                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


LEO BROOKS, et al.,              :
                                 :
          Plaintiffs,            :
                                 :
     v.                          : Civil Action No. 08-1817 (JR)
                                 :
AIR LINE PILOTS ASSOCIATION,     :
INTERNATIONAL,                   :
                                 :
          Defendant.             :

                            MEMORANDUM

          Plaintiffs, all Continental Airlines employees over

sixty years old, ask this court to order their union, defendant

Air Line Pilots Association International, to withdraw a

grievance challenging Continental’s interpretation of the Fair

Treatment for Experienced Pilots Act, 49 U.S.C. § 44729.

Plaintiffs allege that ALPA filed the grievance with the age-

discriminatory intent of benefitting its younger members at the

expense of older ones.   Defendant moves to dismiss.   Because

plaintiffs have not yet been and may never be injured by ALPA’s

grievance, their claims are not ripe for adjudication.

Defendant’s motion will accordingly be granted.

                            Background

          When enacted in December 2007, the Fair Treatment for

Experienced Pilots Act, 49 U.S.C. § 44729, increased the maximum

age for pilots who fly commercial airliners from 60 to 65.    This

increase came with a “non-retroactivity” clause stating that:
       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 . . . unless - (A) such
       person is in the employment of that air carrier in
       such operation on such date of enactment as a
       required flight deck 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 . . . .

Translated, this provision means that individuals who were over

60 when FTEPA was passed can work as pilots, but -- unless they

are “required flight deck members” -- without their accrued

seniority.   The cancellation of seniority is significant, because

pilots are allocated work through a competitive bidding system

that gives senior pilots priority in choosing the types of

aircraft they will fly, their positions in the cockpit, the

locations they fly from, and the trips they will work.    Tr. 4:4-

7.

          Plaintiffs are all pilots who work for Continental as

flight instructors and/or check airmen, and they were all over 60

years old when FTEPA was passed.   Compl. at 2.   Continental --

and apparently only Continental -- interprets the language of the

statute to allow flight instructors and check airmen to be

treated as “required flight deck members.”   Plaintiffs therefore

continue to work, and their seniority is intact.    Id.; Tr. 26:4-

20.

          On September 29, 2008 ALPA filed a grievance alleging

that Continental’s interpretation of the statute is erroneous and


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that treating flight instructors and check airmen as “required

flight deck member” violates its collective bargaining agreement.

Id.   In ALPA’s submission, only a flight engineer (a third flight

deck crew member necessary on certain older aircraft) is a

“required flight deck member.”     MTD. at 2.

                          Plaintiffs’ Claims

             Plaintiffs assert that ALPA, by filing the grievance,

acted illegally in four different ways.1       First, they claim that

ALPA violated the Age Discrimination in Employment Act, 29 U.S.C.

§ 623(c), which states that it is

          unlawful for a labor organization– (1) to exclude
          or to expel from its membership, or otherwise to
          discriminate against, any individual because of his
          age; (2) to limit, segregate, or classify its
          membership, or to classify or fail or refuse to
          refer for employment any individual, in any way
          which would deprive or tend to deprive any
          individual of employment opportunities, or would
          limit such employment opportunities or otherwise
          adversely affect his status as an employee or as an
          applicant for employment, because of such
          individual's age; (3) to cause or attempt to cause
          an employer to discriminate against an individual
          in violation of this section.

29 U.S.C. § 623(c); Compl. at 7-8.

             Second, plaintiffs allege breach of contract, asserting

violation of the union’s obligation under its constitution to

“represent[] . . .     all members of the airline piloting



      1
      Plaintiffs have abandoned their argument that ALPA’s
advocacy to members of Congress is a basis for any distinct
claim.

                                 - 3 -
profession; promote the interests of that profession; and

safeguard the rights, individually and collectively, of its

members.”    Compl. at 8-9.   Third, plaintiffs argue that ALPA

violated the union’s duty of fair representation under the

Railway Labor Act, a duty that prohibits a union from making

“irrelevant and invidious distinctions” between its members,

Conley v. Gibson, 355 U.S. 41 (1957), that are “arbitrary,

discriminatory, or in bad faith.”        Air Line Pilots Ass'n, Intern.

v. O'Neill, 499 U.S. 65, 67 (1991).        Compl. at 9-10; Opp. at 9-

11.   Last, plaintiffs contend that ALPA somehow tortiously

interfered with its own collective bargaining agreement with

Continental.    Compl. at 10.

            Conspicuously absent from the complaint is a request

for this court to resolve the meaning of the term “required

flight deck member” in 41 U.S.C. § 44729.       Defendant asserts, and

plaintiffs apparently concede, that this question is initially

subject to the grievance process, MTD at 8-9, the result of which

can afterward be challenged in court.       MTD at 8-9; Opp. at 7;

see, 45 U.S.C.A. § 153.

                                Ripeness

            Defendant’s dispositive argument is that plaintiffs’

claims are not ripe for adjudication because the filing of their




                                 - 4 -
grievance caused no harm.2      The necessary inquiry asks “whether

the harm asserted has matured sufficiently to warrant judicial

intervention.”       Warth v. Seldin, 422 U.S. 490, 499 n. 10 (1975).

This is “a two-part analysis, evaluating [1] the fitness of the

issues for judicial decision and [2] the hardship to the parties

of withholding court consideration,’” CTIA-The Wireless Ass'n v.

F.C.C., 530 F.3d 984, 987 (D.C. Cir. 2008) (internal citation

omitted).       The court may consider materials outside the

pleadings.       Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d

359, 366 (D.C. Cir. 2005).       “The fitness of an issue for review

depends, among other things, on whether it is purely legal . . .

[and] whether consideration of the issue would benefit from a

more concrete setting . . . .”       CTIA-The Wireless, 530 F.3d at

987.       “A claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or

indeed may not occur at all.”       Texas v. United States, 523 U.S.

296, 300 (1998) (internal quotation omitted).

               Plaintiffs concede that their employment situation has

not changed: Continental continues to allow them to bid for jobs

based on their seniority and has undertaken that it will do so


       2
      This argument could also be characterized as a standing
argument, i.e., that plaintiffs have not suffered a “concrete and
a particularized” injury that is “actual or imminent, not
conjectural or hypothetical.” Am. Library Ass'n v. F.C.C., 401
F.3d 489, 493 (D.C. Cir. 2005). On the facts of this case
“standing and ripeness boil down to the same question . . . .”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n. 8
(2007).
                              - 5 -
until the grievance process is resolved.     Tr. 26:4-20.

Plaintiffs also acknowledge that at least one individual has

brought a grievance against Continental challenging the airline’s

application of 49 U.S.C. § 44729, ensuring that the question

raised by ALPA will be decided via the grievance process one way

or another.   Tr. 30:9-10.    This case is therefore not fit for

judicial review and the plaintiffs will suffer no harm by its

dismissal.

          Plaintiffs none the less insist that they are harmed by

the mere possibility that the grievance could be resolved against

them, and by their union’ adoption of an allegedly discriminatory

position contrary to their interests,3 but the case authority

they cite for that proposition is not compelling.     In Lorance v.

AT & T Technologies, Inc., 490 U.S. 900 (1989), the Court was

faced with an employee’s challenge to an allegedly discriminatory

change in a seniority system.     It found that case ripe because

the contested change imposed a “less desirable seniority

guarantee than what the law requires,” a situation likened to

“when an insurance company delivers an accident insurance policy

with a face value of $10,000, when what has been paid for is a

face value of $25,000.”      Lorance, 490 U.S. at 907, n.3.


     3
      ALPA’s claim may also be protected by the First Amendment
because it is non-frivolous and was filed in a grievance process
that appears to be a mandatory precursor to litigation in an
Article III court. See, Whelan v. Abell, 48 F.3d 1247, 1254
(D.C. Cir. 1995) (citing, Bill Johnson's Restaurants, Inc. v.
NLRB, 461 U.S. 731 (1983)).
                              - 6 -
          Riva v. Com. of Mass., 61 F.3d 1003, 1011 (1st Cir.

1995) involved a challenge to changes in a disability retirement

benefit plan.   The panel found the challenge ripe and justiciable

because it was “highly probable” that the plaintiff would lose

benefits, even if the losses would not happen for several years.

Riva, 61 F.3d at 1011.

          Lorance and Riva both involved changes to plans by

employers that, left unchallenged, were certain or quite likely

to affect the plaintiffs at some point.      Here, by contrast, the

change plaintiff’s fear is by no means certain to occur.

Moreover, the union that plaintiffs seek to hold responsible for

the change they fear can only advocate for its interpretation of

the statute –- ALPA will not control the outcome.      Plaintiff’s

existential dread –- their fear that ALPA may succeed with its

advocacy –- is not “harm” that has matured sufficiently to

warrant judicial intervention.”       Warth, 422 U.S. at 499 n. 10.

                         *        *         *

          The defendant’s motion to dismiss, Dkt.# 9, will be

granted in an appropriate order that accompanies this memorandum.




                                     JAMES ROBERTSON
                               United States District Judge




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