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September 9, 1981

John H. MacDONALD, Plaintiff,

The opinion of the court was delivered by: MOTLEY


Plaintiff, John H. MacDonald, is a pilot for oceangoing vessels. He has brought the instant action in an attempt to prevent the Board of Commissioners of Pilots of the State of New York (the Board) from revoking his pilot's license for the waters of Long Island and Block Island Sounds (the Sounds) because he has reached the age of 65. Plaintiff seeks a preliminary injunction suspending, pendente lite, the operation of the regulation requiring his retirement. For the reasons given below, plaintiff's application for a preliminary injunction is denied. The following shall constitute this court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

 The Facts

 The Board is a public agency created by the New York State Legislature to regulate pilots who navigate oceangoing vessels while such vessels are sailing on New York State waters. *fn1" The Board issues three types of pilot licenses, each covering a different portion of the State's navigable waters. The instant action involves revocation of a license for Long Island Sound and Block Island Sound. The Board's jurisdiction was specifically extended in 1972 to include the waters of the Sounds. *fn2" This extension of the Board's jurisdiction to the Sounds occurred almost two years after the Board, by administrative regulation, had already refused to license pilots on other New York waters past the age of 65. *fn3" Moreover, the legislative enactment giving the Board jurisdiction over the Sounds also included a "grandfather" provision which allowed all pilots on the Sounds who had already reached the age of 60 before the legislation went into effect to obtain licenses until age seventy. *fn4" The existence of the "grandfather" provision demonstrates that the New York State legislature must have been aware of the Board's then-existing regulation requiring mandatory retirement from piloting on New York State waters at age 65.

 By letter dated February 21, 1980, plaintiff contacted the Board and requested an extension of his pilot's license past his 65th birthday. By letter dated February 26, 1980, the Board granted plaintiff a temporary extension, pending receipt by the Board of an opinion from the Attorney General of New York State concerning the legality of the regulation at issue. On October 20, 1980, the Attorney General sent an opinion letter to the Board endorsing the Board's imposition of a mandatory retirement age of 65. On October 29, 1980, the Board notified plaintiff of the Attorney General's opinion and revoked his license to pilot vessels in the Sounds. On February 18, 1981, plaintiff commenced the instant action.


 Before this court can grant relief pendente lite, plaintiff must show irreparable harm and either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly toward the plaintiff. Jackson Dairy Inc. v. H. P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979). For the reasons given below, this court has concluded that plaintiff has failed to show likelihood of success on the merits or sufficiently serious questions going to the merits of the instant action to create a fair ground for litigation. Accordingly, the application for a preliminary injunction must be denied.

 The initial thrust of plaintiff's argument is an attempt to attack the Board's action on equal protection grounds. However, plaintiff has failed to offer any satisfactory reason why this case is not controlled by the Supreme Court's recent decisions in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (Murgia ) and Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1978) (Vance ). Plaintiff admits, as he must, that, the regulation at issue need only have a rational relationship to some legitimate state objective. The Supreme Court has repeatedly stated that only a minimal showing is necessary to meet the rational-basis test. In Vance, the Supreme Court's most recent pronouncement concerning the application of equal protection analysis to mandatory retirement regulations, the Court rejected an equal protection challenge to a federal statute requiring Foreign Service personnel to retire at age 60. Writing for the Court, Justice White stated that when applying a rational basis standard, the Court

... will not overturn ... a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.

 440 U.S. at 97, 99 S. Ct. at 942.

 In the instant case, the Board points to the obvious connection between age and the diminution of various physical faculties such as eyesight, endurance, and physical agility. By definition, pilots must meet the ships they are to navigate before those ships enter protected waters. Thus pilots must meet and board ships in open sea via a swinging rope ladder called a "Jacob's ladder". Moreover, at the hearing on plaintiff's application for preliminary relief held on April 10, 1981, both sides admitted that a pilot could potentially be on a ship for as long as fourteen hours to traverse the waters covered by the license here at issue. On the record before the court, there is simply no way to say that it was "irrational" for the Board to make a connection between advancing age and a pilot's ability to perform his job.

 The court appreciates plaintiff's position. Plaintiff, through his own testimony and the testimony of other pilots, attempted at length to demonstrate his personal capacity to discharge his duties. This decision is in no way motivated by a finding that plaintiff, as an individual, cannot do his job. However, the question before the court is not whether plaintiff is still fit enough to be a pilot on the Sounds but, instead, whether it was rational for the Board to conclude that physical abilities were a sufficient component of a pilot's qualifications to set a mandatory retirement age. It is not enough for this court to be able to conclude that physical abilities are the least important qualification a pilot can bring to his job. The court would have to find that physical abilities were completely unrelated to a pilot's task. Such a finding is impossible on this record.

 In his efforts to characterize the mandatory retirement age as irrational, plaintiff also relies heavily on the absence of an age limit on either his master's license issued by the United States Coast Guard, or the pilot licenses he holds from Connecticut and Rhode Island. While the absence of mandatory retirement limits for ocean pilot licenses issued by other jurisdictions does go to the reasonableness of the Board's actions, the failure of other jurisdictions to retire ocean pilots at a given age is not enough to characterize the Board's action as irrational. This court's obligation is not to decide whether the Board's action "is wise, (or) that it best fulfills the relevant social and economic objectives ... or that a more just and humane system could not be devised." Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 317, 96 S. Ct. at 2568 quoting Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 1162, 25 L. Ed. 2d 491 (1970). By itself, the fact that other jurisdictions have not decided to retire ocean pilots cannot preclude New York from doing so if New York's decision is otherwise rationally related to a legitimate state goal.

 Plaintiff's second major argument is an allegation that the Board's action deprives him of due process. While this argument was mentioned only briefly in plaintiff's complaint, the court requested further briefing of this issue after the April 10, 1981, hearing in an attempt to fully explore all issues conceivably raised by plaintiff's application for preliminary relief. Unfortunately, both sides have failed to deal with relevant Second Circuit authority. In particular, the parties have failed to deal with the Second Circuit's recent opinion in Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978), cert. denied, 440 U.S. 945, 99 S. Ct. 1421, 59 L. Ed. 2d 633 (1979) (Palmer). In Palmer the Second Circuit rejected both equal protection and due process attacks on a decision to institute a mandatory retirement age of 70 made by the school board of Copiague, New York. In discussing the due process claim, the Second Circuit refused to conclude that the mandatory retirement age constituted an impermissible irrebuttable presumption. *fn5" Noting that a claim of ...

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