Petitioner, a retired airline pilot, filed a petition for exemption from the Federal Aviation Administration's Age 60 Rule, 14 C.F.R. § 121.383(c) (1977). We affirm the Administration's denial of both his application for exemption and motion to disqualify the Federal Air Surgeon from participating in the decision.
Before Moore, Timbers and Van Graafeiland, Circuit Judges.
Petitioner James B. Rombough ("Rombough"), a former airline transport pilot, was retired upon reaching his sixtieth birthday under the so-called "Age 60 Rule",*fn1 14 C.F.R. § 121.383(c) (1977), promulgated by the Federal Aviation Administration ("FAA") in 1959. Prior to the date of his sixtieth birthday in December, 1975, Rombough was a pilot for American Airlines for thirty-three years. At the time of his retirement, he maintained current Captain qualifications on American's 707, 747 and DC-10 aircraft. In his more than forty years of aviation experience, he accumulated over 25,000 hours of flying time.
On December 21, 1977, Captain Rombough filed a petition for exemption from the Age 60 Rule*fn2 asserting that his physical condition warranted the granting of an exemption. At the same time Rombough also filed a motion to disqualify the Federal Air Surgeon, Dr. H. L. Reighard, from participating in the case on the grounds of bias.
From the FAA's denial of both his application for exemption and motion to disqualify, Rombough has filed the instant petition to review pursuant to § 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1486(a) (1970). For reasons set forth below, we affirm.
The FAA's denial of an exemption from the Age 60 Rule is properly reviewable by this court. The FAA argues that the denial of an exemption falls under the provision of the Administrative Procedure Act which excludes from judicial review "agency action . . . committed to agency discretion by law". 5 U.S.C. § 701(a)(2) (1976). Section 601(c) of the Aviation Act, 49 U.S.C. § 1421(c) (1970) provides that:
"The Administrator from time to time may grant exemptions from the requirements of any rule or regulation prescribed under this subchapter if he finds that such action would be in the public interest."
Key to the FAA's argument that Congress intended that the exemption decision be left to the Administrator rather than the courts is the appearance of the word "may" in 49 U.S.C. § 1421(c). However, the Supreme Court has held that 5 U.S.C. § 701(a)(2) is a "very narrow exception" to the general principle of reviewability and applies only in those rare cases where " "statutes are drawn in such broad terms that in a given case there is no law to apply' ". Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 821, 28 L. Ed. 2d 136 (1971), quoting S.Rep.No.752, 79th Cong., 1st Sess., at 26 (1945). Here, under 49 U.S.C. § 1421(c), the statutory standard is the public interest. In review proceedings arising under other provisions of the Aviation Act,*fn3 which also incorporate the term "may" and the public interest standard, courts have found agency action to be reviewable under 49 U.S.C. § 1486(a) and not subject to unbridled discretion. See, e. g., REA Express, Inc. v. CAB, 507 F.2d 42, 45 (2d Cir. 1974); Utah Agencies v. CAB, 504 F.2d 1232, 1237 (10th Cir. 1974). Similarly, the FAA's exemption decision in this case cannot be considered an action committed to the unlimited discretion of the agency and thus beyond the scope of judicial review.
Moreover, § 1006(a) of the Aviation Act, 49 U.S.C. § 1486(a), specifically provides that "any order" of the Administrator, "affirmative or negative", is subject to judicial review.*fn4 This specific review provision must take precedence over the general provisions of the Administrative Procedure Act. Other circuits have sanctioned review of exemption determinations under this section. See, e. g., Coppenbarger v. FAA, 558 F.2d 836 (7th Cir. 1977) (as to procedural aspects); Priority Air Dispatch v. National Transportation Safety Board, 169 U.S.App.D.C. 94, 514 F.2d 1335 (1975) (upholding National Transportation Safety Board review of termination of an exemption under similar statute).*fn5
Before turning to petitioner's substantive claims, we must first determine the appropriate standard of review. The judicial review provision of the Aviation Act contains a standard of "substantial evidence" for findings of fact made by the FAA. 49 U.S.C. § 1486(e). However, the nonfactual analysis and conclusions of the agency in a review proceeding under 49 U.S.C. § 1486 have been judged under an abuse of discretion standard. See, e. g., Pillai v. CAB, 158 U.S.App.D.C. 239, 485 F.2d 1018 (1973); See also, Consolidated Flower Shipments v. CAB, 213 F.2d 814 (9th Cir. 1954).*fn6 Recently, in reviewing an order of the CAB pursuant to 49 U.S.C. § 1486, the Ninth Circuit applied an arbitrary, capricious or an abuse of discretion standard of review. Tiger International, Inc. v. CAB, 554 F.2d 926, Cert. denied, 434 U.S. 975, 98 S. Ct. 532, 54 L. Ed. 2d 467 (1977). The Ninth Circuit placed heavy emphasis on the decision in Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973), in which the Supreme Court applied the arbitrary and capricious standard in a case where there had been no adjudicative hearing. See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-15, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). Although review in Camp v. Pitts was pursuant to the Administrative Procedure Act, the Ninth Circuit felt that the Supreme Court's critical distinction between review of a hearing record and review in a case where no hearing was held applied with equal force to a case brought under 49 U.S.C. § 1486. The Ninth Circuit's recognition of the administrative and practical difficulties in applying a substantial evidence test to a petition for exemption is equally pertinent here.*fn7
Here the regulations specifically state that no hearing is to be held on a petition for an exemption. 14 C.F.R. § 11.27(a). Nor does petitioner have a constitutional right to a hearing before denial of an exemption. Coppenbarger v. FAA, 558 F.2d 836 (7th Cir. 1977). Thus, on the ...