                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1384
ROBERT H. TICE, et al.,
                                              Plaintiffs-Appellants,
                                 v.

AMERICAN AIRLINES, INC.,
                                                Defendant-Appellee.

                          ____________
         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 95 C 6890—Matthew F. Kennelly, Judge.
                          ____________
       SUBMITTED JUNE 14, 2004—DECIDED JUNE 29, 2004
                          ____________



  Before POSNER, KANNE, and ROVNER, Circuit Judges.
  POSNER, Circuit Judge. The plaintiffs in this suit under the
Age Discrimination in Employment Act are 14 American
Airlines pilots who, having reached age 60 and thus become
disqualified (by virtue of a regulation of the Federal Avia-
tion Administration that is not challenged) to pilot the
airline’s planes, claim the right to downgrade to the position
of flight officer. Some of American’s aircraft have three
pilots in the cockpit—the captain, the first officer (copilot),
and the flight officer. The flight officer must ordinarily be a
pilot, but his duties do not involve flying the airplane;
2                                                  No. 04-1384

instead they involve monitoring the plane’s fuel, electrical,
and other systems. American refuses to permit a captain
who has been disqualified as a pilot to downgrade to flight
officer. The plaintiffs, all former captains, contend that this
refusal violates the age discrimination law.
   American replies that the refusal has nothing to do with
age, but rather is compelled by its collective bargaining
agreement with the plaintiffs’ union, which establishes an
“up or out” policy: a flight officer who cannot qualify for a
higher position cannot remain in the cockpit. Because the
flight officer’s job is a kind of apprenticeship for actually
flying the airplane, American wants the job filled by pilots
eligible to progress to the flying positions. Although an
eligible captain who downgrades is not an apprentice, his
eligibility makes it likely that he will someday again be fly-
ing the aircraft and it therefore makes sense that he should
stay in the cockpit rather than take a job on the ground; it
will help him maintain his proficiency. The plaintiffs are
ineligible to pilot the aircraft and so no purpose would be
served by allowing them to be flight officers.
  We ruled the last time this case was here that the question
whether American was indeed compelled by the collective
bargaining agreement to refuse to allow the plaintiffs to
downgrade to flight officer would have to be referred to the
arbitral machinery established by the Railway Labor Act,
because that is the exclusive route for obtaining an authori-
tative interpretation of a collective bargaining agreement in
the airline industry, Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 252-53 (1994); Konop v. Hawaiian Airlines, Inc., 302 F.3d
868, 881 (9th Cir. 2002); Westbrook v. Sky Chefs, Inc., 35 F.3d
316 (7th Cir. 1999), and because the plaintiffs “have no
possible age discrimination claim if it turns out that the
collective bargaining agreement expressly or by implication
makes all disqualified captains, regardless of age, ineligible
No. 04-1384                                                    3

to become flight officers and is applied in a nondiscrimina-
tory fashion in accordance with its terms.” 288 F.3d 313, 314,
318 (7th Cir. 2002) (emphasis in original).
  So the matter was referred to the relevant arbitral body,
the System Board of Adjustment, which sided with
American, ruling that the collective bargaining agreement
indeed established the “up or out” policy that American
said it did. On the basis of this ruling the district court
dismissed the suit.
  The appeal presents a scattershot of issues. The plaintiffs
seem not to have heard of the doctrine of the law of the case,
under which a ruling made in an earlier phase of a litigation
controls the later phases unless a good reason is shown to
depart from it. Pilch v. Ashcroft, 353 F.3d 585 (7th Cir. 2003);
United States v. Noble, 299 F.3d 907, 910 (7th Cir. 2002);
Alphamed, Inc. v. B. Braun Medical, Inc., 367 F.3d 1280, 1285-
86 (4th Cir. 2004). The passage that we quoted from our
previous opinion establishes as the law of this case that if
the collective bargaining agreement creates a flat, age-
neutral policy, neutrally enforced, forbidding captains to
downgrade to flight officer, that is the end of the case. As
our statement of the doctrine indicated, it is not hard and
fast, and so a party is free to argue that an intervening
change in law or other changed or special circumstance
warrants a departure. E.g., Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 817 (1988); Pilch v. Ashcroft,
supra, 353 F.3d at 586-87; Ellis v. United States, 313 F.3d 636,
647-48 (1st Cir. 2002); United States v. Aramony, 166 F.3d 655,
661 (4th Cir. 1999). But in failing to acknowledge the
doctrine, the plaintiffs have also failed to try to fit this case
to any exception to it.
  Their only ground of appeal that the doctrine doesn’t
foreclose is that the arbitrators’ purported interpretation of
4                                                  No. 04-1384

the collective bargaining agreement was so wacky that it
was no interpretation at all and thus exceeded the arbitra-
tors’ delegated power, which is limited to interpretation. As
we explained in an earlier case involving review of an
arbitration decision made under the authority of the
Railway Labor Act, “a federal court is not authorized to set
aside the arbitrator’s award so long as the arbitrator inter-
preted the parties’ contract.” Brotherhood of Locomotive
Engineers v. Atchison, Topeka & Santa Fe Ry., 768 F.2d 914, 921
(7th Cir. 1985); see also Eastern Associated Coal Corp. v. United
Mine Workers of America, District 17, 531 U.S. 57, 62 (2000);
George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577, 579
(7th Cir. 2001). The plaintiffs argue that the arbitrators could
not have been engaged in interpretation because the
collective bargaining agreement does not state that captains
are forbidden to downbid to flight officer. But we had
anticipated and rejected the argument in another passage in
our previous opinion that became the law of the case: “[T]he
agreement nowhere states in so many words that a perma-
nently disqualified captain cannot bump a flight officer. But
contracts, including collective bargaining agreements,
frequently contain implied terms. Chicago & North Western
Transportation Co. v. Railway Labor Executives’ Ass’n, 908 F.2d
144, 154 (7th Cir. 1990) (’the practice had, in other words,
ripened into a commitment, and thus had become a part of
the collective bargaining agreement between the union and
the railroad. Practices accompanied by assurances of
continuation, express or implied but in either event likely to
induce reliance, can create an implied obligation’). Whether
a collective bargaining agreement contains such terms is a
question of interpretation to be decided by arbitrators when
arbitration is the designated method of resolving issues
arising under the agreement. ‘Contracts have implied as
well as express terms, and the authority of an arbitrator to
No. 04-1384                                                  5

interpret a collective bargaining contract includes the power
to discover such terms.’ ” 288 F.3d at 316 (some citations
omitted).
  The System Board of Adjustment found that American
had for many years followed the “up or out” practice, that
the union had acquiesced, and that the practice had become
an implied term of the parties’ collective bargaining agree-
ments. The plaintiffs challenge the correctness of this ruling,
but we have no power to review an arbitral ruling for error.
As long as what the arbitrators did can fairly be described
as interpretation, our hands are tied. Since the interpretation
of a collective bargaining agreement “includes the power to
discover [implied] terms,” and practices can through
acquiescence by the parties “create an implied obligation,”
the arbitrators’ conclusion that American’s “up or out”
policy was an implied term of the collective bargaining
agreement was interpretive and therefore binds us.
                                                   AFFIRMED.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—6-29-04
