Unreported / Non-Citable
Background
Corr Flight S., doing business as Nicholas Air, employed Colin DeBuse as an observer and captain-in-training. While observing flights with Captain Stacey Lee, DeBuse witnessed several alleged safety violations, including failures to record mechanical issues, maintain required cockpit staffing, and comply with oxygen-mask requirements. DeBuse reported a safety concern to management and refused to fly with Lee.
Corr Flight told DeBuse that he must train with Lee or resign, then placed him on unpaid leave and offered third-party simulator training that would avoid further interaction with Lee. DeBuse did not accept the offer, and Corr Flight later terminated him. After OSHA dismissed his AIR21 whistleblower complaint, an administrative law judge found that DeBuse’s safety report and refusal to fly with Lee were protected activities that contributed to his unpaid leave. The ALJ awarded back pay for the 15-day unpaid-leave period, interest, attorney’s fees, and costs; the Department of Labor’s Administrative Review Board affirmed.
The Court’s Holding
The Fifth Circuit denied Corr Flight’s petition for review. It first held that Corr Flight had not forfeited its constitutional challenge to the statutory removal protections covering Department of Labor ALJs. The governing regulation required a petition to identify the findings, conclusions, or orders challenged, but did not expressly require parties to exhaust each issue before the agency.
Although the ALJ’s two-layer removal protections were unconstitutional under circuit precedent, Corr Flight was not entitled to retrospective relief because it presented no evidence or argument establishing harm caused by those protections. The court also left the AIR21 award intact because Corr Flight challenged only the ALJ’s refusal-to-fly rationale and failed to brief the independent determination that DeBuse’s safety report was protected activity contributing to his unpaid leave. That unchallenged ground independently supported the order, so the court did not decide whether DeBuse’s refusal to train with Lee was protected.
Key Takeaways
- A pending attorney-fee petition did not prevent the ARB’s merits decision from being final and reviewable.
- An unconstitutional ALJ removal restriction does not justify vacating completed agency action without a causal showing of harm.
- A petitioner must challenge every independent basis supporting an agency order; leaving one basis unbriefed can preserve the order without review of the disputed alternative rationale.
Why It Matters
The decision reinforces that structural constitutional error alone does not automatically undo a completed administrative adjudication. A party seeking backward-looking relief must connect the unconstitutional removal protection to the challenged outcome.
For appellate practitioners, the case also highlights the consequences of incomplete briefing. Because Corr Flight did not challenge the finding that DeBuse’s safety report contributed to his unpaid leave, the Fifth Circuit could deny review without resolving the potentially significant question whether his refusal to fly with Lee was independently protected under AIR21.