Cir. 2013) (internal citation
omitted).

                                III.

    Weiland’s claims for relief depend on qualifying for the
(e)(1)(A) exception to the FTEPA’s non-retroactivity
clause. 1 The exception can be divided into three elements:
(1) “in the employment of that air carrier,” (2) “in such

1
  Weiland did not seek to qualify for the (e)(1)(B) exception, which
applies to pilots who are “newly hired” and forgo their accrued
seniority.
6            WEILAND V. AMERICAN AIRLINES

operations,” and (3) “as a required flight deck crew
member.” These terms are undefined in the statute, and
there is no legislative history shedding light on their
meaning.    We therefore must interpret the statutory
language in a vacuum. We find that while Weiland was
employed by American, he was not employed “in such
operations” and was not a “required flight deck crew
member.”

    Weiland’s complaint does plausibly plead that he was
“in the employment of” American on December 13.
Although undefined by the FTEPA, the plain meaning of
“employment” is commonly understood as receiving
compensation in return for work. Here, Weiland was
employed by American on December 13 as an inactive
check airman/pilot. American did not terminate Weiland’s
employment on December 7; it only ceased scheduling him
for check airman and pilot duties pursuant to the FAA’s
Age 60 Rule then in effect. His retirement date was not
until January 1, 2008 pursuant to American’s policy. The
record is unclear when Weiland received his final
paycheck, but we note that the California Unemployment
Insurance Appeals Board found Weiland’s “end of
employment date” was after December 24, 2007 for
purposes of calculating his unemployment insurance. That
finding provides further support for concluding that
Weiland was employed by American on December 13.
Moreover, presumably he continued to be eligible for
employee benefits provided by American.

    Section 44729(e)(1)(A) does not simply say, however,
that a person must be “in the employment” of an air carrier
on the date of the enactment of the FTEPA in order to
qualify for the exception to non-retroactivity. It says that
the person must be “in the employment of that air carrier in
               WEILAND V. AMERICAN AIRLINES                         7

such operations.” (emphasis added). “Such operations”
refers back to the language “covered operations” used in
§ 44729(e)(1), and “covered operations,” in turn, is defined
in § 44729(b) as “operations under part 121 of title 14,
Code of Federal Regulations.” Weiland could not have
been lawfully engaged in any such operations on December
13, 2007—the effective date of the FTEPA—because he
was ineligible to do so under the FAA’s Age 60 Rule when
he turned 60 on December 7. On December 13, 2007, he
was employed by American as an inactive check airman.

    Likewise, it cannot be said that Weiland was “a
required flight deck crew member” on December 13, 2007.
As a pilot and check crew airman, he certainly fell in the
class of “required flight deck crew member.” See Emory v.
United Air Lines, Inc., 720 F.3d 915, 926 n.17 (D.C. Cir.
2013) (“Pity the passengers on a plane with an ‘optional’
pilot.”). But, by virtue of the FAA’s Age 60 Rule in effect
when he turned 60 on December 7, 2007, Weiland also fell
within a subclass that was excluded from the general class
of “required flight deck crew member.” Not only was he
not a “required flight deck crew member,” he was, as of
December 7, 2007, prohibited from being a “flight deck
crew member.” That was the holding of the district court,
and albeit reluctantly, we believe the district court was
correct. 2

2
  It is fair to ask to whom Section 44729(e)(1)(A) applies, if our
interpretation is correct. There are two answers. First, the section
would appear to apply to pilots who turned 60 on December 13, 2007.
Second, under at least one collective bargaining agreement, check
airmen who did not have to be active pilots were “required flight deck
crew members.” See Brooks v. Air Line Pilots Ass’n, Intern., 630 F.
Supp. 2d 52, 54 (D.D.C. 2009) (upholding Continental’s decision to
allow its check airmen who did not fly aircraft to qualify under
§ 44729(e)(1)(A)).
8              WEILAND V. AMERICAN AIRLINES

                                 IV.

    Because Weiland did not qualify for an exception to the
FTEPA’s non-retroactivity, its abrogation of the FAA’s
Age 60 Rule is inapplicable to Weiland, who turned 60 on
December 7, 2007. American acted “in conformance” with
both the Age 60 Rule and the FTEPA when each was in
effect, thereby immunizing American from any civil
liability. See 49 U.S.C. § 44729(e)(2) (the FTEPA’s
“protection for compliance” provision). Accordingly,
Weiland cannot recover on his claims under California’s
FEHA. 3

    AFFIRMED.



REINHARDT, Circuit Judge, dissenting:

    “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 . . . 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.” 49 U.S.C. § 44729(e)(1)(A).

    Statutory construction is frequently not easy. For that
reason I set forth the sentence we are construing at the top
of this dissent. In this case, however, a plain reading of the
statutory language would seem to provide a clear answer to
the question before us. Henry Weiland was “in the
employment” of American Airlines on December 13, 2007.

3
  Because we hold that Weiland did not qualify for the (e)(1)(A)
exception, we need not address the final issue on appeal of whether his
charge to the California DFEH on December 23, 2008 was timely filed.
              WEILAND V. AMERICAN AIRLINES                    9

American Airlines was at the time engaged in part 121
operations, so that it was “in such operations” for purposes
of § 44729(e)(1)(A). Weiland was a pilot and check
airman, and a pilot, as the majority acknowledges, certainly
is a “required flight deck crew member.” Weiland was thus
“in the employment of [an air carrier engaged in covered
operations] on such date of enactment as a required flight
deck crew member.” He needs no more to prevail.

    The majority argues that Weiland could not have been
employed “in such operations” because he “could not have
been lawfully engaged in any such operations on December
13, 2007.” The phrase “in such operations” in
§ 44729(e)(1)(A), however, modifies “air carrier,” not
“person.” By “such operations” Congress referred to
“covered operations,” which are in turn defined as
“operations under part 121.” See 49 U.S.C. § 44729(b),
(e)(1). Part 121 operations are the “operations of each
person who holds or is required to hold an Air Carrier
Certificate or Operating Certificate under part 119.”
14 C.F.R. § 121.1(a). Air Carrier Certificates or Operating
Certificates are held by airlines, not by the individual pilots
employed by airlines. It is thus American Airlines, not
Weiland, who holds an “Air Carrier Certificate,” and it
follows that the only entity that may properly be said to
engage in “part 121 operations” is American Airlines, not
Weiland. This common sense conclusion is reinforced by
part 119, which defines by reference the scope of part 121
operations, and which “applies to each person operating or
intending to operate civil aircraft . . . [a]s an air carrier or
commercial operator, or both, in air commerce.” 14 C.F.R.
§ 119.1(a)(1). A pilot employed by an airline does not
himself “operate civil aircraft as an air carrier or
commercial operator.” The airline does. In sum, the
statutory and regulatory scheme make it clear that the
10           WEILAND V. AMERICAN AIRLINES

phrase “in such operations” in § 44729(e)(1)(A) qualifies
“air carrier” and not “person” (the airline’s individual
pilot).

    Even were we to assume that “in such operations”
refers to Weiland, however, that section does not say that in
order to qualify for the exception a person must be actually
“engaged,” or even “able to lawfully engage,” in covered
operations on the date of enactment. It only says that such
person must be “in the employment of” the airline in
covered operations on that date, and all parties agree that
Weiland was in the employment of American Airlines on
the relevant date. Aside from the Rule of 60, there are
many reasons why an otherwise qualified pilot in the
employment of an airline may not be able to lawfully
operate a commercial aircraft on a given day. For example,
he may have flown on a number of days or hours the
preceding day or days that required him to be off duty on
the day in question. See 14 C.F.R. §§ 117.5, 117.23,
117.25; see also id. § 91.17(a)(2) (intoxication); id.
§ 91.17(a)(3) (use of certain drugs). Thus, under the
majority’s logic, someone who would otherwise qualify for
the exception but who happened to be on his “required rest
period” on December 13, 2007 would not qualify because,
as the majority says, he “could not have been lawfully
engaged in any such operations on December 13, 2007.”
See 14 C.F.R. § 117.25(a) (“No certificate holder may
assign and no flightcrew member may accept assignment to
any . . . duty with the certificate holder during any required
rest period.”). Similarly, otherwise qualifying pilots taking
certain prescription drugs, or who consumed alcohol on
December 13, 2007, would not qualify for the exception.
See id. § 91.17(a)(2) (“No person may act . . . as a
crewmember of a civil aircraft . . . [w]hile under the
influence of alcohol.”); id. § 91.17(a)(3) (“No person may
              WEILAND V. AMERICAN AIRLINES                    11

act . . . as a crewmember of a civil aircraft . . . [w]hile using
any drug that affects the person’s faculties in any way
contrary to safety.”).

     The majority also argues that Weiland was not a
“required flight deck crew member” because far from being
“required” he was in fact “prohibited from being a ‘flight
deck crew member.’” The question, however, is not
whether Weiland was himself individually required, but
whether “pilots,” as a category, are “required.” In fact,
under the majority’s logic no one in a major airline would
probably qualify because it can hardly be said that any
individual pilot is truly “required.” Except in exceptional
circumstances, there will likely be a replacement
reasonably available. Furthermore, as with the majority’s
first argument, it follows from the majority’s reasoning that
someone who was disqualified from lawfully operating a
commercial aircraft on December 13, 2007 for any of the
multiple reasons that I mentioned above would not be a
“required flight deck crew member” and would not qualify
for the exception in § 44729(e)(1)(A).

    I doubt that is what Congress intended, and it is
certainly not what it wrote in the statute. The exception it
made for pilots who were 60 as of the date of enactment
and employed by the air carrier on that date fits Weiland to
a T. I respectfully dissent.
