Petition for Writ of Certiorari — Robert Kreb, Petitioner v. Department of Labor

Supreme Court briefFeb 9, 2023

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FILED

FEB 0 9 2023

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Supreme Court of tfje ®ntteb States

ROBERT DOUGLAS KREB, JR.,

Petitioner,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Robert D. Kreb, Jr.

2100 SE 40th Avenue

Amarillo, TX 79118

(806) 471-3007

Pro Se

OFFICE OF THE CLERK

S'. IPREME COURT, U.S.

QUESTIONS PRESENTED

What is the appropriate standard of review when

an agency administrative law judge abuses their

discretion, is arbitrary and capricious or otherwise

unreasonable in deference to application of an

agency process statute and congressional acts, de

viates from the clear intent of the statute to dis

miss a relevant cause of action in violation of

employee protection rights?

Was the appropriate standard of review reasona

ble when agency administrative law judge in ab

sentia on motion in limine unreasonably weighed

testimony as substantial evidence despite admit

ting spoliation of other evidence saddled petitioner

with a much higher and arbitrary burden than the

statute permits?

What is an appropriate standard of review when

an agency administrative review board and the

appellate court ignore in absentia of the adminis

trative law judge and do not require court describe

how evidence was fairly balanced as in other de

novo appellate review?

What is an appropriate standard of review for

agency solicitor briefs submitted to appellate

courts knowing the factual contentions were void

of evidentiary support or specific identification of

evidence toward claims and defenses the solicitor

cited to compel the court denial of a petition for

review of administrative agency conduct?

What is an appropriate standard of review for pe

titioner to demonstrate a reasonable likelihood

QUESTIONS PRESENTED - Continued

blacklisting has for statutes do not require com

plainants to produce a proverbial “smoking gun”

but merely inferred evidence of the results resem

bling an occurrence of blacklisting?

Ill

PARTIES TO THE PROCEEDING

Petitioner Robert Douglas Kreb, Jr., was a com

plainant in administrative law judge court proceedings

and appellant in the administrative review board pro

ceedings and in the court of appeals proceedings. Re

spondents Life Flight Network, LLC, Jackson Food

Stores, Inc., Conyan Aviation, Inc. d/b/a Jackson Jet

Center were respondents in the administrative court

proceedings. The Secretary of the Department of Labor

was appellee in the administrative review board pro

ceeding and in the court of appeals proceedings.

RELATED CASES

•

Kreb v. Life Flight Network, et al., King County Su

perior Court of Washington State. Undocketed. Re

moved to Federal Court for Diversity Jurisdiction

to the U.S. District Court for Western District of

Washington State. Ordered June 6, 2016.

•

Kreb v. Life Flight Network, et al., No. C16-cv00837JLR. U.S. District Court for Western District

of Washington State. Change of venue to U.S. Dis

trict Court for the Northern District of Idaho. Fo

rum non conveniens September 14, 2016.

•

Kreb v. Life Flight Network, et al., No. 2:16-cv00288, U.S. District Court for the Northern Dis

trict of Idaho. Judgment entered June 22, 2021.

RELATED CASES - Continued

•

Kreb v. Life Flight Network, et al., ALJ Case No.

2016-AIR-0028, U.S. Department of Labor, Occupa

tional Safety and Health Administration. Whistle

blower Protection Program. Complaint dismissed

August 6, 2018.

•

Kreb v. Life Flight Network, et al., ARB Case No.

2018-0065, U.S. Dept of Labor, Administrative Re

view Board. Petition for Review Denied September

28, 2020.

•

Kreb u. Life Flight Network, et al., No 20-73497,

U.S. Court of Appeals for the Ninth Circuit. Peti

tion for Review denied June 16, 2022.

•

Kreb v. Life Flight Network, et al., No. 20-73497,

U.S. Court of Appeals for the Ninth Circuit. Peti

tion for Panel Rehearing denied October 12, 2022.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

PARTIES TO THE PROCEEDING.......................

111

RELATED CASES..................................................

111

TABLE OF CONTENTS........................................

TABLE OF AUTHORITIES...................................

Vll

PETITION FOR WRIT OF CERTIORARI...........

OPINIONS BELOW................................................

JURISDICTION.......................................................

REGULATIONS INVOLVED.................................

INTRODUCTION AND STATEMENT OF THE

CASE.....................................................................

REASONS FOR GRANTING THE PETITION ... 30

The ALJ decision demonstrates an overt

disregard for any limits of deference in

application of administrative law............. 30

A. The statute applied by the ALJ stan

dard of Review permits only two (2)

possible outcomes under 29 CFR

1979.109(a)............................................. 33

B. The ALJ, ARB and Ninth Circuit are

Absent or silent on a proper standard

of Review for Motion in limine after

Jacksons Admitted to spoliation of

evidence.................................................. 36

TABLE OF CONTENTS - Continued

Page

II.

Agency solicitors have ethical and profes

sional Duties of care to assure proper bal

ance of zeal for clients to adherence to oaths

as officers of courts to follow procedural

rules.................................................................... 38

III.

ARB and Ninth Circuit decisions are de

void of de novo considerations in their ap

pellate review................................................... 41

CONCLUSION.............................................................

APPENDIX

Denial of Petition for Review, Unpublished

Memorandum, United States Court of Ap

peals for the Ninth Circuit No. 20-73497

(June 16, 2022)...................................................... App. 1

Decision and Order Dismissing Complaint, U.S.

Department of Labor, Office of Administra

tive Law Judge Case No. 2016-AIR-0028

(August 6, 2018).................................................... App. 4

Denial of Petition for Review, U.S. Department

of Labor, Administrative Review Board Case

No. 2018-0065 (September 28, 2020)........... App. 159

Denial of Petition for Panel Rehearing, United

States Court of Appeals for the Ninth Circuit

App. 169

No. 20-73497 (October 12, 2022)

Vll

TABLE OF AUTHORITIES

Page

Cases

Barrett v. e-Smart Technologies, Inc., ARB Nos.

11-088, 12-013, ALJ No. 2010-SOX-31 (ARB

Apr. 25, 2013)..........................................................

Bell v. Bald Mtn. Air Svc., ARB No. 2019-0002,

ALJ No. 2016-AIR-16 (ARB Dec. 23, 2019).....

Bondourant u. Southwest Airlines, Inc., ARB No.

14-049....................................................................... 33,34

Funke v. FedEx Corp., ARB No. 09-004 (July 8,

2011)......................................................................... 41,42

Harp v. Charter Commc’ns, 558 F.3d 722 (7th

Cir. 2009)................................................................. 35,36

Johnson v. The Wellpoint Companies, Inc., ARB

No. 11-035, ALJ No. 2010-SOX-38 (ARB Feb.

25, 2013)..................................................................

McMullen v. Figeac Aero N. Amer., ARB No.

2017-0018, ALJ No. 2015-AIR-27 (ARB Mar.

30, 2020).................................................................. 31,36

Negron v. Vieques Air Link, Inc., ARB No. 04-021,

ALJ No. 2003-AIR-010 (ARB Dec. 30, 2004)....

Oregon Nat. Res. Council v. Marsh, 52 F.3d 1485

(9th Cir. 1995).........................................................

Vlll

TABLE OF AUTHORITIES - Continued

Page

Tennison v. Circus Circus Enterprises, Inc., 244

F.3d 684 (9th Cir. 2001)........................................

United States v. Bowen, 857 F.2d 1337 (9th Cir.

1988).........................................................................

Zinn v. American Commercial Lines Inc., ARB

No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar.

28, 2012)..................................................................

Statutes and Regulations

14 C.F.R. § 5....................

6,7,8,11

14 C.F.R. § 91.103............

14 C.F.R. § 135.267 ..........

14 C.F.R. § 135.267(a)......

14 C.F.R. § 135.267(c)......

14 C.F.R. § 135.267(d)......

12,13,15,16,18, 26

14 C.F.R. § 135.329(e)(2)....

14 C.F.R. § 135.617..........

29 C.F.R. § 18.401............

29 C.F.R. § 18.402............

29 C.F.R. § 18.802............

29 C.F.R. § 1979.102(b).....

29 C.F.R. § 1979.107(a).....

29 C.F.R. § 1979.107(d).....

29 C.F.R. § 1979.109(a).....

TABLE OF AUTHORITIES - Continued

Page

29 C.F.R.§ 1979.110(b)...

29 U.S.C. § 42121...........

49 U.S.C.A. § 42121........

49 U.S.C.A. § 42121(a)(1)

Regulations

FAAAC 00-64.

FAAAC 135-15

Rules

F.R.C.P. Rule 11(b)(3)............................................ 39, 40

Fed. R. Evid. 403....................................................

FAA NPRM Docket No. FAA-2021-0419; Notice

No. 23-05............................................................. 6,10

PETITION FOR A WRIT OF CERTIORARI

Robert Douglas Kreb, Jr., petitions for a writ of cer

tiorari to review the denial of petitions for review of

the United States Court of Appeals for the Ninth Cir

cuit in this case.

OPINIONS BELOW

The Ninth Circuit’s Memorandum is Unpublished

as Case No. 20-73497 (9th Cir. June 17, 2022) and re

produced at App. 1. The Ninth Circuit’s denial of ap

pellee’s petition for rehearing is reproduced as App.

169. The Decision and Order of the Administrative

Law Judge is reproduced at App. 4. The Administrative

Review Board Decision Affirming the Administrative

Law Judge Decision and Order is reproduced at App.

159.

JURISDICTION

The Court of Appeals entered unpublished memo

randum on June 17, 2022. App. 1. The court denied

timely petition for rehearing on October 12, 2022.

App 169. This Court has jurisdiction under 28 U.S.C.

§ 1254(2).

REGULATIONS INVOLVED

This case involves questions of interpretation of

Statutory Application of law under:

29 CFR 1979.102 - Obligations and pro

hibited acts.

(b) It is a violation of the Act for any air car

rier or contractor or subcontractor of an

air carrier to intimidate, threaten, re

strain, coerce, blacklist, discharge or in

any other manner discriminate against

any employee because the employee has:

(1) Provided, caused to be provided, or is

about to provide (with any knowledge

of the employer) or cause to be pro

vided to the air carrier or contractor

or subcontractor of an air carrier or

the Federal Government, information

relating to any violation or alleged vi

olation of any order, regulation, or

standard of the Federal Aviation Ad

ministration or any other provision

of Federal law relating to air carrier

safety under subtitle VII of title 49 of

the United States Code or under any

other law of the United States;

29 CFR 1979.107 - Hearings

(a) Except as provided in this part, proceed

ings will be conducted in accordance with

the rules of practice and procedure for ad

ministrative hearings before the Office of

Administrative Law Judges, codified at

subpart A, of 29 CFR part 18.

(d) Formal rules of evidence shall not apply,

but rules or principles designed to assure

production of the most probative evidence

shall be applied. The administrative law

judge may exclude evidence which is im

material, irrelevant, or unduly repeti

tious.

29 CFR 1979.109 - Decisions and orders

of the ALJ

The decision of the administrative law

judge will contain appropriate findings, con

clusions, and an order pertaining to the reme

dies provided in paragraph (b) of this section,

as appropriate. A determination that a viola

tion has occurred may only be made if the

complainant has demonstrated that protected

behavior or conduct was a contributing factor

in the unfavorable personnel action alleged in

the complaint. Relief may not be ordered if the

named person demonstrates by clear and con

vincing evidence that it would have taken the

same unfavorable personnel action in the ab

sence of any protected behavior. Neither the

Assistant Secretary’s determination to dis

miss a complaint without completing an in

vestigation pursuant to § 1979.104(b) nor the

Assistant Secretary’s determination to proceed

with an investigation is subject to review by

the administrative law judge, and a complaint

may not be remanded for the completion of an

investigation or for additional findings on the

basis that a determination to dismiss was

made in error. Rather, if there otherwise is ju

risdiction, the administrative law judge shall

hear the case on the merits.

This case also involves questions of how appropri

ate findings and conclusions of law were drawn from:

29 CFR 18.401 - Definition of relevant ev

idence.

Relevant evidence means evidence having any

tendency to make the existence of any fact

that is of consequence to the determination of

the action more probable or less probable than

it would be without the evidence.

29 CFR 18.402 - Relevant evidence gen

erally admissible; irrelevant evidence in

admissible.

All relevant evidence is admissible, except as

otherwise provided by the Constitution of the

United States, by Act of Congress, pursuant to

executive order, by these rules, or by other

rules or regulations prescribed by the admin

istrative agency pursuant to statutory author

ity. Evidence which is not relevant is not

admissible.

29 CFR 18.802 - Hearsay rule.

Hearsay is not admissible except as provided

by these rules, or by rules or regulations of the

administrative agency prescribed pursuant to

statutory authority, or pursuant to executive

order, or by Act of Congress.

INTRODUCTION AND

STATEMENT OF THE CASE

The issues presented in this case are genuine

conflicts between administrative agency application of

standards of review and appellate courts’ regard for

deference to agency administrative application of law

regarding protections of employees making safety re

ports and voicing concern for employer violations of

regulations.

Petitioner also presents troubling evidence of con

duct by the administrative agency solicitor trampling

upon rules of civil procedure, ethics and professional

conduct to preserve agency decisions and mask ques

tions of abuses of discretion and other potential unlaw

ful conduct of the administrative agency infringing on

employee rights and protection.

This peculiar case brings outstanding issues of

bias and prejudice for mishandling motion in limine

and failing to exclude irrelevant hearsay testimony

and having no probative cited by the court in the deci

sion as entirely from abuse of discretion regarding

hearsay testimony as substantial evidence in applica

tion of the law. The decision was formed entirely from

prejudice and bias against petitioner only after alter

ing the law setting arbitrary and higher burdens of

proof than the law permits for the petitioner and then

excused respondents from meeting their actually higher

burden.

Appropriate appellate review of this crucial over

reach escaped the Ninth Circuit. Denial of petitioner’s

review shows irreverence for the critical role the Court

serves to assure proper administrative application of

law that is kept within prescribed bounds of statutes.

These consequential oversights by the courts pose

a potential jeopardy to others that may consider bring

ing such actions for the perilous decline in whistle

blower protection through administrative review and

upheld by the appellate are punctuated if not reversed

and remanded for correct application of statutes and

appropriate standards of review.

This case has far reaching implications and broad

consequence in expansion of current regulatory over

sight and compliance measures regarding Federal

Aviation Administration (“FAA”) safety programs and

initiatives to enhance safety and regulatory compli

ance through engagement of frontline employees of

ALL Domestic and Global Aviation Service Providers

of the United Nations International Civil Aviation Or

ganization Member States (“ICAO”) under Annex 19.

The FAA issued Notice of Proposed Rulemaking

(“NPRM”) Docket No. FAA-2021-0419; Notice 23-05 on

January 10,2023. The NPRM plans expansion and up

dates to 14 CFR Part 5 [Aviation] Safety Management

Systems (“SMS”) that mandate all commercial opera

tions incorporate 14 CFR Part 5 SMS to include and

compliance with risk analysis and mitigation prac

tices petitioner such as were required by Life Flight

Network, LLC (“LFN”) Safety Management Systems

(“LFNSMS”) of Petitioner and also mandated by joint

employer Jackson Food Stores, Inc., et al. (“Jacksons”).

Previous FAA compliance requirements only targeted

14 CFR Part 121 Airlines and some CFR Part 135 Air

Carrier Operations electing SMS voluntary deploy

ment.1 The NPRM is FAA’s response to consistent pat

terns of lapses in safety and regulatory compliance

leading to aviation accidents and incidents in the lar

gesse of commercial air operators not currently re

quired to comply with SMS regulations. Public outcry

and pressure in 2020 following two Boeing 737MAX

(“MAX”) Next Generation Commercial Aircraft com

pelled congress quick action to target aviation manu

facturers and aircraft parts production firms before the

MAX NTSB Accident Investigations were completed.

Congress learned of potential safety lapses between

manufacturers and FAA oversight of design and pro

duction approvals might have been a factor and

promptly acted to require Aircraft Type and Produc

tion Certificate Holders under 14 CFR Part 21 to im

plement and comply with 14 CFR Part 5 SMS under

1 In 2010 Congress created “The Airline Safety and Federal

Aviation Administration Extension Act of 2010” (Public Law 110216 (Aug. 1, 2010) and accordingly in 2015, the FAA set forth “14

CFR Part 5 - Safety Management Systems” to be adopted by U.S.

Commercial Air Carriers operating under CFR Part 121 and to

improve public safety of commercial air travelers in response to

the crash of Colgan Flight 3407 (Feb. 12, 2009).

Congress’ Aircraft Certification Safety and Accounta

bility Act (“ACSAA”) in December 2020.2

FAA Expansion of CFR Part 5 SMS will substan

tially expand workforces’ serving safety functions’ re

quirement to comply with the same safety analysis and

reporting of petitioner on July 9,2014, Jacksons admit

ted was catalyst for his termination. This workforce’

incorporation of CFR Part 5 SMS requires assurance

of agency protections for employees reporting safety

concerns under these new mandates or SMS quality

and integrity is undermined.

The agency and appellate review in this case rep

resent a disproportionate application of law that will

have chilling effects on subjective reporting of safety

concerns by employees and their required risk analysis

as core components of CFR Part 5. LFN elected to

comply with these higher “elective” standards before

the FAA January 2015 mandate became effective.

Jacksons was a signatory with LFNSMS safety report

ing requirements and acknowledged before the ALJ,

2 14 CFR Part 5 was promulgated in January 2015 to require

14 CFR Part 121 operators to develop and implement SMS and

set out the basic requirements for those systems to include risk

and hazard identification, risk assessment of flight operations

and mitigation procedures and best practices in order to reduce

associated risk, hazards and threats to safety of operations. In

December 2020, US Congress Aircraft Certification Safety and

Accountability Act (Public Law 116-260,134 Stat 2309 (“ACSAA”)

mandated regulatory requirements Part 5 SMS for 14 CFR Part

21 Type Certificate and Production Certificate Holders after two

well publicized crashes of the Next Generation Boeing 737Max

revealed serious safety issues in Boeing’s design, certification and

production process.

requiring petitioner conformance. But, Jacksons con

tested and disputed petitioner’s required safety report

ing of July 9,2014 on the morning of July 10,2014 and

fired him hours later. The substantial evidence on the

record outlines none of Jacksons Management team

verified any of the elements of the safety reporting or

concerns for violation of regulations before deciding to

terminate petitioner July 10, 2014. The ALJ record is

undisputed; an LFN email request “to have a confer

ence call [with Jacksons] about last night.” Jacksons

reply stated with great animus for petitioner’s safety

reporting, “I just want to clarify. . . . I STRONGLY rec

ommend termination of [petitioner]” (emphasis added)

Jacksons Trial Exhibit JX21. Jacksons withheld evi

dence of their internal deliberations regarding peti

tioner and LFN email of July 10, 2014, could implicate

a number of issues including the scheduling problems

by Jacksons creating the issues or possibly debrief

Jacksons initial cumulative instructions petitioner vi

olate Flight Time Duty Period Limitations of 14 CFR

135.267. Jacksons overreaction, state of mind and ani

mus toward petitioner are all clearly undeniable in the

curt email reply to LFN and clearly formed nexus to

petitioner’s termination less than one hour later.

Congress and the FAA statutory intent to reduce

accidents and incidents leading to loss of life and to

protect workers who voice concerns of potential safety

and regulatory noncompliance could be in doubt if

the inconsistencies between rulings of the courts and

consequential conduct of the administrative agency

remain uncorrected. The FAA NPRM deliberately

restates requirements for reporting systems to assure

employees that their reports are submitted without

need to fear or have concerns of reprisal (FAA NPRM

Docket No. FAA-2021-0419; Notice No. 23-05, Pg7,

Par3, L9-13). If the FAA had perceived effectual appli

cation of the law by administrative and civil courts,

this statement is irregular.

FAA safety enhancement initiatives and regula

tory compliance cannot fully produce desired results to

reduce aviation fatalities if administrative agency en

forcing employee protections has such wide discretion

and deference to distort a statute’s application; arbi

trary and improperly burden shifting of proof “tilt”

scales weight of evidence away from employee protec

tions and harm public confidence frontline safety

workers job security for mandated safety reporting and

concerns is never fully assured.

The Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century, 29 U.S.C. § 42121

(“AIR21”). AIR21 is central to petitioner’s complaint and

many state preemption programs for whistleblower

protection of workers reporting on safety and concerns

for regulatory noncompliance. Employees enjoy greater

favor of state preemption programs and those courts

strict interpretation of AIR21 to ensure employers

meet appropriately higher burden in their defenses

than employees’ prima facie showing of retaliation to

prevail than administrative agency governance of the

statute and creates unequal protections under the fed

eral law.

SMS has evolved since 2009 inceptions as a result

of National Transportation Safety Board (“NTSB”) rec

ommendations the FAA require risk analysis and mit

igation in air ambulance and air carrier operation

preflight decision making. The NTSB recommenda

tions to the FAA highlighted contributing factors com

mon in the high accident fatality period of the time,

were principally questionable decision making and a

lack of risk aversion in preflight activities, in those ac

cident investigations.

FAA periodic expansion and update of SMS has in

creased AIR21 complaint volume and is commensurate

with Secretary of Labor policy revision to include di

recting reductions in burdens placed upon employee

complaints, however the rate of merit determinations

and agency awards for affected employees has re

mained relatively unchanged with fewer than 10 per

cent of all AIR21 cases deemed merited and ordering

relief for complainants.

State preemption programs of AIR21 are dispro

portionately more favorable toward employees and may

consequentially impact where complaints are made.

Workers protected in state preemption programs will

proactively participate in FAA expansion of CFR Part

5 while workers subject to more restrictive agency gov

ernance will realize less ambitious workers’ regard for

SMS, creating a greater jeopardy for public welfare

than those with state programs.

Petitioner worked as a pilot for Joint Employers

Jacksons and LFN as an Emergency Medical Services

(“EMS”) Air Ambulance Pilot from 2013 to 2014. The

day before his termination, Jacksons congratulated pe

titioner on finally being transitioned from joint em

ployment with LFN to sole employment with LFN as

was planned since his December 2013 hire. Until the

transfer occurred later that week, petitioner was still

required to report to his many LFN and Jacksons man

agers and supervisors who normally relayed special

flight assignment through LFN Dispatch who would

then issue those special flight assignments and other

flight requests to petitioner according to FAA Opera

tions Specification, Company Manuals and required

LFNSMS Program Protocols.

Petitioner was scheduled seven (7) 12-hour (twelve)

duty periods of night shifts beginning July 8, 2014 at

8pm and concluding at 8am July 9, 2014. Scheduling

errors by Jacksons management failed to staff the day

shift duty period offsetting petitioner’s duty from 8am

to 8pm for the week of July 8, 2014.

During petitioner’s 14 CFR 135.267(d) FAA re

quired rest period, Jacksons Chief Pilot and supervisor

(“JCP”) called to request petitioner append his 8pm

scheduled duty period start time July 8, 2014. Peti

tioner informed JCP having not entered rest before

6am that day and could not begin his shift before 4pm

and would do so accordingly. JCP stated appreciation

for petitioner’s flexibility and instructed he report to

Lewiston LFN base at 4pm and consider Jacksons may

adjust his other duty start times for that week.

Upon reporting for duty at 4pm on July 8, 2014,

petitioner was advised another pilot was able to cover

the remaining day shift so petitioner could start at

8pm. LFN later called petitioner around 6pm to preempt

the 8pm start time as the other pilot left without au

thorization, returning to his Coeur d’Alene, Idaho

home leaving the Lewiston LFN Base without a pilot

on duty. Petitioner agreed to return and report for duty

at 7pm on July 8, 2014. Petitioner received one flight

assignment during this shift to Seattle for an atypical

“milk run” LFN patient transport late in his 12-hour

shift returning to Lewiston in the early morning hours

of July 9, 2014.

Before petitioner’s July 9, 2014 shift ended, JCP

asked petitioner remain late past his 8am duty sched

ule to brief another LFN pilot in transit to cover the

day shift and may need base familiarization briefings

on operational support amenities and protocols re

quired by LFNSMS. Petitioner contacted JCP at 9am

to discuss reaching FAA duty limitations from begin

ning at 7pm on July 8, 2014 and not yet being con

tacted by the incoming relief pilot. JCP instructed

petitioner to contact LFN Dispatch and advise the base

would be out of service until a day shift pilot could re

port for duty. JCP directed petitioner enter a required

rest period of 10-hours according to 14 CFR Part

135.267(d) and begin the July 9, 2014 night shift duty

at 7pm and “be ready for anything.”

Jacksons Director of Operations Administrative

Manager (“JDO”) sent petitioner an email with peti

tioner later that morning of July 9, 2014, regarding

fueling policy changes initiated by LFN related to pe

titioner’s Seattle earlier that morning. JDO sent a

subsequent email that afternoon containing unortho

dox flight assignments and ambitious expectations

that challenged LFNSMS, company directives, proto

cols and CFR 135.267.

Jacksons recent company directives mandated

compliance with LFNSMS and attendance at annual

LFNSMS Training from LFN Director of Safety

(“LFNDS”) June 24, 2014, during petitioner’s preced

ing week-on shifts. LFNSMS required pilot preflight

actions to include safety reports, risk analysis and mit

igation of even remotely identified hazards to prevent

accidents and potential violations of FAA regulations

through use of a Flight Risk Assessment Tool (“FRAT”)

reporting. The FRAT elements all related to safety,

regulations and common environmental, human and

technical elements that statistically increased likeli

hood of contributing to an accident or incident in EMS

Air Ambulance Operations (14 CFR 135.617; FAA AC

00-64 Air Medical Resource Management; FAA AC

135-15 Emergency Medical Service/Airplane).

JDO email assignment inclined Petitioner would

not receive similar briefings of local pilots as JCP

demanded of Petitioner just hours earlier believing

the planned relief pilot had not previously received

Lewiston LFN Familiarization training as required in

LFNSMS to include such critical information as inter

nal security codes to access facilities and location or

manner of access for the aircraft ground support

provisions to refuel the aircraft and refill medical oxygen

supplies for patient transports (14 CFR 135.329(e)(2)).

The unorthodoxy of JDO assignment was also

rooted as Jacksons Vice President (“JVP”) admonished

and prohibited JDO from direct engagement with daily

operational tasks due to the high stress of the type of

operations and serious health challenges JDP suffered

and returned only recently and restricted to limited

duty responsibilities at Jacksons offices in Boise, Idaho.

The JDO instructions for petitioner’s July 9, 2014

night shift compounded the JCP Duty period adjust

ment to start at 7pm instead of 8pm and then required

a planned flight of 1 hour and 15 minutes to depart

after accumulating thirteen (13) hours of duty time.

This appeared to violate CFR 135.267(d) and Jacksons

prior mandates regarding encroachment of flight and

duty time limit regulations requiring dialogues with

JCP before departure.

Petitioner promptly replied to JDO email assign

ment and asked to consider mitigation of many defi

ciencies petitioner considered relative to LFNSMS and

CFR 135.267 limitations; as written conflicted with

other safety and company directives and was highly

irregular and extraordinary. Petitioner sought clarity

and highest levels of care to verify completeness and

accuracy of the assignment’s compliance with LFNSMS

and FAA regulations which barred acceptance of such

an assignment without following LFNSMS mitigation

requirements and mandated notification regarding

CFR 135.267 potential noncompliance. Petitioner’s

negligence to seek redress of JDO assigned discrepan

cies could be subject to FAA enforcement, civil penal

ties or certificate actions against petitioner, Jacksons

and possibly LFN.

Petitioner reported for duty at 7pm on July 9,

2014 as JCP directed and called JDO and JCP regard

ing mitigation of assignment’s deficiencies as none of

Jacksons management team had responded to peti

tioner’s reply or engaged in mitigation of any of his

concerns. JDO was unavailable and JCP stated Jacksons management reviewed petitioner’s email replied

concerns but declined to mitigate any assignment ele

ments from JDO email; directed petitioner to conduct

JDO assignments as outlined and dismissed peti

tioner’s concerns of potential violation of FAA Duty

Limits in 14 CFR 135.267(d). Petitioner rebutted the

assignment could not be completed legally after peti

tioner arrived for duty as instructed at 7pm and con

duct 1 hours and 15 minutes of flight after 8am as

JDO instructed and comply with CFR 135.267(a) & (c)

duty period and flight time limitations during the

shift.3 JCP disputed petitioner’s flight time calculation

3 LFN maintained a preflight planning chart listing all of

the minimum flight time planning required between all of LFN

operating Locations and was part of the reference material in

LFNSMS and other regulatory documents available to flight

crews at all LFN Bases. This chart was crucial to LFN assuring

high levels of safety and customer service to be used as an aid for

pilots to quickly calculate whether patient transport flight re

quests could be accommodated late into their shifts or within cu

mulative flight time limitation totals without exceeding CFR

135.267 Flight Time and Duty Period Limitations or disrupting

operations from inaccurate preflight planning. Petitioner

even though he later admitted in trial testimony along

with JDO and JVP, all stated never having flown an

airplane into Dallesport, Washington and never com

puted the flight time themselves for the assigned

flight. (14 CFR 91.103)

LFN Dispatch informed petitioner upon reporting

for duty at 7pm, his assigned aircraft was on an ex

tended flight assignment with another LFN pilot and

required petitioner to delay initiating JDO assignment

until the aircraft returned to Lewiston. LFN Dispatch

also briefed petitioner a mechanical issue was prevent

ing real-time tracking of the aircraft and maintenance

would confirm the aircraft could still be operated after

returning to Lewiston. Petitioner chose to defer pro

testing Jacksons insistence for conducting the noncompliant flight assignment until petitioner could verify

the aircraft inoperative equipment did not prohibit

petitioner accepting the aircraft for the JDO assign

ments.

demanded this evidence in requests for document production, in

motions to compel production by the ALJ and in limine, to pro

hibit Jacksons contentions influencing the court via deposition

and witness hearsay testimony disputing petitioner’s claims ref

erencing that chart in his July 9, 2014 safety reports and concerns

that 8am flight between Dallesport, Washington LFN Base re

turning to Lewiston, Idaho LFN Base with the relief pilot driving

to Dallesport from his home in Portland, Oregon would at a min

imum deviate from company safety protocols and dictate to con

tact management for any assignments reasonably expected to

exceed more than 13.5 hours of duty period. The ALJ permitted

and improperly weighed Jacksons witness testimony disputing

petitioner’s claims and recollection of flight time details in a chart

he referenced almost daily for LFN during his employment.

At 1015pm on July 9, 2014, LFN Dispatch advised

petitioner his assigned aircraft return to Lewiston

LFN base was imminent and assigned petitioner an

additional series of non-revenue flight assignments

that would preempt JDO assignments to Dallesport

LFN Base. At 1030p, petitioner’s aircraft returned to

Lewiston LFN Base and petitioner confirmed the mainte

nance status of the aircraft to completed preflight prep

arations by 1045pm to include submission of LFNSMS

Required Flight Risk Assessment Tool (“FRAT”) for

the compounded flight assignments as required by

LFNSMS. This FRAT included all the associated risks

petitioner anticipated to be reasonably and objectively

applicable to JDO’s emailed flight assignment as ap

pended by LFN. Petitioner called the JCP at 1050pm

to discuss the FRAT score as LFSMS required for mit

igation of risks and hazards identified with JCP to at

tempt to lower overall risks of his flight assignments.

JCP only then agreed on a mitigation plan petitioner

requested that should any of the currently revised

flight elements change any further or not comply with

regulations or LFNSMS safety requirements; peti

tioner would suspend all further operations and secure

a hotel room to enter a rest period and authorized pe

titioner to disregard the JDO 8am flight assignment on

July 10, 2014 expected to violate CFR 135.267(d). Peti

tioner was satisfied this mitigation complied with FAA

regulations and LFNSMS, for petitioner to accept and

successfully conduct the bulk of the assignments from

JDO and LFN Dispatch excluding the 8am reposition

ing flight.

By 1055pm LFN medical crew completed restock

ing aircraft patient medical supplies and petitioner be

gan boarding with the helicopter pilot LFN Dispatch

assigned as passenger destined for Aurora LFN Head

quarters and Maintenance Facilities. LFN called to

inform petitioner LFN Management vetoed Jacksons

mitigation and cancelled petitioner’s flight assign

ments before he could takeoff. LFN determined Jacksons mitigation was insufficient and ordered petitioner

to remain at the Lewiston LFN base. LFN confirmed

in pretrial actions, having cancelled petitioner’s flight

assignments. Petitioner texted JCP to inform him LFN

had cancelled all of the flight assignments and in

structed petitioner remain on shift at Lewiston LFN

Base.

JDO disputed petitioner’s safety reporting in a

July 10, 2014, email prior to petitioner duty ending

at 8am. JDO demonstrating clear disrepute for his

errant presumption petitioner seized Pilot In Com

mand (“PIC”) authority refusing JDO flight assign

ments. JDO email protested petitioner’s accounting of

petitioner’s FRAT elements for the July 9, 2014, as

signments after feigning an apology for not engaging

petitioner at 12am for his safety reporting but offers

no reason for failing to engage petitioner’s prompt re

sponse to the unorthodox email assignment petitioner

notified JDO he had concerns. The record clearly shows

Jacksons was not responsive to petitioner attempts to

complete the flight assignments but under revision

and in compliance with FAA regulations, LFNSMS and

company directives and protocols.

Jacksons failed to cooperate in discovery demands

of petitioner for all records, memos, emails and text

message communications internally within Jacksons

management, human resources (“JHR”) and with LFN.

The limited records petitioner did receive are clearly

identifiable as provided by LFN such as Jacksons Ex

hibit JX21, an email thread between LFN and Jacksons where LFN management are the address header

metadata. LFN’s provisions implicate internal commu

nications and email threads within Jacksons Manage

ment that were withheld from petitioner and contents

therein are purely speculative. However, other evidence

JHR produced demonstrate initial inclinations in re

sponse to learning of the flight cancellation, though

still considered an adverse employment action for pe

titioner’s safety reporting, JHR was first engaged by

management to construct letter(s) of reprimand of pe

titioner, prior to escalating to termination after JVP

12pm email outburst of spiteful animus toward peti

tioner.4

4 Jacksons Exhibit JX21 is time stamped at 1207pm Pacific

Time. Boise, Idaho where Jackson’s management headquartered

is in Mountain Time zone. JVP would have sent his email animus

regarding “STRONGLY recommend termination” of petitioner

approximately 107pm Mountain Time Zone. This demonstrates

deliberate shifting from a posture of reprimand for petitioner’s

safety reporting to the decision to terminate petitioner shortly af

ter JVP opined in the email thread as petitioner was notified of

his termination by JCP approximately 130pm Mountain Time.

The nexus and contextual relationship of Jacksons discussion of

petitioner’s safety report to the adverse actions contemplated and

then discharged are irrefutable.

LFN subsequently failed to act on July 8, 2014

declarations to complete petitioner’s transition to Full

LFN employment just that week as JDO congratulated

petitioner in July 9, 2014 emails. LFN did not respond

to petitioner attempts to contact management regard

ing the continued LFN employment promised July 8,

2014 and after Jacksons terminated petitioner.

Petitioner timely brought a complaint under the

Occupational Safety and Health Administration’s Whis

tleblower Protection Program (“OSHA” and “WPP” re

spectively) under 49 USC § 42121, the Wendell H. Ford

Aviation Investment and Reform Act for the 21st

Century (“AIR21”). Petitioner and OSHA Investigator

assigned to petitioner WPP Complaint properly served

prompt notice in 2014 and 2015 instructing Jacksons

and LFN to protect and preserve all communications

and documentation associated with petitioner’s joint

employment with LFN and Jacksons. After more

than one year of fact finding and submission of evi

dence and engagement only by LFN in the OSHA

Alternative Dispute Resolution (“ADR”) process, the

ADR Supervisor and Investigator originally assigned

petitioner’s complaint recommended a “Merit” deter

mination to the OSHA District Office Manager in

March 2016. In April 2016, another OSHA Investigator

was re-assigned to petitioner’s complaint, conducted

no supplemental investigation or follow-up as required

by OSHA WPP Investigator Manuals before overriding

original investigator recommendations for merit deter

mination and dismissed petitioner’s complaint in July

2016. Petitioner obtained investigator notes and case

work product through a Freedom of Information Act

request (“FOIA”). Those documents and investigator

notes revealed a strong propensity of Jacksons man

agement to supply untruthful statements and personal

attacks on petitioner. The reassigned investigator

never completed any follow-up interviews or disclosure

of these statements by Jacksons to offer petitioner op

portunity to rebut or impeach those statements as re

quired by WPP Investigator manuals. Even so, the

reassigned investigator reversed prior investigative

team recommendations for merit determinations to

recommend a non-merit determination and dismissed

petitioner’s complaint. Petitioner promptly objected ac

cording to the statute and the complaint was assigned

to the Cherry Hill, New Jersey, Office of Administra

tive Law Judge (“ALJ”) for a de novo review of peti

tioner’s complaint and objections to the OSHA WPP

Investigator determination.

During ALJ pre-trial discovery, LFN sought medi

ation and subsequent settlement with petitioner. The

ALJ approved LFN’s settlement terms with petitioner

and dismissed LFN from the case.

Jacksons did not cooperate with petitioner’s dis

covery requests and other pretrial activities forcing pe

titioner to pursue sanctions and a motion to compel

production of documents and evidence relied upon in

petitioner’s complaint for introduction as trial evi

dence. At opening of trial July 2017, petitioner filed

Motion in limine to prohibit Jacksons prejudicing the

court with hearsay testimony, irrelevant or other evi

dence holding no probative value that could prejudice

the court due to their witness prior conduct before

WPP Investigators and in pretrial depositions.

Petitioner’s motion in limine did not attempt to

resolve a factual dispute or weigh evidence. Petitioner

FOIA of OSHA WPP Investigation files revealed Jacksons manufactured and untruthful statements swayed

investigators non-merit determination after April 2016.

In light of probative and relevant evidence withholding

by Jacksons, petitioner sought to preclude Jacksons

continuation of distortion and manufacture of facts

through hearsay trial testimony after spoliation of doc

umentation evidence petitioner sought in discovery.

Petitioner’s desired to inhibit potential testimony be

lieved could distract the court from the real issues in

the case Tennison v. Circus Circus Enterprises, Inc.,

244 F.3d 684, 690 (9th Cir. 2001) or create an unfair

prejudice against petitioner. The ALJ silence on the

motion in limine would seem to disagree with United

States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988)

where appellate affirmed exclusion of even probative

evidence to be proper under Fed. R. Evid. 403 for the

probative value had been substantially outweighed by

the potential danger of prejudicial harm to the appel

lant. The ALJ took petitioner’s motion under advise

ment stating a desire to hear and weigh that evidence

as trial progressed in light of the destroyed evidence

Jacksons withheld.

The ALJ decision affirmed by ARB and the Ninth

Circuit reflect disproportionate regards for petitioner’s

unanswered motion in limine as potential abuse of

discretion by the ALJ decision not describing

appropriately applied balancing test(s) to determine if

unsupported hearsay testimony held probative value

that outweighed dangers of potential prejudicial harm

to petitioner after ALJ arbitrarily and capriciously ex

cused Jacksons spoliation of evidence petitioner knew

to exist and sought in discovery to substantially sup

port various claims. The ALJ inexplicably admits an

abuse of discretion in his decision citing discretion of

the court to be swayed by clearly prejudice inducing

hearsay testimony from Jacksons and is improper,

then disregarded in ARB affirmation and appellate de

nial of the petition for review.

Petitioner asks this Court to consider the abuses

of discretion, misapplication of rules of evidence to

meet substantial evidence requirements of the statute

and absent de novo review of these deficiencies un

justly harms petitioner and other potential claimants

of wrongdoing under the statute.

The ALJ stated petitioner met prima facie bur

dens at trial closing but was unclear the protected ac

tivity actually involved a specific violation of a FAA

regulation. The ALJ ordered petitioner submit written

closing arguments to describe actual regulation viola

tion involved in the protected activity to prevail in the

AIR21 case. Petitioner complied with this artificial in

ducement of AIR21 by detailing the framework 14 CFR

135.267 related to the JDO assignment for 8am July

10, 2014 after accumulating thirteen (13) hours of duty

with fourteen (14) hours’ limitation. Petitioner again

restated this fundamental request by the ALJ in reply

brief to Jacksons closing arguments.

On August 6,2018, ALJ issued a Decision and Or

der dismissing petitioner’s complaint. The ALJ acknowl

edged the surety of whistleblower protections as argued,

however, decided petitioner’s marked professional ex

perience barred his protection from reporting potential

violations of regulations because he held power and

authority to cease activities that would exceed Flight

Time and Duty Period Limitations of 14 CFR 135.267.

The ALJ further described Jacksons assignment of the

excessive duty was not relevant to a whistleblower

complaint under AIR21. The ALJ disregarded peti

tioner testimony and the record reflecting Jacksons

inducements of similar subjective events and circum

stance beyond petitioner’s control on June 24, 2014

caused another violation of 14 CFR 135.267 just fifteen

(15) days earlier. The ALJ absolved Jacksons from any

wrongdoing for the multiple flight assignment clearly

violated CFR 135.267 and was contrary to LFNSMS

and other directives of Jacksons as was established in

the record.

By the standards of review applied in the ALJ de

cision affirmed by ARB, Licensed Auditors and Ac

countants of the investment and securities industry

are in great peril as the Sarbanes-Oxley Act of 2002

(“SOX”) are required to seek their protections for re

porting violations of corporate accounting law under

provisions of AIR21. Just as Congress reacted to

737MAX issues of subdued potential whistleblowers

contributed to significant losses of life, Congress en

acted SOX in 2002 on the heels of Enron, WorldCom

and Tyco violations of finance and securities law to

protect highly skilled and seasoned professionals who

may report violations of securities law are then ad

versely affected by employers for those reports. The

ALJ asks this Court to recognize and defer to agency

discretion in determining that such professionals in a

position to control whether a violation of security law

occurs, their reports to officials regarding the company

directive to those professionals to violate the law, are

not engaging in protected activity under statute. This

absurdity is just how the ALJ decided in petitioner’s

case regarding the directed assignments from multiple

managers not first collaborating with each other com

pounding expectations of petitioner that would neces

sarily cause violation of the CFR 13.267(d) regulation

and orders and standards discharged by company di

rective for petitioner to communicate with manage

ment if even a small chance existed of violating the

exact regulation petitioner raised.

The ALJ decision also included unreasonable def

erence to the statute broad inclusion of potential devi

ations petitioner included other concerns raised July 9,

2014, notwithstanding inducements of 14 CFR 135.267

violations. LFNSMS and directives prescribed in many

communications by Jacksons are in the tribunal rec

ord. The substantial evidence of records before the tri

bunal demonstrate beyond question for meeting the

burden of the statute broadly encompassing frame

work appropriately qualified as “any order, regulation,

or standard of the [FAA] ... or any other provision of

Federal law relating to aviation safety ...” (49 USC

§ 42121(a)(1)). Though not raised to great extent for

appellate review of the decision for the limited and

rightly restrict space and time to draw distinction of

errors by lower courts, statutory requirement for de

novo review on appeal should direct appellate to fully

embrace the whole of the record and impact how peti

tioner relief is sought.

Petitioner timely appealed the ALJ decision to De

partment of Labor, Administrative Review Board

(“ARB”) for arbitrary, capricious and unreasonable ap

plication of the statute to include mishandling peti

tioner’s motion in limine to allowing prejudice of the

tribunal and bias in the decision.

ARB affirmed the decision contrary to Negron v.

Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003AIR-010 (ARB Dec. 30, 2004) having not outlined de

novo review requirements or otherwise account for

ALJ split from another simultaneously tried case Bell

v. Bald Mtn. (incl. herein) according to statute.

Petitioner brought timely petitions for review and

for panel rehearing before the Court of Appeals for

the Ninth Circuit. The court denied the first petition

merely restating questionable process and findings of

the ALJ and ARB holding no regard for petitioner call

ing into question the agency deviation from normal

practice of review or court’s own disparate review of

other actions.

Petitioner sought to become a professional aviator

after death of a dear family member in Christmas

1982 when a United States Air Force (“USAF”) Boeing

B-52 Bomber crashed in California. Petitioner’s cousin

whom he had spent the weekend in Sacramento prior

to the crash was assigned as Navigator Instructor to

that flight. Petitioner later learned from colleagues

and professional comradery at industry symposiums

and safety training meetings the great extent of sys

temic failures and error chains that contributed to the

great loss of life in that crash.

From the early beginnings of his professional ca

reer in 1993, SMS was only dawning from its metamor

phosis from health care surgical program roots and

into military aviation ranks before civilian aviation

identified those industrial successes and began to de

veloped safety platforms for civilian aviation. Peti

tioner sought to find value from near and actual losses

of friends and colleagues throughout his aviation ca

reer and drew from those loses, a strong desire to un

derstand and learn how just a minimal set of errors

and chains of events progressively developed until

multi-million dollar aircraft with the best equipment

and highly trained crews perish mere moments after

takeoff as petitioner’s cousin perished in 1982.

LFNSMS promoted robust safety standards peti

tioner was required to conform. LFNSMS relied on

identification of hazards, threats and error chains that

National Transport Safety Board Accident Investiga

tions report are common contributing factors in avia

tion accidents. In 2009 after tremendous loss of life and

aircraft in EMS Air Ambulance Operations, the NTSB

recommended the FAA improve oversight over EMS

Air Ambulance operators under 14 CFR Part 135.

LFNDS stated, “EMS pilot is one of the most dangerous

civilian jobs.” (CX 98,144:10-147:2 18:8-21:2; 25:4-12

(Miles Deposition).

SMS holds prolific core values for system analysis,

situational awareness, risk assessment and hazard

identification in preflight planning and decision mak

ing requiring “2-tier operational control” protocols

where management material participation with pilots

effectively identifies hazards, assesses and mitigates

risks to lower acceptable levels jointly decline higher

risk assignments. These core SMS values and protocols

are included in LFNSMS as petitioner employed July

9, 2014. Jacksons fired petitioner for his mandated

reverence of LFNSMS and for reporting Jacksons lost

situational awareness prescribing two different as

signments in violation of regulations.

Despite ALJ prejudice and bias in the decision, the

record alleged in support against petitioner does not

cite any abuse of any other safety report or that peti

tioner ever refused or declined a flight. Petitioner

demonstrated liberal flexibility to schedule needs and

accommodation for Jacksons gross scheduling error

while other pilots left their post without authorization

or communication. Petitioner fully endorsed his sched

ule adjustments to LFN and Jacksons benefit even un

der circumstance similar to exceptional assignments

and best laid plans of June 24, 2014, violation of CFR

135.267. Petitioner sought Jacksons engagement ac

cording to LFNSMS preventing prior deviations and

reduce risks of repeating previous errors.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit denial split from other rulings

recognizing exceptional importance of applying proper

standard of appellate review for agency overreach or

improper deference to application of statute and bias.

There remains significant question of the agency def

erence applied in this case as petitioner offered several

opportunities for realignment of agency decision and

conformance to statute intentions from FAA and Con

gressional directives.

This Court should grant review to cure disparity

between agency and appellate review within circuit

courts for other rulings reliance on relevant facts and

substantial evidence probative to complaints.

This Court should consider if agency administra

tion and appellate review appropriately bound the

agency to deference limitations in application of stat

utes to assure constitutional protections are unfet

tered by breaches of agency boundaries of law not

limited to FAA SMS as corporate finance whistleblow

ers subject to the same agency deficiencies of review

under SOX.

The ALJ decision demonstrates an overt

disregard for any limits of deference in ap

plication of administrative law.

The ALJ decision departed from clear guidance of

statutes while simultaneously deciding another nearly

identical case heard in parallel to petitioner. That

closely situated case conducted hearings prior to peti

tioner but published findings after petitioners. The de

cisions of two closely situated held nearly identical

format and reasoning, however, contradictory deci

sions.5

5 McMullen u. Figeac Aero N. Amer., ARB No. 2017-0018,

ALJ No. 2015-AIR-27 (ARB Mar. 30, 2020) is a perplexing con

trast in how evidence was weighed and applied under the sub

stantial evidence standard of review according to the statute.

Figeac was heard by the exact same tribunal as petitioner just

prior to petitioner’s July 2017 hearings yet, the AU delayed issu

ance of a decision and order almost 2 months following petitioner

in October 2018. The AU outlines McMullen’s case as plagued

with disciplinary issues over a sustained period of time that in

tensified prior to safety reporting by McMullen as having wit

nessed a potential violation of Figeac Aero in instructions to a

coworker and not a violation he was tasked to materially partici

pate. The AU produced a nearly verbatim decision and order as

for petitioner’s August 2018, including the courts discretion to

weigh testimony absent substantial evidence supporting that tes

timony. Curiously, the AU outlined also in the decision and order

in Figeac Aero as the employer having established fairly clearly

and convincingly the disciplinary issues with McMullen were es

calating toward a likely discharge at the time of the third party

safety reporting that could be construe ad an opportunistic con

venience for McMullen to escape or defer the imminent adverse

action he had to be aware was developing. The ALJ abused his

discretion and acted arbitrary and capricious in his own decision

and order of both McMullen and petitioner if the decisions are

viewed side by side as the AU also took both matters “side-byside.” The ALJ gave McMullen great deference and benefit of the

doubt in application of the statute for his third party reporting of

safety concerns while holding petitioner to an exceptionally high

burden of deference to the same statute as McMullen but for re

porting safety concerns and potential of direct violations of regu

lations petitioner had received from his employer who held no

disciplinary course or pending adverse action to reference for the

AU to outline as in Figeac Aero which settled with McMullen in

The two complaints coincidentally adjudicated,

while closely situated, held distinctly differing sub

stantial application cited in their cases, received dis

proportionately different prevailing decisions hinged

entirely on discretion to weigh testimony over the rec

ord of documented evidence. The ALJ disregarded

substantial documented evidence of Figeac to favor

McMullen supported mostly from testimony. The ALJ

found one of only three Jacksons witness testimony

most credible, disregarded admitted spoliation of evi

dence and substantial evidence documentation of pe

titioner to favor Jacksons. Both cases demonstrate

prejudice and bias in addition to unreasonable defer

ence and abuses of discretion for agency application of

the statute.

Whether an abuse of discretion or inadvertent and

disproportionate application of deference between the

two parallel cases, the deference is clearly unevenly

applied in a manner set forth below and shows unbind

ing applications of deference in administrative agency

standards of review.

the course of seeking appellate review by the ARB which may

have had a compelling argument to reverse the ALJ decision and

award for McMullen prevailed while petitioner in contrast did

not.

A. The statute applied by the ALJ standard

of review permits only two (2) possible

outcomes under 29 CFR 1979.109(a).

No prior decision splits from the statute requiring

issuance of only one of two possible outcomes after try

ing of facts under substantial evidence considerations.

The courts discretion is limited only to: 1) finding com

plaint is merited by prima facie showing of nexus that

protected activity contributed to the discrimination

but for protected activity; or 2) respondents demon

strate clear and convincing evidence adverse actions

would have occurred absent protected activity.

The tribunal stated for the record at trial closing,

petitioner had proven the nexus of protected activity.

However, petitioner was saddled with exceptional bur

dens to show protected activity related to FAA regula

tions. This application of law required much higher

burdens statutes permitted as actual violations only of

regulation is not the threshold for protected activity.

Even so, petitioner met this higher burden and demon

strated CFR 135.267 infractions as result of multiple

supervisors’ controlling interests over issuing peti

tioner’s assignments on July 9, 2014. Bondourant v.

Southwest Airlines, Inc., ARB No. 14-049 previously

held by the agency required no such burden, much less

arbitrary inflated thresholds.

The ALJ decision remarks petitioner met his arbi

trary burden, however retracted the prevailing argu

ment outlining petitioner controlled whether or not

regulations would actually be violated and therefore

could not actually engaged in protected activity, again

in deference to Bondourant upholding at ARB.

The ALJ position and ARB affirmation are coun

ter-intuitive to Johnson v. The Wellpoint Companies,

Inc., ARB No. 11-035, ALJ No. 2010-SOX-38 (ARB Feb.

25, 2013); Zinn v. American Commercial Lines Inc.,

ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28,

2012); and Barrett u. e-Smart Technologies, Inc., ARB

Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr.

25, 2013) all correlate employees need not report ac

tual violations nor must violations occur; and even em

ployees mistaken regarding potential violations are

protected.

The AU disregarded statute relevance to peti

tioner’s other mandated safety reporting of July 9,

2014 FRAT and emails. The ALJ deference to limit ap

plication of the statute to only actual violation of a reg

ulation disregarded FRAT consideration by company

directive and LFNSMS compliance directly derives

from FAA “order, regulation, or standard of the [FAA]

... or any other provision of Federal law relating to

aviation safety ...” (AIR21). The statute broad lan

guage form many protected activities petitioner en

gaged in the mandated FRAT. ALJ and ARB disregard

this application was improper and unreasonable defer

ence to agency application of statute and beyond abuse

of discretion.

The ALJ saddled petitioner with no other known

arbitrary burden outside of showing safety reporting

related to FAA regulations ad held no argument

defining protected activity. Substantial evidence of doc

uments on record demonstrates Jacksons believed pe

titioner engaged in protected activity by his safety

reports and concerns. The ALJ patently reneged on

stated tests for petitioner in an abuse of discretion and

the appellate inappropriately affirmed petitioner did

not want to fly when de novo review demonstrates pe

titioner exhaustively sought to conduct assignments

safely and legally compliant before LFN cancelled the

flights for recognition of assignment’s deficiencies.

The ALJ departed from administrative agency

reasonableness standards requiring both subjective

and objective consideration to abuse its discretion to

decide the reasonableness of petitioner’s concerns and

safety reporting Oregon Natural Res. Council v. Marsh,

52 F.3d 1485, 1492 (9th Cir. 1995) "... courts should

not defer to an agency without carefully reviewing the

record and satisfying themselves that the agency has

made a reasoned decision ...” The ALJ did not outline

an analysis in the decision how he arrived at any of

petitioner’s safety reporting to be unreasonable and

dismissing the action and the appellate review is silent

on petitioner’s possible inarticulate implications of

such err.

In Harp v. Charter Commc’ns, 558 F.3d 722 (7th

Cir. 2009) the appellate review examined with great

scrutiny “reasonable belief” under both subjective and

objective standards. Merely stating petitioner was un

reasonable without demonstrating any examination or

application of both standards regarding “reasonable

ness” of petitioner’s reports are sorely lacking by the

ALJ and appellate review in departure from Harp.

Moreover, it is impossible to theorize any other pilot

could be similarly situated on July 9, 2014, to peti

tioner’s expansive career and recent experience such

as June 24, 2014, duty period violations when he was

faced with the unorthodox assignment containing a lit

any of defects and violations.

The ALJ decision infers the court review granted

substantial deviation outside of deference and allowed

bias or prejudice emulate from the decision unchecked.

The appellate review is void of reason or clarity for de

cisions’ grandiose for nonexistent and unconscionable

burden of proof post trial without Jacksons having ar

gued any such position as the ALJ enforced; dismissing

Jacksons much higher burden shifting requirement to

demonstrate clear and convincing evidence the adverse

action against petitioner would have still occurred ab

sent the protected activity. This directly contradicts

the parallel and inverse Figeac decision among others.

B. The ALJ, ARB and Ninth Circuit are ab

sent or silent on a proper standard of

review for Motion in limine after Jacksons admitted to spoliation of evidence.

Petitioner exhausted all cordiality for Jacksons co

operation in discover and production of documents

known to exist and implied in email communications

produced by LFN after Jacksons and LFN were noticed

in November 2014 for preservation and protection of

case evidence. OSHA WPP Investigator assigned to

petitioner’s complaint advised Jacksons federal law

required preservation of evidence related to peti

tioner’s complaint in March 2015. Jacksons frustrated

petitioner’s every attempt to obtain documentation

evidence in discovery petitioner knew Jacksons pos

sessed. Some evidence was included in FAA record

keeping requirements for retention up to five (5) years.

ALJ denied motions to compel and sanctions against

Jacksons. Petitioner was forced to file Motion in limine

to prohibit Jacksons from entering hearsay testimony

as probative evidence to prejudice the court after dis

covering untruthful statements to WPP investigators

and in depositions of Jacksons witnesses. The AU ex

cused Jacksons admitted negligence failing to pre

serve even electronic backups of documents lost during

company computer server maintenance. The ALJ fur

ther excused Jacksons from preservation of physical

documents and papers due to the age of the case and

passed time being an unreasonable amount of time to

preserve evidence. The ALJ took the motion under ad

visement intending to hear testimony and weigh it

appropriately during July 2017 hearings. The ALJ de

cision split from others; how credibility and determi

nation of witness’ testimony weight was the courts

discretion. The ALJ acknowledged the absence of sub

stantial supporting evidence of testimony left the ALJ

to their discretion to weigh that hearsay testimony un

der substantial evidence requirements of the statute

(29 C.F.R. § 1979.110(b)). The ALJ failed to cite any de

liberative process or other thoughtful analysis used to

balance the evidence versus prejudice.

The ARB and Ninth Circuit split from other deci

sions and de novo review of motion in limine; where

prior rulings questioned quaint rulings to deny or

grant such motions as failing to describe how deliber

ate balancing measures taken weighed implications of

rulings with or without the subjective evidence accord

ing to substantial evidence standards to prevail in the

motion. The appellate review sought no such answer to

petitioner’s pleadings.

The appellate review declined to acknowledge dis

crepancies of spoiled evidence weight by the ALJ as it

related to the hearsay testimony and prejudice of the

court’s creation. This enabled the ARB and Ninth Cir

cuit to evade discussions of appropriate standards of

appellate review given other cases and whether ALJ

withholding ruling on motion in limine inappropri

ately expanded deference and discretion to substan

tially weigh hearsay evidence to dismiss petitioner’s

complaint. This uncorrected “pocket veto” of a relevant

motion condoned by the Ninth Circuit implicitly ex

pands an already excessive deference for application of

the administrative statute and condones an agency’s

subversive judicial activism.

II.

Agency solicitors have ethical and profes

sional duties of care to assure proper bal

ance of zeal for clients to adherence to

oaths as officers of courts to follow proce

dural rules.

The Department of Labor commission protects

workers from subjective employment standards,

unsafe conditions and houses OSHA and WPP com

plaints. Congress designates the DOL Secretary to

become the adversary if either party objects to admin

istrative review findings in petition to the appellate

court. This statute structure implies congress believed

disaffected workers would not be the disproportionate

number of adversaries appearing before appellate

courts they are; arguing against the agency protecting

them from employer abuses. The statute structure

oversight of the ALJ by licensed attorneys suggests

congress intimated licensed attorneys would not jeop

ardize bar standings and other credentials to produce

untruthful briefs and certify false statements the ALJ

acted appropriately and according to precedent defer

ence of application of the administrative statute.

Rule 11 of Civil Procedure precludes attorneys

from signed statements and certifications of factual

contentions that do not have evidentiary support or

specifically identify evidence toward claims and de

fenses they represent. Petitioner’s briefs before the

appellate were answered by agency solicitors which

signed statements and certifications of factual conten

tions in the answers to petitioner that did not have ev

identiary support or specifically identified evidence

toward defenses they represented. Solicitor bar cre

dentials created a bias and prejudice in petitioner’s

appellate review resulting in decisions denying peti

tioners appropriately sought appellate review de novo.

The solicitor failed to become familiar with the whole

of the case record and signed and certified statements

before the Ninth Circuit which were untrue and lacked

sufficient evidence or identified the evidence support

ing defenses of the DOL. The denial of the petition

clearly demonstrates the bias and prejudice of the

Court for their decision restated the untrue and un

supported signed statements of the Solicitor and

demonstrates the appellate failed to review the case

de novo, for they would have discovered the solicitor’s

indiscretion at either of petitioner’s responsive plead

ings.

The DOL Solicitor did not answer petitioner’s

challenges to factual contentions not factually sup

ported by the record. Petitioner opposed the solicitor

substitution of counsel before the Ninth Circuit for fear

new counsel would not be sufficiently aware of the

facts of the case to appropriately answer petitioner.

The appellate did not rule on petitioner’s opposition

before substitute counsel for the solicitor recited the

same erroneous ARB contentions to certify their brief

ings without evidentiary support or specific identifica

tion of evidence toward the DOL defenses.

In matters before other courts, the remedy for vio

lation of Rule 11 could be sanctions and other appro

priate relief from applicable rules. In this matter

before this Court, the solicitor violations of rules may

not have been properly articulated in proper form or

manner, however were outlined before the Ninth Cir

cuit, well known for admonishment of counsel deliber

ate or involuntary mistakes and previously reversed

or remanded such serious errors prejudicing a court’s

decisions. In denying petitioner’s review, the Ninth Cir

cuit candidly restated errant factual contentions of the

Solicitor as petitioner strenuously objected. Left uncor

rected by this Court, adversarial postures Solicitors

pose against disaffected workers and a Ninth Circuit

silent on transgressions of the solicitor to obtain favor

able rulings would seem at odds with Congress intent

in assigning the appellate charge over the review pro

cess and the constitutional rights of American workers

subject to the same safety reporting petitioner was

mandated July 9, 2014.

III. ARB and Ninth Circuit decisions are de

void of de novo considerations in their ap

pellate review.

Decisions to deny petitioner’s review of agency

dismissal are absent of citations noting de novo consid

eration for lower court rulings and simply restated er

roneous findings and left significant questions of law

unanswered; whether the ALJ applied statutes appro

priately and whether appellate properly reviewed that

application within permissible deference to the agency.

Of all the agency shortcomings petitioner cited for

appropriate review, the appellate is the only oppor

tunity for disaffected claims to be afforded highly

trained legal review of administrative agency conduct

in exceptionally important causes; protection of work

ers making safety reports and concerns for regulatory

compliance.

In Funke v. FedEx Corp., ARB No. 09-004 (July 8,

2011) the complainant followed mandated training

making reports protected under SOX but the ALJ

dismissed after very restrictive application of the stat

ute to who and how reports are raised to be protected

activity. The ARB reversed and expanded the protected

activity to include third party reporting as protected.

The lack of de novo review of petitioner shows a split

from Funke to ensure ALJ is not overstepping discre

tion in application of statutes.

Just as petitioner decision making and safety re

porting on July 9, 2014 was the last opportunity to ad

dress linear progression of deficiencies exponentially

increasing chances of an accident, petitioner asks this

Court to consider the Swiss cheese model of aviation

safety where stages of safety controls designed to en

sure error chains do not develop or find their way

through larger holes of deficiency that become aligned

to develop “error chains” where human disinterest or

indifference or distraction are greatest threats to

SMS efficiency. The levels of controls applied in avia

tion safety could be correlated with legal review of

this case beginning with WPP investigators. Defects

of agency statute application by investigators or def

erence combined with deficient or inconsistent applica

tions of legal review are a dangerous error chain that

could erode public confidence that worker protections

are assured by the courts when the agency review be

fore them gets it wrong.

This Court should question the proper application

of procedural rules at each stage of review as well as

administrative deference to application of law so

workers making safety reports may do so without fear

of reprisal.

CONCLUSION

The Supreme Court should therefore grant this

petition for writ of certiorari to bring clarity to con

straints of administrative agency deference and sub

sequent standards of appellate review are applied

appropriately to these matters of exceptional im

portance for safety initiatives of the FAA and Congress

to protect workers engaged in mandated safety report

ing and for potential regulatory violations.

Respectfully submitted,

Robert D. Kreb, Jr.

2100 SE 40th Avenue

Amarillo, TX 79118

(806) 471-3007

Pro Se

APPENDIX TABLE OF CONTENTS

Page

Denial of Petition for Review, Unpublished

Memorandum, United States Court of Ap

peals for the Ninth Circuit No. 20-73497

(June 16, 2022).................................................. App. 1

Decision and Order Dismissing Complaint, U.S.

Department of Labor, Office of Administra

tive Law Judge Case No. 2016-AIR-0028

(August 6, 2018)................................................ App. 4

Denial of Petition for Review, U.S. Department

of Labor, Administrative Review Board Case

No. 2018-0065 (September 28, 2020).......... App. 159

Denial of Petition for Panel Rehearing, United

States Court of Appeals for the Ninth Circuit

No. 20-73497 (October 12, 2022)

App. 169

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.