Petition for Writ of Certiorari — Robert Kreb, Petitioner v. Integra Aviation, L.L.C., et al.

Supreme Court briefJun 27, 2024

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23-1362

No. 23-

FiLED

JUN 2 7 2024

In the

Supreme Gkmrt of tlje l&mtzb BtuttB

Of > CEO"" !E CLERK

SI. REML

>'RT, U.S.

ROBERT DOUGLAS KREB, JR.,

Petitioner,

INTEGRA AVIATION, LLC, et al.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court Of Appeals For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert D. Kreb, Jr.

2100 SE 40th Avenue

Amarillo, TX 79118

(806) 471-3007

Pro Se

116880

COUNSEL PRESS

(800)274-3321 • (800)359-6859

received

JUL - 1 2024

QUESTIONS PRESENTED

Is it appropriate for courts to contend with this

Court or Congress established law through sua

sponte invocation of affirmative defenses and dismiss

actions for want of subject matter jurisdiction from

the Administrative Procedures Act despite this

Court remand of subject matter jurisdiction exactly

as Congress intended to abut agency conduct that

violates Article III rights of Article II litigants

pursing enforcement of this Court’s established law,

and as that conduct can originate from admitted or

suspected Appointments Clause violations?

Is it appropriate for courts to dismiss sua sponte an

aggrieved party’s judicial review Congress intended

and mandates for agency misconduct such as known

or suspected Privacy Act violations explicit in 1996

Pilot Records Improvement Act and the Freedom of

Information Act where courts have a prevalent history

holding subject matter jurisdiction under state and

federal causes of action?

Is it appropriate for courts to sua sponte dismiss

Congress mandated judicial review and enforcement

of agency orders that are explicit for whistleblowers’

immediate reinstatement; that cannot be stayed for

any reason; and that sua sponte dismissal has the

deleterious effect of vacating the agency order without

due process to the whistleblower and renders the law

inconsequential from that judicial activism?

Is it appropriate for courts to uphold or affirm sua

sponte dismissal despite exhaustive post judgment

relief motions, the present and developing diversity

claims and valid questions of law were not provided

required notice of court intent and precluding without

offering substantial reasoning, why any amended

claim could not overcome or cure any alleged defect?

Is it appropriate for courts to untimely sua sponte

dismiss matters without required hearings where

the court is bound by law to disclose potential conflict

with any party to the action that must be waived if .

the court has not volunteered recusal?

Ill

PARTIES TO THE PROCEEDING

Petitioner Robert Douglas Kreb, Jr. was a complainant in

the U.S. District Court of Northern Texas Amarillo and

appellant then petitioner for full panel review en banc in

the Fifth Circuit Court of Appeal. Respondents Integra

Aviation, LLC dba Apollo MedFlight; Apollo MedFlight,

LLC; Flight Mechanix, LLC, Young Firm, P.C.; Panavia

Air Taxi, LLC dba Haven Aero, LLC; Lee McCammon,

Thomas L. Klassen; Joseph H. Belsha, III; Whitney

Smith; Travis Lamance; Jeremi K. Young; and Julie A.

Su, Acting Secretary of the United States Department

of Labor were respondent appellees in the U.S. District

Court and Fifth Circuit Court of Appeals.

RELATED CASES

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

Superior Court of Washington State. Undocketed.

Removed 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. District

Court for the Northern District of Idaho. Forum non

conveniens September 14, 2016.

• Kreb v. Life Flight Network, et al., No. 2:16-cv-00288,

U.S. District Court for the Northern District of Idaho.

Judgment entered June 22, 2021.

• Kreb v. Life Flight Network, et al., ALJ Case No. 2016AIR-0028, U.S. Department of Labor, Occupational

Safety and Health Administration. Whistleblower

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 Review

Board. Petition for Review Denied September 28,2020.

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

Court of Appeals for the Ninth Circuit. Petition 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, Petition for

Panel Rehearing denied October 12, 2022.

• Kreb v. Department ofLabor, No. 22-762, U.S. Supreme

Court, Petition for writ of certiorari Denied April 17,

2023.

• Kreb v. Apollo MedFlight, LLC, Case No. 2022-AIR00008, U.S. Department of Labor, Occupational

Safety and Health Administration. Whistleblower

Protection Program. Original Award and Orders for

Reinstatement issued April 26, 2023. Administrative

Law Judge hearing objection of Respondent vacated

award and order for reinstatement dismissing

complaint February 16, 2024.

• Kreb v. Apollo MedFlight, LLC, Case No. 2024-0027,

U.S. Dept of Labor, Administrative Review Board

Petition for Review Denied May 23,2024.

• Lindsey Gulden and Damian Burch v. Exxon Mobil

Corp., U.S. Dept, of Labor, Occupational Safety

and Health Administration Case No. 6-1730-21-120,

Secretary Findings in favor of Complaints and Orders

for Reinstatement on October 6,2022.

• Lindsey Gulden and Damian Burch v. Exxon Mobil

Corp., U.S. Depart, of Labor, Administrative Law

. Judge Case No. 2023-SOX-00021 and 2023-SOX-00022.

Matter pending.

• Lindsey Gulden, et at., v. Exxon Mobil Corp., Case No.

7418-MAS-TJB (22-7418), US District Court, District

of New Jersey, Memorandum Opinion and Granting

Defendant Motion and Order to Dismiss Complaint to

judicially enforce reinstatement orders, April 19,2023.

• Lindsey Gulden and Damian Burch v. Exxon Mobil

Corp., Case No. 23-1859, U.S. Court of Appeals for

Third Circuit, Oral Arguments held March 6, 2024,

decision pending.

Vll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

RELATED CASES

TABLE OF CONTENTS

Vll

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

REGULATIONS AND CONSTITUTIONAL

PROVISIONS INVOLVED...........................

INTRODUCTION AND STATEMENT OF

THE CASE....................................................

ONE LAW BUT SEPARATE INDUSTRIES

AND OUTCOMES..................................

RAMPANT AGENCYMISCONDUCT UNDER

ARTICLE III.........................................

Vlll

Table of Contents

Page

AVIATION SAFETY AND REPORTING

SINCE 1996.............................................

REASONS FOR GRANTING THE PETITION....... 24

The sua sponte dismissal deprives,

withholds or otherwise annuls judicial

review and enforcement of Whistleblower

Law and orders for reinstatement as

Congress mandates...................................

.26

II. The sua sponte dismissal deprives orwithholds

Congress provision for judicial review of

agency conduct as incorporated in Chapter 7

of Title 5 indicted in AIR21.......................

,28

III. The sua sponte dismissal deprives or

withholds any opportunity to test or

question Congress’ intent to implicate

persons or air carriers violating Pilot

Records Improvement Act of 1996 disclosure

restrictions and “routine use” provisions are

subject to civil liability in district courts ..

IV. The sua sponte dismissal implicates the

district court in gross mis-application

of law found in Fed. R. Civ. Proc.

Rule 12(B) and 12(h)......... ............ ..........

Table of Contents

Page

The sua sponte dismissal deprives any

opportunity for ripe challenges to Chevron

and statutory stare decisis where agencies

dispute Congress intent in Whistleblower

Protection Law and violated the

Appointments Clause allowing misconduct

and adjudications to oppose Congress

reading of the law....................................

VI. The sua sponte dismissal deprives

opportunity for ripe challenge whether

Congress intended whistleblower protection

law to permit setoffs in backpay awards

in clear absence of punitive damages as a

remedy....................................................

,46

CONCLUSION

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

DECEMBER 29,2023................................. .

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF TEXAS, AMARILLO

DIVISION/FILED JUNE 21,2023 ..............

APPENDIX C

ORDER DENYING

RECONSIDERATION OF THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

TEXAS, AMARILLO DIVISION, FILED

JUNE 26,2023 ...............................................

10a

APPENDIX D

ORDER OF THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

TEXAS, AMARILLO DIVISION, FILED

JULY 19,2023.................................................

13a

APPENDIX E

ORDER OF THE

ADMINISTRATIVE LAW JUDGE, FILED

AUGUST 1,2023.............................................

19a

■ XI

Table ofAppendices

Page

APPENDIX F

ORDER DENYING

REHEARING EN BANC OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

JANUARY 29,2024 ........................................

33a

APPENDIX G

PLAINTIFF’S

EMERGENCY MOTION OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS,

FILED JUNE 18,2023....................... ..........

35a

APPENDIX H

DECLARATION

OF ROBERT KREB IN SUPPORT OF

PLAINTIFF’S EMERGENCY MOTION FOR

A TEMORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION,

FILED JUNE 18,2023.................. ...............

,43a

APPENDIX J — PLAINTIFF’S MOTION FOR

RECONSIDERATION OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS,

DATED JUNE 21,2023..................................

62a

APPENDIX I

ORDER PROPOSED

GRANTING TEMPORARY RESTRAINING

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS, FILED JUNE 18,2023 .............

58a

Table ofAppendices

Page

APPENDIX K — BRIEF OF THE UNITED

STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

SEPTEMBER 27,2023 ..................................

70a

APPENDIX L — PLAINTIFF’S JOINT

MOTION FOR RELIEF OF THE THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

TEXAS, DATED JULY 9,2023...................... 107a

APPENDIX M — APPELLANT’S REPLY

BRIEF TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH

CIRCUIT, DATED NOVEMBER 17,2023....... 124a

APPENDIX N

PETITION FOR

REHEARING EN BANC BY ROBERT KREB,

PRO SE, FILED JANUARY 11,2024............. 139a

APPENDIX O — ACTING SECRETARY

OF LABOR’S BRIEF AS AMICUS

CURIAE IN SUPPORT OF PLAINTIFFSAPPELLANTS AND REVERSAL OF

THE DISTRICT COURT’S DECISION,

FILED AUGUST 16,2023............................... 158a

Xlll

TABLE OF CITED AUTHORITIES

Page

CASES

Anokwuru v. City of Houston, et al.,

No. 20-20295 (5th Cir. March 16,2021)

Beaven v. DOJ,

No. 03-84,

2007 WL 1032301 (E.D. Ky. Mar. 30,2007)

Blazy v. Tenet,

979 F. Supp. 10 (D.D.C. 1997)

California Diversified Promotions, Inc. v.

Musick,

505 F.2d 278 (9th Cir.1974)..................

.34

Cummings v. Navy,

279 F.3d 1051 (D.C. Cir. 2002)

Dickson v. OPM,

828 F.2d 32 D.C. Cir. 1987)

Doe v. Herman,

No. 97-0043,

1998 WL 34194937 (W.D. Va. Mar. 18,1998)

Doe v. Veneman,

230 D.Supp. 2d 739 (W.D. Tex. 2002)

Durham v. Florida East Coast Railway Co.,

385 F.2d 366 (5th Cir.1967)......................

XIV

Cited Authorities

Page

Erickson v. Pardus,

551 U.S. 89 (2007)

.34

FAA v. Cooper,

566 U.S. 284,132 S. Ct. 1441 (2012)

.40

Feres v. United States,

340 U.S. 135 (1950).

Graham v. Hawk,

857 F. Supp.38 (W.D. Tenn. 1994)

Grayson v. Mayview State Hosp.,

293 F.3d 103 (3d Cir. 2002) ...

Greenlaw v. United States,

554 U.S. 237 (2008).......

Gulden, et al. v. Exxon Mobil Corp.,

OALJ Case No(s). 2023-SQX-00021/22 .. .17,18,27,28

Haase v. Sessions,

893 F.2d 370 (D.C. Cir. 1990)

Henderson v. Shinseki,

131 S. Ct. 1197 (2011)

Hubbard v. EPA,

809 F2.d 1 (D.C. Cir. 1986)

Cited Authorities

Page

Jefferson Fourteenth Associates v.

Wometco De P.R. Inc.,

695 F.2d 524 (11th Cir. 1983)...

Lewis v. State of New York,

547 F.2d 4 (2d Cir. 1976)

Literature, Inc. v. Quinn,

482 F.2d 372 (1st Cir.1973)

Lucia v. Securities and Exchange Commission,

138 S.Ct. 2044,585 U.S. 237 (2018).............. .20,42

Marsh v. Oregon Nat. Res. Council,

52 F.3d 1485 (9th Cir. 1995).......

Marucci Sports, L.L.C. v.

Nat’l Collegiate Athletic Ass’n,

751 F.3d 368 (5th Cir. 2014)

Mayeaux v. La. Health Serv. And Indent. Co.,

376 F.3d 420 (5th Cir. 2004)......................

McNeil v. Wisconsin,

501 U.S. 171 (1991)

Nagel v. HEW,

725 F.2d 1438 (D.C. Cir. 1984)

.30

XVI

Cited Authorities

Page

Nelson v. Tradewind Aviation, LLC,

Appellate Court of Connecticut

Nos. 34624,34838........................

O’Donnell v. United States,

891 F.2d 1079 (3d Cir. 1989)

Phillips v. County of Allegheny,

515 F.3d 224 (3d Cir. 2008) ..

.34

Phillips v. Widnall,

No. 96-2099,

1997 WL 176394 (10th Cir. Apr. 14,1997)

Recticel Foam Corp. v. DOJ,

No. 98-2523, slip op. (D.D.C. Jan 31,2002)

Stewart v. Doral Fin. Corp.,

997 F. Supp. 2d 129 (D.P.R. 2014)

Tides, et al. v. The Boeing Co.,

644 F.3d 809 (9th Cir. 2011)

STATUTES

Privacy Act of 1974, Pub. L. No. 93-579,88 Stat. 1896

(5 U.S.C. § 552a)

5 U.S.C. § 552a(a)(7)

XVII

Cited Authorities

5 U.S.C. § 552a(g)(l)

Page

12, 29

5 U.S.C. § 552a(g)(l)(A)

5 U.S.C. § 552a(g)(l)(B)

12,29

5 U.S.C. § 552a(g)(l)(C)

5 U.S.C. § 552a(g)(l)(D)

13,29

5 U.S.C. § 552a(g)(4)

5 U.S.C. § 552a(g)(4)(A)

5 U.S.C. § 552a(g)(4)(B)

5 U.S.C. § 552a(g)(5)

5 U.S.C. § 701(a)

5 U.S.C. § 702

,4,28

5 U.S.C. § 703

5,28

5 U.S.C. § 704

.5,28

5 U.S.C. § 705

6,29

5 U.S.C. § 706

6,29

XVlll

Cited Authorities

Page

SUBCHAPTER III—Whistleblower Protection

Program (49 U.S.C. § 42121. Protection of employees

providing air safety information)

49 U.S.C. § 42121(b)(1)

49 U.S.C. § 42121(b)(2)(A)

49 U.S.C. § 42121(b)(3)(B)(ii)

49 U.S.C. § 42121(b)(4)(A)

,28

49 U.S.C. § 42121(b)(6)(A)

49 U.S.C. § 42121(c)

Pilot Records Improvement Act of 1996 (“PRIA”), Pub. L.

104-264, title V, § 502(a), Oct. 9,1996

(49 U.S.C. 44703(h)&(j))

49 U.S.C. § 44703(C)

49 U.S.C. § 44703(D)

49 U.S.C. § 44703(h)

10,40

49 U.S.C. § 44703(h)(2)

10,29

49 U.S.C. § 44703(h)(2)(A)

10,29

Art/) /V*

tAj 1/tAy

Cited Authorities

Page

49 U.S.C. § 44703(h)(2)(B)

49 U.S.C. § 44703(h)(5)

49 U.S.C. § 44703(h)(6)

49 U.S.C. § 44703(h)(6)(A)

49 U.S.C. § 44703(h)(6)(B),

49 U.S.C. § 44703(h)(9)

11,29,41

49 U.S.C. § 44703(h)(10)

11,41

49 U.S.C. § 44703(h)(ll)

11,20

49 U.S.C. § 44703(j)

49 U.S.C. § 44703(j)(l)

49 U.S.C. § 44703(j)(l)(A)

49 U.S.C. § 44703(j)(l)(B)

,8,33

49 U.S.C. § 44703(j)(l)(C)

.8,33

49 U.S.C. § 44703(j)(l)(D)

8,33

49 U.S.C. § 44703(j)(2)

/v»/v»

tAJtAj

Cited Authorities

Page

49 U.S.C. § 44703(j)(3)(A)

9,41

49 U.S.C. § 44703(j)(3)(B)

9,41

49 U.S.C. § 44703(j)(4)

49 U.S.C. § 44703(j)(4)(A)

49 U.S.C. § 44703(j)(4)(B)

REGULATIONS

14 C.F.R. § 135.267

29 C.F.R. § 1979.104(e)

.20,45

RULES

F.R.C.P. Rule 12(b)(1)

14,25

F.R.C.P. Rule 12(b)(2)

14,25

F.R.C.P. Rule 12(b)(6)

.25,35

F.R.C.P. Rule 12(h)(3)

14,25,33

rv*rv*r)

iajiAj 0

Cited Authorities

Page

F.R.C.P. Rule 15(a)

MISCELLANEOUS

John J. Nance et al., The Pilot Records Improvement

Act of1996 (PRIA): Unintended Consequences,

66 J. AIR L. & COM. 1225 (2001)..................

36 Quinnipiac L. Rev. 25 (2017-2018) Justice in Full

Is Time Well Spent: Why the Supreme Court

Should Ban Sua sponte Dismissals..............

PETITION FOR A WRIT OF CERTIORARI

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

certiorari to review United States Fifth Circuit Court of

Appeals AFFIRMING the United States District Court’s

sua sponte dismissal of his case and DENYING Panel

Rehearing en banc.

OPINIONS BELOW

The Fifth Circuit’s Per Curiam Unpublished Decision

as Case No. 23-10758 (5th Cir. December 29, 2023) and

reproduced at App. la. The Fifth Circuit’s denial of

appellant’s petition for rehearing en banc is reproduced as

App. 33a. The sua sponte Order of the U.S. District Court

of Northern Texas Denying TRO and Dismissing Case

2:23-CV-00088-Z is reproduced at App. 4a. The Order of

the U.S. District Court of Northern Texas Denying Relief

From Judgment and Leave of Court to file an Amended

Complaint in Case 2:23-CV-00088-Z is reproduced at App.

13a. The Order of the U.S. District Court of Northern

Texas Denying Motion for Reconsideration of Order

Denying TRO and Dismissing Case 2:23-CV-00088-Z is

reproduced at App. 10a.

JURISDICTION

The Court of Appeals issued an unpublished

memorandum on December 29,2023, App 53 Affirming the

District Court sua sponte Dismissal for Subject Matter

Jurisdiction. The Court then denied timely Petition for

Rehearing en banc on January 29, 2024. App 76. This

Court has jurisdiction under 12 U.S.C. § 1254.

REGULATIONS AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves questions of interpretation of

Statutory Application of law under:

49 U.S.C. § 42121(b)(6)—Enforcement of Order by

Parties.—

(A)

Commencement of action.—

A person on whose behalf an order was issued

under paragraph (3) may commence a civil action

against the person whom such order was issued to

require compliance with such order. The appropriate

United States district court shall have jurisdiction,

without regard to the amount in controversy or the

citizenship of the parties to enforce such order.

49 U.S.C. § 42121(b)(3) Final Order.—

(B) Remedy.—If, in response to a complaint

filed under paragraph (1), the Secretary of Labor

determines that a violation of subsection (a) has

occurred, the Secretary of Labor shall order the

person who committed such violation to—

(ii) reinstate the complainant to his or her former

position together with the compensation (including

back pay) and restore the terms, conditions, and

privileges associated with his or her employment;

and

(iii) provide compensatory damages to the

complainant.

49 U.S.C. § 42121(b)(1) Filing and Notification.—

A person who believes that he or she has been

discharged or otherwise discriminated against by any

person in violation of subsection (a) may, not later than

90 days after the date on which such violation occurs,

file (or have any person file on his or her behalf) a

complaint with the Secretary of Labor alleging such

discharge or discrimination. Upon receipt of such

a complaint, the Secretary of Labor shall notify, in

writing, the person named in the complaint and the

Administrator of the Federal Aviation Administration

of the filing of the complaint, of the allegations

contained in the complaint, of the substance of evidence

supporting the complaint, and of the opportunities that

will be afforded to such person under paragraph (2).

49 U.S.C. § 42121(b)(2) Investigation; Preliminary

Order.—

(A)

In general.—

Not later than 60 days after the date of receipt of

a complaint filed under paragraph (1) and after

affording the person named in the complaint

an opportunity to submit to the Secretary of

Labor a written response to the complaint and an

opportunity to meet with a representative of the

Secretary to present statements from witnesses, the

Secretary of Labor shall conduct an investigation

and determine whether there is reasonable cause

to believe that the complaint has merit and notify,

in writing, the complainant and the person alleged

to have committed a violation of subsection (a) of

the Secretary’s findings. If the Secretary of Labor

concludes that there is a reasonable cause to believe

that a violation of subsection (a) has occurred,

the Secretary shall accompany the Secretary’s

findings with a preliminary order providing the

relief prescribed by paragraph (3)(B). Not later

than 30 days after the date of notification of findings

under this paragraph, either the person alleged to

have committed the violation or the complainant

may file objections to the findings or preliminary

order, or both, and request a hearing on the record.

The filing of such objections shall not operate to

stay any reinstatement remedy contained in the

preliminary order. Such hearings shall be conducted

expeditiously. If a. hearing is not requested in such

30-day period, the preliminary order shall be deemed

a final order that is not subject to judicial review.

5 U.S. Code § 701—Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) Statutes preclude judicial review; or

(2) Agency action is committed to agency discretion

by law.

5 U.S. Code § 702—Right of Review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a court

of the United States seeking relief other than money

damages and stating a claim that an agency or an

officer or employee thereof acted or failed to act in an

official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the

ground that it is against the United States or that the

United States is an indispensible party. The United

States may be named as a defendant in any such action,

and a judgment or decree may be entered against

the United States: Provided, That any mandatory or

injunctive decree shall specify the Federal officer or

officers (by name or by title), and their successors in

office, personally responsible for compliance. Nothing

herein (1) affects other limitations on judicial review or

the power or duty of the court to dismiss any action or

deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if any

other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

5 U.S. Code § 703—Form and Venue of Proceeding

The form of proceeding for judicial review is the

special statutory review proceeding relevant to the

subject matter in a court specified by statute or, in

the absence of inadequacy thereof, any applicable

form of legal action, . . . Except to the extent that

prior adequate, and exclusive opportunity for judicial

review is provided by law, agency action is subject to

judicial review in civil or criminal proceedings for

judicial enforcement.

5 U.S. Code § 704—Actions Reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review. A

preliminary, procedural, or intermediate agency

action or ruling not directly reviewable is subject to

review on the review of the agency final action. Except

as otherwise expressly required by statute, agency

action otherwise final is final for the purposes of this

section whether or not there has been presented or

determined an application for a declaratory order,

for any form of reconsideration, or, unless the agency

otherwise requires by rule and provides that the action

meanwhile is inoperative, for an appeal to superior

agency authority.

5 U.S. Code § 705—Relief Pending Review

When an agency finds that justice so requires, it

may postpone the effective date of action taken by it,

pending judicial review. On such conditions as may

be required and to the extent necessary to prevent

irreparable injury, the reviewing court, including the

court to which a case may be taken on appeal from or on

application for certiorari or other writ to a reviewing

court, may issue all necessary and appropriate process

to postpone the effective date of an agency action or

to preserve the status or rights pending conclusion of

the review proceedings.

5 U.S. Code § 706—Scope of Review

To the extent necessary to decision and when

presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability

of the terms of an agency action. The reviewing court

shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(G) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court

shall review the whole record or those, parts of it

cited by a party, and due account shall be taken of

the rule of prejudicial error.

49 U.S.C. § 44703(j) Limitations on Liability;

Preemption of State Law.—

(1) Limitation on Liability.—No action or proceeding

may be brought by or on behalf of an individual who

has applied for or is seeking a position with an air

carrier as a pilot and who has signed a release from

liability, as provided for under subsection (h)(2) or (i)

(3), against—

(A) the air carrier requesting the records of that

individual under subsection (h)(1) or accessing the

records of that individual under subsection (i)(l);

(B) a person who has complied with such request;

in the individual’s records; or

(D) An agent or employee of a person described in

subparagraph (A) or (B);

in the nature of an action for defamation, invasion of

privacy, negligence, interference with contract, or

otherwise, or under any Federal or State law with

respect to the furnishing or use of such records in

accordance with subsection (h) or (i).

(2) Preemption.—No State or political subdivision

thereof may enact, prescribe, issue, continue in

effect, or enforce any law (including any regulation,

standard, or other provision having the force and effect

of law) that prohibits, penalizes, or imposes liability

for furnishing or using records in accordance with

subsection (h) or (i).

(3) Provision of Knowingly False Information.—

Paragraphs (1) and (2) shall not apply with respect

to a person who furnishes information in response

to a request made under subsection (h)(1) or who

furnished information to the database established

under subsection (i)(2), that—

(A) The person knows is false; and

(B) was maintained in violation of a criminal statute

of the United States.

(4) Prohibition on Actions and Proceedings

Against Air Carriers.—

(A) Hiring decisions.—

An air carrier may refuse to hire an individual

as a pilot if the individual did not provide written

consent for the air carrier to receive records

under subsection (h)(2)(A) or (i)(3)(A) or did not

execute the release from liability requested under

subsection (h)(2)(B) or (i)(3)(B).

(B) Actions and proceedings.—

No action or proceeding may be brought against

an air carrier by or on behalf of an individual who

has applied for or is seeking a position as a pilot

with the air carrier if the air carrier refused to hire

the individual after the individual did not provide

written consent for the air carrier to receive

records under subsection (h)(2)(A) or (i)(3)(A) or

did not execute a release from liability requested

under subsection (h)(2)(B) or (i)(3)(B).

49 U.S.C. § 44703(h) Records of Employment of Pilot

Applicants.—

(2) Written Consent; Release From Liability.—

An air carrier making a request for records under

paragraph (1)—

(A) Shall be required to obtain written consent to

the release of those records from the individual that

is the subject of the records requested; and

(B) May, notwithstanding any other provision of law

or agreement to the contrary, require the individual

who is the subject of the records to request to execute

a release from liability for any claim arising from

the furnishing of such records to or the use of such

records by such air carrier (other than a claim arising

from furnishing information known to be false and

maintained in violation of a criminal statute).

(5) Receipt of Consent; Provision of

Information.—A person shall not furnish a record

in response to a request made under paragraph (1)

without first obtaining a copy of the written consent

of the individual who is the subject of the records

requested; except that, for purposes of paragraph (15),

the Administrator may allow an individual designated

by the Administrator to accept and maintain written

consent on behalf of the Administrator for records

requested under paragraph (1)(A). A person who

receives a request for records under this subsection

shall furnish a copy of all such requested records

maintained by the person not later than 30 days after

receiving the request.

(6) Right to Receive Notice and Copy of Any

Record Furnished.—A person who receives a request

for records under paragraph (1) shall provide to the

individual who is the subject of the records:—

(A) on or before the 20th day following the date of

receipt of the request, written notice of the request

and of the individual’s right to receive a copy of such

records; and

(B) in accordance with paragraph (10), a copy of

such records, if requested by the individual.

(9) Right to Correct Inaccuracies.—An air carrier

that maintains or requests and receives the records

of an individual under paragraph (1) shall provide

the individual with a reasonable opportunity to

submit written comments to correct any inaccuracies

contained in the records before making a final hiring

decision with respect to the individual.

(10) Right of Pilot to Review Certain Records.—

Notwithstanding any other provision of law or

agreement, an air carrier shall, upon written request

from a pilot who is or has been employed by such

carrier, make available, within a reasonable time, but

not later than 30 days after the date of the request, to

the pilot for review, any and all employment records

referred to in paragraph (l)(B)(i) or (ii) pertaining to

the employment of the pilot.

(11) Privacy Protections.—An air carrier that

receives the records of an individual under paragraph

(1) may use records only to assess the qualifications of

the individual in deciding whether or not to hire the

individual as a pilot. The air carrier shall take such

actions as may be necessary to protect the privacy

of the pilot and the confidentiality of the records,

including ensuring that information contained in the

records is not divulged to any individual that is not

directly involved in the hiring decision.

5 U.S.C. § 552a—Records maintained on individuals

(a) Definitions.—For the purposes of this section—

(7) The term “routine use” means, with respect

to the disclosure of such record for a purpose which

is compatible with the purpose for which it was

collected;

5 U.S.C. § 552a(g)(l) Civil Remedies.—Whenever any

agency

(A) Makes a determination under subsection (d)(3)

of this section not to amend an individual’s record in

accordance with his request, or fails to make such

review in conformity with that subsection;

(B) Refuses to comply with an individual request

under subsection (d)(1) of this section;

individual with such accuracy, relevance, timeliness,

and completeness as is necessary to assure fairness

in any determination relating to the qualifications,

character, rights, or opportunities of, or benefits to

the individual that may be made on the basis of such

record, and consequently a determination is made

which is adverse to the individual; or

(D) Fails to comply with any other provision of this

section, or any rule promulgated thereunder, in such

a way as to have an adverse effect on an individual,

the individual may bring a civil action against the

agency, and the district courts of the United States

shall have jurisdiction in the matters under the

provisions of this subsection.

(4) In any suit brought under the provisions of

subsection (g)(1)(C) or (D) of this section in which the

court determines that the agency acted in a manner

which was intentional or willful, the United States

shall be liable to the individual in an amount equal to

the sum of—

(A) Actual damages sustained by the individual as

a result of the refusal or failure, but in no case shall

a person entitled to recovery receive less than the

sum of $1,000; and

(B) The costs of the action together with reasonable

attorney fees as determined by the court.

(5) An action to enforce any liability created under

this section may be brought in the district court of the

United States in the district which the complainant

resides, or has his principal place of business, or

in which the agency records are situated, or in the

District of Columbia, without regard to the amount

in controversy, within two years from the date on

which the cause of action arises, except that where an

agency has materially and willfully misrepresented

any information required under this section to be

disclosed to an individual and the information so

misrepresented is material to establishment of the

liability of the agency to the individual under this

section, the action may be brought at any time within

two years after discovery by the individual of the

misrepresentation. Nothing in this section shall be

construed to authorize any civil action by reason of

any injury sustained as the result of a disclosure of a

record prior to September 27,1975.

This case also involves questions of how appropriate

findings and conclusions of law were drawn from:

Federal Rules of Civil Procedure Rule 12(b)

(b) How to Present Defenses. Every defense to a

claim for relief in any proceeding must be asserted in

the responsive pleading if one is required. But a party

may assert the following defenses by motion:

(1) lack of subject matter jurisdiction;

(2) lack of personal jurisdiction;

Federal Rules of Civil Procedure Rule 12(h)

(h) Waiving and Preserving Certain Defenses

(3) Lack of Subject-Matter Jurisdiction. Of the

court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the

action.

INTRODUCTION AND

STATEMENT OF THE CASE

A Judicial Fiat appears to contend directly with law

established by this Court and Congress that would set

stare decisis other courts will be compelled to deliberate

without proper redress the law is and operates exactly as

congress intended and contention of courts in this regard

rises to a judicial activism now burdening this Court.

This contentious judicial activism has trampled

upon due process afforded Petitioner by violating rules

of civil procedure so fundamental and unmistakable in

their construct to inhibit such unconscionable’actions by

courts. Yet, the courts were unyielding and unrelenting

in their contention to distort jurisprudence to embody

that contention against established law that persisted

through exhaustive and appreciably crafted motions

of every meaningful procedural rule provided before

finding an appellate unwilling to appreciate Petitioner,

his pleadings or the various relevant causes of action

and questions posed in his original complaint. Petitioner

seeks this Court’s mindful consideration of district

and appellate conduct sufficiently detrimental to public

interests to warrant reversal and remand of the judicial

review of underlying overreach of agency application of

law and misconduct so egregious it is of the type and

fear Congress contemplated could require the judicial

review exclusively provided under agency statute and the

Administrative Procedures Act and is well overdue for the

Department of Labor as is evidenced herein not for the

purpose of litigating before this Court but to support the

original complaint dismissal reversal and remand so the

appropriately provided judicial review may be perfected

as Congress intended by the courts.

ONE LAW BUT SEPARATE INDUSTRIES AND

OUTCOMES

Sarbanes-Oxley (“SOX”) Financial and air carrier

safety whistleblower protection programs (“AIR21”) rely

on one set of Congressional statute for review of retaliation

complaints. However, financial agency whistleblowers

stand astronomical and unconscionably higher chances

of prevailing on retaliation complaints for blowing the

whistle on financial improprieties of employers than

aviation safety reporting as SOX law enjoys “kick-out”

provisions if the Department of Labor Occupational Safety

and Health Administration Whistleblower Protection

Program (“DOL/OSHA/WPP”) does not timely issue any

merit determination of a SOX retaliation complaints, the

case may be removed to U.S. District Court for Article

III adjudication of the statute. AIR21 complainants are

wholly subject to the DOL under Article II review of

complaints. The DOL is implicitly compelled to “fasttrack” SOX complaints from political pressure and obtains

more frequent favorable merit determinations than the

rare case an AIR21 case is issued a merit determination

and award to air safety whistleblowers Stewart v. Doral

Fin. Corp., 997 F. Supp. 2d 129 (D.P.R. 2014).

This disparity is clearly contrasted by DOL’s

treatment of aviation safety whistleblower Boeing

Engineer John Barnett and Boeing Auditors (“Audit IT

SOX”) Nicholas P. Tides and Matthew C. Neumann whom

were able to remove their cases for Article III judicial

review of Boeing’s whistleblower retaliation Tides, et al.,

v The Boeing Co., 644 F.3d 809 (9th Cir. 2011). Mr. Barnett

was restricted to Article II administrative agency review

that found no merit and dismissed Mr. Barnett’s complaint

just as hundreds of AIR21 complaints brought since

AIR21 was enacted less than twenty complaints have ever

received any merit determination by DOL investigators.

Similarly, Exxon Mobil Corporation retaliated against

two scientists who reported Exxon financial disclosures

violated SOX. The DOL enjoined the two separate

complaints and quickly issued merit determinations in

their whistleblower complaints and issued immediate

reinstatement orders of the scientists Lindsey Gulden

and Damian Birch v. Exxon Mobil Corp., US Department

of Labor, Administrative Law Judge Case Nos. 2023-SOX00021 and 2023-SOX-00022. Exxon refused to comply with

agency orders to reinstate the complainants and objected

to Secretary Findings to be heard under de novo review

by DOL AL J. Complainant’s motioned the ALJ to enforce

the orders for reinstatement but the motion was denied

under clear interpretation of the statute enforcement

and judicial review was exclusive statutory jurisdiction

of US District Court. Complainants promptly sought that

enforcement in US District Court which dismissed their

complaint for want of subject matter jurisdiction under

the Administrative Procedures Act (“APA”) interpreting

judicial review was improper prior to an agency decision

becoming “final.” Complainants sought appellate review in

Third District Court of Appeals where the DOL Solicitor

joined in amicus curiae offer the agency interpretation

for US District Court jurisdiction of judicial review

exclusively provided under the statute in briefs and oral

argument held March 5, 2024 and the matter remains

pending.

Petitioner also received a very rare merit determination

in his AIR21 complaint and orders for immediate

reinstatement that by law cannot be stayed for any reason.

Respondent also refused to offer an unconditional offer

of reinstatement of Petitioner to his former position

with pay, seniority, benefits and responsibilities he held

before the adverse employment action(s). Petitioner

brought his complaint and sought statutory judicial

review for the agency order and district court relief and

remedy for respondent willful noncompliance and stay

of agency proceedings, preserving the status quo and

barring further agency action to cause further potential

irreparable harm to Petitioner and as described herein,

supporting the petition for this Court to reverse the

equitable harm of the courts as the Third District Court

of Appeals is presently contemplating while the Fifth

District Court of Appeals withheld any similar regard of

Petitioner’s exhaustive appellate petitions.

Gulden, et al and Petitioner are the first known rare

instance of merit determination and orders for immediate

reinstatement have been defiantly and unlawfully rejected

by respondents. Congress clearly intended Article III

due process be secured by courts for such potential

and exceptional intervention and support Article II

agency rightfully deficient powers for enforcement and

where necessary including injunctive remedy. Relenting

Article III Courts are severe impediments to prompt and

equitable justice Congress tenders agencies for required

enforcement powers agency orders.

RAMPANT AGENCY MISCONDUCT UNDER

ARTICLE III

Agency misconduct is prolific in both Petitioner’s 2014

and 2021 complaints. A former Regional Administrator

assigned to investigate Petitioner’s 2014 complaint was

removed for refusing to revise her recommendations

for merit determination, awarded monetary damages

and reinstatement. The Investigator was replaced by

another staff member that immediately issued a “Closing

Conference Letter” indicating intention to issue a non

merit determination and dismiss the AIR21 complaint

and without following agency rules or correcting defects

his replacement of the former investigator created by

ignoring substantial evidence amassed in the former

investigator’s merit recommendations.

The DOL repeatedly excused respondent’s violations

of the Privacy Act by releasing Pilot Records Improvement

Act confidential pilot records to the DOL which then

admitted unlawfully disseminating those privacy

protected confidential pilot records among the DOL

investigation team in Petitioner’s 2021AIR21 complaint.

This investigation team was repeatedly noticed by the

primary investigator to include DOL Solicitor(s) and

clearly violates Agency Procedural Rules for handling

AIR21 complaints. The respondents violated the Pilot

Records Improvement Act of 1996 (“PRI A”) in an attempt

to slander and defame petitioner with both their defenses

of the retaliation to OSH A Investigators and also harm

Petitioner financially and by reputation in blacklisting him

and using allegations of improprieties in his PRI A records

to that end. That defamation and slander in defense of the

AIR21 complaint compelled OSHA investigators repeated

assertions the PRI A violations were warranted and issued

a “Closing Conference Letter” in June 2022 advised their

intent to dismiss the complaint.

Petitioner issued strong written protest of Closing

Conference Letter analysis and lack of acknowledgement

the substantial evidence provided by Petitioner. Thereafter,

respondent submitted conclusive admission to possessing

knowledge of Petitioner’s 2014 AIR21 case and using that

knowledge and information to retaliate against Petitioner

in 2021 and in violation of AIR21. Respondent’s admissions

were cited in investigator’s merit determination, award

for damages and orders for reinstatement. Petitioner’s

admissions as outlined herein demonstrate Petitioner’s

2021 case is now indelibly intertwined with his 2014

complaint’s dismissal in 2018 where the findings and

interpretation of the statute between the complaints

arise from the exact same regulatory violation reported

in 14 CFR 135.267 Flight Time Limitations and Rest

Period Requirements for air carrier flight crew. The

decisions and orders between the two separate cases

induce a confounding paradox induced from misconduct

and violations of Article III due process requirement that

are ripe for and statutory mandate judicial review of the

courts.

“Interference” by the courts as Congress intended

would prevent Respondent Objection to the Secretary

findings being improperly assigned the same AL J whose

2017 presiding over hearing of Petitioner’s objections to

the dismissal of his 2014 complaint, conducted the hearing

and issued decision and orders maligning the statute and

also violated the appointments clause according to this

Court’s Lucia decision and APA/AL J rules.

Petitioner promptly submitted written protest of

the ALJ assignment to the Chief Administrative Law

Judge, Office of Inspector General and upon motion for

disqualification before the assigned ALJ which brazenly

stated in denying Petitioner’s motion the agency efforts to

preempt this Court June 2018 Lucia decision, the agency

did not appropriately correct the appointments clause

violations before the ALJ presided over Petitioner’s July

2017 AIR21 hearing and in August 2018, issued a decision

and order dismissing Petitioner’s 2014 complaint.

The Chief ALJ implicitly acknowledged agency

misconduct in ceasing further assignment of the ALJ

to cases brought in other districts the law required

rotation of assignments to judges of those districts and

not exclusively assigning over 120 cases and only AIR21

cases in less than 10 years to only one ALJ in the Cherry

Hill, NJ ALJ district and irrespective of what ALJ district

AIR21 complaints were brought. There is strong evidence

this ALJ personally retaliated against Petitioner in his

2021 AIR21 complaint and violated Petitioner’s Article

II administrative rights and rules for handling AIR21

complaints as well as substantially depriving Petitioner

Article III due process rights to include extreme,

improper and inappropriate dismissal of his 2021 AIR21

complaint and vacating the monetary awards and orders

for reinstatement the ALJ was continually briefed

respondents were in willful and defiantly noncompliant.

The ALJ demonstrated his substantial bias against

Petitioner at the onset of respondent’s objection when

known statements and representations known to be false

and without any substantive evidence to support counsel’s

attempts to cure fatal defects in their objection were

excused by the ALJ which ignored and failed to weigh

all of the substantial regulatory compliance documents

and official public filings and certifications to the Texas

Secretary of State clearly refuted counsel false statements

and misrepresentations to allow the ALJ objection to

continue when it was shown to be unlawful.

AVIATION SAFETY AND REPORTING SINCE 1996

A Pilot reputation for adhering to regulations

and safety protocols holds equitable market value to

them personally and air carrier employers.1 Aviation

Whistleblower Statutes in 49 U.S.C. § 42121 are intended

by Congress that neither pilot reputations or safety

protocols be subject to certain unlawful compromise by

outside or internal interests to introduce greater exposure

to persons and property than aviation operations already

profoundly and fundamentally impose. Although Congress

intent in the language concisely expresses how the law

should be applied, courts would seem intent to persistently

mask their imperfect application of the law behind claims

of ambiguity in the language with deference to agency

interpretation of the law under Chevron and the APA.

Courts seem content declining to rarely if ever “disturb”

or intervene in agency outcomes or ALJ interpretation

of agency process and handling of statutory stare decisis.

This cannot be farther from Congress intent and lacks

appreciation of jeopardy Article II tribunals posed to

constitutional protections Article III affords. Petitioner

posited substantial evidence of misconduct of DOL

Solicitor and ALJ discretion abuses with clear evidence

the ALJ’s engaged in judicial activism before the 9th

Circuit Court of Appeals and this Court which were not

1. John J. Nance et al., The Pilot Records Improvement

Act of 1996: Unintended Consequences, 66 J. AIR L.& COM.

1225 (2001) https://scholar.smu.edU/jalc/vol66/iss3/6 . A broad

perspective of the aviation industry jeopardy to pilots adhering

to regulatory requirements of reporting safety related issues to

air carrier management who now have power to adversely affect

a pilot’s market value under protection of relevant pilot records

disclosure law.

inclined to engage the AIR21 Whistleblower statutes’

thorough judicial review and appellate power provisions

to remand that 2017 Agency action for proper lawful

review. Petitioner was denied certiorari from this Court’s

preceding term on April 17, 2023 and fully exhausted

and made his 2014 AIR21 complaint dismissal “final.”

This was a civil cause of action under federal statute for

judicial review of the agency misconduct which included

appointments clause violations if remedied by judicial

review Lucia required, would reasonably correct many

adverse agency actions against Petitioner by remanding

the statutory judicial review afforded him.

Congress intent in AIR21 law unmistakably targets

aviation safety promotion by protecting frontline air

carrier operations staff making reports of suspected

violations having occurred or potential to occur. The law’s

lack of meaningful historical results impacting, accident

statistics over a decade of enactment Congress seized upon

National Transportation Safety Board Recommendations

in 2009 to develop and deploy Aviation Safety Management

Systems by U.S. Air Carriers and Commercial Operators

where safety reporting and risk analysis for safety and

regulatory compliance of flight operations to mandate

routine employment of safety communication homogeny

to air carriers’ daily flight operations.

Petitioner was fully complying with his joint

employers’s Safety Management System requirements as

originated from the 2009 Congressional mandate as Air

Ambulance Operators were compelled. Unfortunately,

petitioner’s employers found that mandated safety

reporting particularly inconvenient under extraordinary

circumstances and highly abnormal operational challenges

to Petitioner’s overnight duty shift July 9,2014. Petitioner’s

joint employers were attempting to stretch one aircraft

and pilot across three Pacific Northwest States and

five different air ambulance bases that were deprived

of appropriate staffing or an airworthy aircraft when

he received three separate assignments from different

managers of the differing companies that conflicted or

cumulatively performed as assigned would violate 14

CFR 135.267. Petitioner’s required safety reports caused

one manager to overrule the others and in cancelling the

assignments caused strife between the joint employers

that contributed to at least one employer retaliating

against Petitioner and terminating his employment within

hours of completing his overnight Air Ambulance Pilot

Duty period and in violation of law.

REASONS FOR GRANTING THE PETITION

It could not be understated the Fifth Circuit is now

“split” on sua sponte dismissal having affirmed the district

court in this petition and there is no overwhelming support

for any one of the restrictive means sua sponte dismissal

is averred to be appropriate. Legal journal publications

would incline some discomfort for such application of the

law to justify a very limited ability of jurists to remain

neutral while disposing of a matter sua sponte inherently

implicates an adversarial induction of the court into the

litigation. It is inconceivable Petitioner did not successfully

poll a sufficient number of the Fifth Circuit from his en

banc petition for rehearing where sua sponte dismissals

have been routinely reviewed for fairness and appropriate

application of procedure to preserve the integrity of the

district court impartiality. The extensive arguments

required on appeal of the district court sua sponte

dismissal and preserve all of Petitioner’s claims on appeal

according to local rules necessitated Petitioner avoid

redundant statements of obvious defects of the lower court

dismissal. Petitioner raised more than sufficient argument

and conclusions for the Fifth Circuit appeal and petition

for rehearing en banc support reversal of the dismissal or

restore more than majority of Petitioner’s claims despite

the maligning of his claims with bias and unfavorable light

for pro se litigants bringing time sensitive claims, seeking

injunctive relief and judicial review and enforcement

Congress mandates. The dismissal appears hastily drawn

and incorporating denial of a motion for injunctive relief

and mandamus Petitioner filed just two (2) days prior.

49 U.S.C. § 42121(c). The dismissal was wrought with

significant fatal errors conflating Fed. R. Civ. Proc. 12(b)

(1), 12(b)(2), 12(b)(6) and 12(h)(3) to pose arguments that

were not lawfully congruent with citations of “personal

jurisdiction” which can only be raised upon motion or in an

affirmative defenses of parties named to the action. This

erroneous ruling escaped the Fifth Circuit as it related

to Petitioner’s assertions the district court failed to follow

court rules and procedure for sua sponte dismissal which

already subjects scrutiny on integrity of courts’ perception

of impartiality and fairness fully adjudicating complaints

of litigants, particularly, pro se complainants’ pursuit

of good faith claims for appropriate judicial review and

adequate remedy.

This Court should question and establish proper

application of law in judicial review and eliminate judicial

“crutches” to defer administrative deference to application

of law so workers making routine and mandated safety

. reports may now do so without fear of reprisal or that

compromises air safety or security protocols.

The sua sponte dismissal deprives, withholds or

otherwise annuls judicial review and enforcement

of Whistleblower Law and orders for reinstatement

as Congress mandates.

Hundreds of Air Carrier Whistleblower Complaints

have been filed and investigated by OSH A since Congress

enacted AIR21. However, poorly trained investigators

have been far too, unfamiliar, unable or defiant to

comprehend highly regulated aviation industry safety

practices and rules that are ubiquitous compared to

other industries OSHA is responsible to oversee worker

and job site safety. Congress charges Federal Aviation

Administration (“FAA”) with oversight of whistleblower

program efficacy however they do not offer or publish

statistical data on volume and type of whistleblower

reports or outcomes of internal FAA Employee protections

or those of air carriers’ employees. Only a small and

limited number of favorable awards for AIR21complaints

of air carrier employees can be identified through

complainant or respondent objections to OSHA findings

tracked by the DOL OALJ and Administrative Review

Board (“ARB”). OSHA Press Releases are an unreliable

source for this data as the DOL does not appear to follow

their own rules or the law as Petitioner’s favorable findings

by the Secretary and Order for reinstatement were not

published in a DOL Press Release as was required, to

bring attention and notice that WPP AIR21 investigations

yield results and promotes the reporting program to other

air carrier employees and encouraged they make their

own safety reports without fear of adverse employment

action Petitioner suffered.

Of the portion of AIR21 complaints that are accounted

for in the OAL and ARB reporting, a disproportionate

number of all cases result in affirming favorable

findings or reverse unfavorable findings of the Secretary

Investigators, AL J or ARB at its highest known report

from independent audit and analysis of legal professionals,

7% of “all” complaints result in a favorable outcome for

AIR21 air carrier whistleblowers. On the contrary, this

number appears to be representative of data available

only on the number of cases published by the ALJ and

ARB and not the unknown total of complaints of which

outcomes are not known or otherwise disclosed by the

FAA or DOL and OSHA. If considering all complaints

filed by air carrier employees may be disposed without

any determination, this number of favorable outcomes

is significantly reduced and effectively render the WPP

useless and ineffective to a point employers have become

emboldened as Petitioner and in Gulden v. Exxon, the

employers defiantly refuse compliance with orders for

reinstatement in Secretary Findings that cannot be

stayed for any reason as respondents receive significant

and sufficient due process rights from the DOL and ahead

of those findings and orders. In the very low number

of outcomes of whistleblower complaints under AIR21

where employers are ordered to reinstate a complainant,

Petitioner, Gulden and Burch v. Exxon Mobil Corp. are

believed to be the first opportunity to test Congress

intent and question the law requiring judicial review

of the secretary order and judicial enforcement of the

courts where sanction and other remedy are available to

obtain the agency compliance ordered under the statute.

In addition, the ALJ Assigned in Gulden, in Denying the

Complainant Motion to Enforce the Reinstatement order,

instructs “the Agency has no independent executable

enforcement authority” and further asserts “Whether

OSH A’s Order is enforceable is a question properly before

the Article 3 Courts” August 28, 2023, Order Denying

Motion to Enforce Reinstatement, Hon. Patrick M.

Rosenow, District Chief ALJ, Gulden, et al., v. Exxon ■

Mobil Corp., OALJ Case No(s). 2023-SOX-00021 and

2023-SOX-00022.

The sua sponte dismissal of Petitioner’s complaint

not only deprives any opportunity to develop his case

and litigate both the agency ALJ assertion and Congress

intent in the law, but vacates the agency orders without

due process rights of Petitioner as respondent received

by an October 19,2022 due process letter advising of the

pending merit determination and orders to immediately

reinstate the complainant not being stayed by any

objection filed with the OALJ. Reversal and/or Remand

of the district court order for his entire complaint shall

serve to restore Petitioner’s due process rights Congress

affords under the statute and enable judicial review of

other important questions of law pertinent to air carrier

safety and whistleblower laws.

II. The sua sponte dismissal deprives or withholds

Congress provision for judicial review of agency

conduct as incorporated in Chapter 7 of Title 5

indicted in AIR21.

49 U.S.C. § 42121(b)(4)(A) is not ambiguous in its’

outline for judicial review conforming to Chapter 7 of

Title 5 of the United States Code where 5 U.S.C. § 702

outlines Petitioner’s right of review of aggrieving agency

action; § 703 provides Form and Venue for district court

judicial review congress intends in the statute; § 704

prescribes the district court subject matter jurisdiction of

agency action where no other adequate remedy are subject

to judicial review; § 705 provides relief in administrative

proceedings pending judicial review; and finally, § 706 lays

out scope of review to include arbitrary and capricious

conduct in agency actions or by administrative law judges

Marsh v. Oregon Nat. Res. Council, 52 F.3d 1485, 1492

(9th Cir. 1995). While the ARB and Ninth Circuit declined

to acknowledge this challenge and other elements raised

by Petitioner in specific regard to his 2014 AIR21 action,

the courts deferred only to agency discretion in their

findings against Petitioner. The conduct of the agency in

executing that presumed discretion was not contemplated

as reviewable under AIR21. Petitioner asserts in his

complaint following the final determination of the Agency

action by this Court denial of his petition on April 17,2023,

that agency conduct should unquestionably be reviewable

under Chapter 7 as the law clearly frames Congress intent

and conduct of the agency in now both Petitioner’s AIR21

cases warrant a judicial review and enjoining the agency

from further misconduct and irreparable harms.

Substantive abuse and unlawful agency actions such

as willfully disregarding Petitioner’s repeated requests to

comply with Privacy Act Protections asserting the DOL

maintained inaccurate records, unlawfully possessed and

dissemination his Confidential Pilot Records respondent

unlawfully released without Petitioner’s consent and

release of liability according to 49 USC § 44703(h)(2) &

(2)(A), 49 USC § 44703(h)(9) & (11), 5 USC § 552a(g)(l)

(B) & (D). Courts consistently rule the law contains no

prerequisite for exhaustion of Administrative remedies

before pursuing civil actions for damages and the agency

need only refuse individuals’ request to take some

corrective action regarding the privacy act protected

records Graham v. Hawk, 857 F. Supp.38, 40 (WD. Tenn.

1994); Phillips v. Widnall, No. 96-2099,1997 WL176394, at

*2-3 (10th Cir. Apr. 14,1997); Hubbard v. EPA, 809 F.2d 1,

7 (D.C. Cir. 1986); Nagel v. HEW, 725 F.2d 1438,1441 & n.2

(D.C. Cir. 1984). Furthermore, the deference of the district

court for the Administrative Procedures Act is improper.

The APA holds no jurisdiction to enjoin an agency from

disclosing confidential records covered under the Privacy

Act and Congress is presumed to intend district courts

to use inherent equitable powers that are not explicitly

precluded and permits causes of action under 5 USC

552a(g)(l) Doe v. Veneman, 230 D.Supp. 2d 739,752 (W.D.

Tex. 2002); Recticel Foam Corp. v. DOJ, No. 98-2523, slip

op. at 9 (D.D.C. Jan 31,2002), Doe v. Herman, No. 97-0043,

1998 WL 34194937, at *4-7 (W.D. Va. Mar. 18,1998); Haase

v. Sessions, 893 F.2d 370,347 n.6 (D.C. Cir. 1990).

The district court’s sua sponte dismissal conflated

with personal jurisdiction analysis is devoid of thoughtful

consideration of other opinions’ reasoning to support

Petitioner pursuing remedy under federal torts for

privacy violations derived from willful and intentional

record disclosures unlawful under the Privacy Act permits

injunctive relief and monetary remedy Congress exlicitly

bars in only those lawsuits brought by military personnel

against military departments ODonnell v. United States,

891 F.2d 1079,1084-85 (3d Cir. 1989); Beaven v. DOJ, No.

03-84,2007 WL 1032301, at *21-25 (E.D. Ky. Mar. 30,2007);

Feres v. United States, 340 U.S. 135,146 (1950); Cummings

v. Navy, 279 F.3d 1051,1053-58 (D.C. Cir. 2002)

Finally, courts have held damages are proper against

any agency maintaining confidential records protected

under the act violates standards of fairness regardless

of the agency disposition to any adverse determination

when the inaccurate confidential record is sourced for

' adverse determinations and a civil action remedy operate

independently of agency imposition for record keeping

in subsection (e)(5) Dickson v. OPM, 828 F.2d 32, 36-40

D.C. Cir. 1987); Blazy v. Tenet, 979 F. Supp. 10,19 (D.D.C.

1997). This Court has posited in Cooper, 132 S. Ct. 1441

(2012) the context of the Privacy Act as intended to protect

defamation and privacy torts and implicates this Court

would agree, reversing the sua sponte dismissal and

remanding for full adjudication of the facts of the case is in

the best interests of the public. Such action would uphold

Congress intent that such egregious actions of willful

and intentional violation of Petitioner’s privacy rights

in disclosure, maintenance and further dissemination

of information and records containing confidential pilot

information required by PRIA greatly undermines the

integrity of PRIA and civil remedies in monetary and

injunctive relief are the best deterrent for past, present

and future violations of the act.

III. The sua sponte dismissal deprives or withholds

any opportunity to test or question Congress’

intent to implicate persons or air carriers violating

Pilot Records Improvement Act of 1996 disclosure

restrictions and “routine use” provisions are

subject to civil liability in district courts.

As asserted further herein under challenges to

Chevron and statutory stare decisis in section (V.),

Congress does not explicitly bar civil damages and

other remedy against individual persons whom are

alleged to have violated the law. It is not unreasonable

that Congress identified the serious nature of keeping

confidential and private personal information air carriers

are required to process and store, in sufficient safe

keeping and not disseminated or only released for good '

reason under “routine use” and only then with the consent

and authorization of the pilot to whom the records are

related. Congress language tactfully inclines “persons”

as defined in the law are liable for abuse, mishandling or

unlawful release of those confidential records if doing so,

not in accordance with the law or without the expressed

consent of the Pilot those records are regarding to be

released and circumvents his right to receive copies of

all the records being released even without his consent.

It is only logical and acceptable to test in a review of

the court regarding the conduct of the persons and air

carriers involved for willful and intentional violation of

the law under laws of torts such as slander, defamation

or interference with a business expectancy such as other

clients respondents and their employees were aware and

had authorized Petitioner to engage and supplemental in

subordinate to his duties and responsibilities assigned

by the respondent air carrier employer. The sua sponte

dismissal for assertion of personal jurisdiction as cited

by the court as Rule 12(b)(2) should have been raised by

defendants as an affirmative defense or in an answer or

appearance and not raised by the court in a sua sponte

judgment and dismissal without proper handling of

notification and opportunity of Petitioner to cure any

alleged defect or amend the complaint.

Having deprived the Petitioner of an important test

or question of law implicitly establishes courts are not

concerned to uphold Congress clear intent that employees

of air carriers accessing or disseminating private

information in pilot confidential records are not exempt

from liability induced by persons and air carriers who do

so while not in accordance with the law for a routine use

or having failed to obtain the Pilot’s expressed written

consent for the release and dissemination of records 49

U.S.C. §44703(j)(l)(B) & 49 U.S.C. § 44703(j)(l)(C)&(D).

IV. The sua sponte dismissal implicates the district

court in gross mis-application of law found in Fed.

R. Civ. Proc. Rule 12(B) and 12(h).

The district court judgment and order in sua sponte

dismissal appears to make profound, improper and

unreasonable construct of multiple rules to support

the court determination alone and without evidence

being submitted from litigant’s defenses as required

under Rule 12(b) and Rule 12(h). The court transposed

affirmative defenses away from a litigant and assumed the

responsibility of the court to employ such “gate-keeping”

functions is inappropriate and courts are restricted from

such drastic and extreme measures as dismissal “the

severe sanction of dismissal should be imposed ‘only in the

face of a clear record of delay or contumacious conduct by

the plaintiff.’ “ Id. at 682 (quoting Durham v. Florida East

Coast Railway Co., 385 F.2d 366,368 (5th Cir.1967)). This

is constitutionally a reversible error for many defects of

the court application of the rule as Petitioner challenged

in appellate and reply briefs.

Appellate courts appear evenly split in their review

with little or no majority of support for or against sua

sponte dismissals and more critical of process courts

employ to arrive at the sua sponte dismissal “[t]he trial

judge should have given notice of his intention to dismiss,

an opportunity to submit a written memorandum in

opposition to such motion, a hearing, and an opportunity

to amend the complaint to overcome the deficiencies raised

by the court. . . .” California Diversified Promotions,

Inc. v. Musick, 505 F.2d 278, 281 (9th Cir.1974). Accord,

Lewis v. State of New York, 547 F.2d 4, 6 (2d Cir. 1976);

Literature, Inc. v. Quinn, 482 F.2d 372,374 (1st Cir.1973).

Judicial Review articles have reasoned that employing

affirmative defenses and inserting the court into an

adversarial position in litigation to be improper without

a litigant having answered a responsive pleading and/

or motion to raise such defenses.2 The district court

ordered dismissal of Petitioner only after defendants

named in the summons failed to timely appear and/or

answer Petitioner’s complaint. The district court seemed

to implicate a lack of merit in the complaint and joined

the same order denying Petitioner’s motion filed two days

earlier seeking emergency injunctive relief and without

scheduling any hearing on the motion. Even so, in such

case as meritless or frivolous and inarticulate complaints,

they must first be accepted if all factual allegations in a

complaint as true and take[n]... in the light most favorable

to a pro se plaintiff Phillips v. County of Allegheny, 515

F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.

89,93 (2007) and “must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. at 94 and the court must grant plaintiff

leave to amend a complaint unless amendment would be

2. 36 Quinnipiac L. Rev. 25 (2017-2018) Justice in Full Is

Time Well Spent: Why the Supreme Court Should Ban Sua Sponte

Dismissals.

inequitable or futile Grayson v. Mayview State Hosp., 293

F.3d 103,114 (3d Cir. 2002). The district court framing of

“futility” in refusing to grant leave to Petitioner to amend

the complaint and cure alleged deficiencies encapsulates

terse judicial activism as to parse language of the Fifth

Circuit analysis in its’ section 2. Applicable Law regarding

the court denial of a THIRD amended complaint and

motion in opposition raising the Rule 12(b)(6) affirmative

defenses in Marucci Sports, L.L.C. v. Nat’l Collegiate

Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014). In the

fuller context of the Fifth Circuit analysis of “2. Applicable

Law”, the appellate argued “the district court must

possess a “substantial reason” to deny leave to amend and

“failure to provide an adequate explanation to support

denial of leave to amend justifies reversal.” Mayeaux v.

La. Health Serv. And Indent. Co., 376 F.3d 420, 426 (5th

Cir. 2004) “unless the denial is “readily apparent,” and “if

the record reflects ample and obvious grounds for denying

leave to amend.” In this same context of analysis the

district court justifies his discretion to sua sponte dismiss

Petitioner’s complaint but fails to offer any explanation

of the futility outside of the pretext in the judgment for

subject matter jurisdiction this petition and preceding

prayers soundly rebutted. In Marucci the district court

had some reasoning and some record against the two

(2) prior motions and still granted leave to amend the

complaint before denying the third motion as futile given

the previous amendments failed to establish a record

or cured defaults of the prior two motions. The district

court in Petitioner’s dismissal held no such reasoning or

any record including any appearance or legitimate Rule

12 motion of a party defense to deny Petitioner leave

and motion to amend the allegedly defective complaint.

The Fifth Circuit established the record, reasoning and

explanation as proffered were sufficient to defeat an abuse

of discretion challenge on the appeal Anokwuru v. City

of Houston, et at, No. 20-20295 (5th Cir. March 16,2021)

Petitioner has fallen victim to substantial self

serving and craftily cited opinions to augment absence

of proper motion or appearance as “substantial reason”

from a vacant record justifying sua sponte dismissal and

constitutional challenge that denial of a Rule 15(a) motion

poses this case. The court alone determined without

motion or affirmative defenses as Rule 12(b) requires,

denying leave for Petitioner to amend his complaint was

improper and an abuse of discretion for lack of sufficient

reasoning from an empty record where no hearing or

motion other than Petitioner’s were before the court and

is reversible by law the Fifth Circuit failed to identify and

correct under their own precedence. This Court review ■

for reverse and remand is obliged to uphold and recoup

Article III constitutional protections of due process.

This haste to dismiss Petitioner’s complaint and

inhibit the injunctive relief motion likely contributed to

the court conflating rules and improperly dismissing

Petitioner’s complaint under Greenlaw, 128 S. Ct. at

2564; Henderson v. Shinseki, 131 S. Ct. 1197,1202 (2011)

(“Under [our adversary] system, courts are generally

limited to addressing the claims and arguments advanced

by the parties.”); McNeil v. Wisconsin, 501 U.S. 171,181

n.2 (1991) (“What makes a system adversarial rather

than inquisitorial is ... the presence of a judge who does

not (as an inquisitor does) conduct the factual and legal

investigation himself, but instead decides on the basis of

facts and arguments pro and con adduced by the parties.”)

Jefferson Fourteenth Associates v. Wometco De Puerto

Rico, Inc., 695 F.2d 524 (11th Cir. 1983)

V. The sua sponte dismissal deprives any opportunity

for ripe challenges to Chevron and statutory stare

decisis where agencies dispute Congress intent in

Whistleblower Protection Law and violated the

Appointments Clause allowing misconduct and

adjudications to oppose Congress reading of the

law.

The DOL OSHA is responsible for more than a dozen

different Congressional Acts appropriating duties to

investigate complaints arising from U.S. workers. The

DOL has as many diverse sets of rules for handling those

complaints with wide ranges of jurisdictional limitations

and remedies that are exclusive to those jurisdictions.

AIR21 is one of the most restrictive in terms of limitations

for when complaints must be brought, what actions

and subjects are covered under the act and what very

limited remedies are available to complainants should

investigators find a complaint meritorious. The only

benefit of the highly restrictive procedures for handling

AIR21 complaints under 29 CFR 1979 is a simple and

clear, interpretable intention of Congress in the law.

Safety reports made following adverse employment action

and safety reports of willful or intentional violation of

regulations or safety protocols are the only unprotected

activities under the law.

In response to sensational scandal in the financial

industry, Congress acted to curb risky and even

fraudulent activity of financial institutions by protecting

financial workers from retaliation for reporting these

risky activities that could adversely affect investor

holdings of public corporations under the SarbanesOxley legislation of 2002(SOX). Congress had greatly

exhausted legislative energies in AIR21 and hastily drew

SOX legislation to calm public markets and investor fears

of failures in Corporate Financial Responsibility. However,

Congress failed to create independent rules for handling

SOX complaints, underwriting compliance and enforcement

with AIR21 air carrier safety complaint procedures for

financial worker retaliation complaints. Highly complex

financial disclosures clearly contrast simple derivatives

of aviation safety reporting but disproportionately

earn merit determinations in a substantial majority of

retaliation complaints and inversely to the number of

merit determinations in AIR21 retaliation complaint

that are approximately 7% of all DOL complaints

disclosed by the DOL have issued a favorable outcome

for AIR21 whistleblowers. Moreover, courts routinely

claim imperfections and ambiguity in Congress’s hastily

drawn SOX law implicate fewer favorable SOX complaint

outcomes unfairly ensnare already low improbability any

aviation safety complainant will prevailing despite clear

statutory language dictating that only two complaint

distinctions that should not prevail under AIR21 while also

outlining broadest scopes of potential activities should be

protected without any certain exclusion. Nonetheless, air

carrier safety complaints administratively investigated

and adjudicated then reviewed by appellate courts have

a prolific history of statutory stare decisis and Chevron

deference Congress could not have intended. Statutory

stare decisis from poor jurisprudence of courts against

Congress’s intent to “disturb” agency ruling and their

“area of expertise” is precisely Congress’s warranted

for the due process afforded all parties under Article III

in administrative actions and is now upon this Court to

establish the law as Congress intended AIR12.

Congress and the FAA thrust AIR21 upon OSHA

without regard to limited “expertise” DOL investigators

could have with diverse complexities of evolving aviation

safety directives and flight operations since AIR21

inception. AIR21 and Pilot Records Improvement Act of

1996 have undergone significant changes in the law since

Petitioner brought his firstAIR21 complaint in October 2014

with much of the superseded guidance and prior statutory

versions of law obsolete and difficult to source without

substantial reach of investigative resources to demonstrate

a poor “expertise” of the DOL in its’ history of handling

AIR21 actions. The much more complex SOX protection

of Financial and Investment Industry whistleblower

disproportionately obtains favorable outcomes that

are near reciprocal of AIR21 complaints. Both Sox and

AIR21 together are disproportionately awarded favorable

outcomes compared to other industries such as those

covered under Seaman’s Protection Act (SPA, 46 U.S.C.

§ 2114) or Surface Transportation Assistance Act of 1982

(STAA, 49 U.S.C. § 31105) with well seasoned law seldom

engaged or revised compared to SOX and AIR21 industries.

DOL is an expert applying those long established laws

according to original intent but lulls mystique upon financial

or aviation safety industries’ whistleblower complaints

that subdues genuine and equal application for simplest

and clearest reading of the law from agency personnel

experience that is generally administrative and clerical.

Petitioner’s investigators largely come from regimented

military administrative experiences and the AL J formerly

adjudicated Social Security Administration Claims. This

agency “expertise” likely induced subjective and critical

analysis of AIR21 law related to protected activities

rather than evaluating the protected activities as claimed

under the statute as Congress clearly intended. Chevron

deference to “agency” expertise in this regard is clearly

faulty and the district court sua sponte dismissal thwarted

a rare opportunity for judicial review to answer significant

questions of public importance.

The DOL lack of expertise and familiarity with FAA

safety initiatives’ and correlating law allowed material

participation by DOL in violations of Complainant’s

privacy rights by abuse, unlawful dissemination and

disclosure of Confidential Pilot Records covered under

the Privacy Act of 1974 framed within Pilot Records and

Improvement Act of 1996 (PRIA) (49 USCA § 44703(h)

(5)). Petitioner repeatedly verbose pleadings advising of

the DOL investigation team and inappropriate inclusion

of the Solicitor, their possession and dissemination of

Petitioner’s Pilot records without consent or release of

liability as respondent violated extended to but should not

continue by the DOL. OSHA investigators sustained their

endorsement respondent abuses and unlawful handling of

PRIA records was reasonable and may justify adverse

employment action even in response to Petitioner making

safety reports and of potential violations of regulations

to the FAA and incorporated this position in June 2022

via “Closing Conference Letter” informing Petitioner of

proposed findings of a non-merit determination to dismiss

his 2021 AIR21 complaint. OSHA willful and deliberate

misconduct regarding Petitioner’s Confidential Pilot

Records violated PRIA Privacy law. Petitioner justly

pursued review and remedy outside the administrative

action’s purview and agency’s area of expertise or

judicial enforcement as state and federal causes of action

demonstrate civil remedy may be sought for PRIA

violations and damages awarded to parties adversely

affected by the violation FAA v. Cooper, 566 U.S. 284,132

S. Ct. 1441 (2012) and Nelson v. Tradewind Aviation, LLC,

Appellate Court of Connecticut Nos. 34624,34838.

The district court sua sponte dismissal deprives

Petitioner of his right to have the matter heard and

challenge Chevron and stare decisis for courts to

“interfere” and disrupt an absent FAA which is charged

with enforcement or upholding law preventing employers

from adversely affecting reputations of Pilots through

PRIA or opportunities for gainful and fruitful pilot

employment with high quality air carrier operations and

private operations now required to conduct PRIA records

review of prospective pilot hires.

Respondent also entered false statements and

information to OSH A regarding and including Petitioner’s

Confidential Pilot Records, intending to slander or defame

Petitioner in tortuous interference with a business

expectancy to misrepresent PRIA Pilot Records in their

possession and assert unknown and undisclosed deficiency

to deceive OSHA investigators for adverse decisions in

his AIR21 complaint (49 U.S.C. § 44703(j)(3)(A)&(B)) and

never described the alleged defects they claimed justified

the unlawful access and dissemination of his confidential

pilot records and termination. OSHA investigators failed

to follow PRIA law as Petitioner requested and cited

requirement of an opportunity to correct any described

deficiency (49 U.S.C. § 44703(h)(9)&(10)) or obtain copies

of all records provided without Petitioner’s consent.

DOL misconduct extended beyond these highlighted

breaches of Petitioner’s privacy with refusal of pertinent

agency review detailed in official written requests of

the Administrator, Regional Administrator, Office of

Inspector General and as provided under law, statute

and the agency rules to include Petitioner Freedom of

Information Request (FOIA) filed June 6,2023 and persists

even after the AL J unlawfully dismissed petitioner’s 2021

complaint erasing a monetary award and reinstatement.

The agency has indicated refusing to provide any or very

specific information requested and not exempted under

the FOIA Act of 1966 to include communications between

the Office of the Solicitor and Investigative staff that are

believed to contain inappropriate discussions regarding

Petitioner’s 2014 and 2021AIR21 cases as they were under

appellate and judicial review before respondent filed their

objection to agency findings in favor of Petitioner.

Beyond stated objections to appointments clause

violations of the ALJ under Lucia, Petitioner outlined

agency violations of the Administrative Procedures Act

and 29 CFR 18, particularly, rules requiring rotation of

ALJ case assignments among districts’ judges where

complaints are brought. Since 2014, the Chief ALJ had

improperly assigned more than 120 AIR21 cases to

only one ALJ from Cherry Hill, NJ ALJ District. Both

Petitioner’s 2014 case from Washington State and 2021

from Texas were assigned this same Cherry Hill, NJ ALJ

despite Petitioner protesting the appointments clause

violation beginning with his 2014 case. The Cherry Hill,

NJ ALJ is on record in Petitioner’s 2017 ALJ Hearing

declaring his role in the DOL was an ALJ “Circuit

Rider” assigned only AIR21 and operating between all

the ALJ districts to hear AIR21 cases despite no rule or

congressional appropriation for the DOL to create such

a biased position being shown in any published rule or

procedure and contrary to law and Congress legislation

for Administrative Law Judges. This deprives all the

districts from a proper rotation of cases and routine

familiarity of AIR21 that has likely induced significant

error in handling AIR21 cases the law requiring rotation

of assignments among the judges within districts where

complaint were brought is inclined to inhibit. The DOL

Chief AL J implicitly acknowledged DOL misconduct after

Petitioner objected to the Chief ALJ, Office of Inspector

General and Regional Administrator, the Cherry Hill,

NJ ALJ was not assigned another AIR21 case for the

remainder of the 2023 term or well into 2024 when the

. ALJ first AIR21 assignment is believed to be a complaint

brought in the Cherry Hill, New Jersey ALJ district.

Denial of requested emergency injunctive relief and

Sua sponte dismissal of Petitioners’ lengthy claims against

the DOL permitted substantial further misconduct

and retaliation against Petitioner in his AIR21 case in

violation of DOL ALJ rules under 29 CFR 18 and an

unlawful dismissal of Petitioner’s AIR21 Complaint that

vacated favorable findings of the Secretary and order for

reinstatement of his employment as Petitioner repeatedly

advised the ALJ and sought a stay while seeking

judicial review and enforcement of agency reinstatement

orders. Dismissal of Petitioner’s claims regarding the

ALJ misconduct assignments reinforces a defective

establishment of statutory stare decisis and deference

for Chevron by depriving Petitioner of an opportunity to

review conduct of the assigned ALJ in more than onehundred-twenty (120) cases where the final outcome was

only favorable to complainants in less than ten (10) total

cases the ALJ presided and decisions and orders of the

ALJ appear to violate substantial evidence standards of

review under Congress intent under the statute as well as

potential misconduct in application of rules of the tribunal

and Federal Rules of Civil Procedure under Chapter 7 of

Title 5.

Congress only permits two fundamental conditions

where a whistleblower complaint should hold no merit as

the activity is not protected under AIR21: 1) Reporting

of Safety information only after the adverse action has

commenced, or 2) safety reports related to willful or

inadvertent violation of rules or regulation and induced

by the reporting employee without an air carrier’s

knowledge. Tribunals have far too often injected

adversarial adjudication of merit determinations to

disregard or disqualify whistleblower protected activities

from coverage under the act. The Cherry Hill, NJ ALJ

assigned to more than 120 AIR21 cases has far history of

overreach and subjective application and broad expansion

of the simple exclusions of protected activity to void AIR21

claims as was demonstrated in Petitioner’s 2017 ALJ

hearing. Congress broad language and intent in the law

paints a very broad range of all encompassing activities

where a nexus can and should be formed with adverse

employment action to make the law as effective as possible

to promote safety reporting by frontline operations staff

through appropriate remedy for complainant to compel

air carrier compliance with safety and security protocols

installed by the FAA and inhibit harassment of safety

reporters.

ALJ misconduct and unlawful assignment in

Petitioner’s 2017 hearing refused to weigh substantial

evidence favorable to Petitioner, that his safety reporting

of July 9, 2014 was mandatory by law and the operator

expressed written safety directives to clarify three (3)

separate and conflicting duty and flight assignments

from multiple supervisors between his joint employers,

performing all of the conflicting assignments without

raising questions in the mandated safety reporting,

Petitioner would violate FAA Flight time and Rest

Requirements in 14 CFR § 135.267. The ALJ decision

absurdly stated his mandated report of concerns for the

compounded assignments exceeding the Rest Requirements

were inconsequential and not protected under AIR21 for

Petitioner could control at any time whether he would

actually violate the regulation. The ALJ implicated

Petitioner should have completed all assignments and not

engaged or contend with the joint employers’ conflicting

assignments and recent reiteration of protocols requiring

reports of erroneous assignments jeopardizing safety or

regulatory compliance. The ALJ patently failed to weigh

substantial evidence Petitioner presented for a preceding

duty period had violated the same regulation when Petitioner

was placed in similar circumstances and events beyond his

control caused a violation of rest period requirements in 14

CFR 135.267. Management criticized Petitioner and issued

companywide clarification requiring prompt reporting of

just such concerns in the future. The ALJ refused to allow

evidence of poor safety culture’s causation of an aircraft

accident soon after Petitioner’s termination when similar

operations tempo and persistent staffing issues plaguing

Petitioner July 9, 2014, contributed to damage that could

have been more substantial and injurious to aircraft

occupants. The ALJ also weighed unsupported testimony

of respondent witnesses against Petitioner’s substantial

physical evidence and communications regarding poor

safety culture contended between joint employers despite

an unheard motion in limine the ALJ refused to rule

or answer Petitioner’s requests to limit unsupported

testimony.

VI. The sua sponte dismissal deprives opportunity

for ripe challenge whether Congress intended

whistleblower protection law to permit setoffs

in backpay awards in clear absence of punitive

damages as a remedy.

AIR21 has no compelling feature for DOL to

adequately serve FAA and Whistleblower protections

intended to enhance aviation safety and security

protocols. AIR21 contains no “kick-out” provision or

allows preemption by state law that is meaningful or

dissuades misconduct or violations of air carriers Act and

no punitive remedy is available to wrongfully terminated

whistleblowers while many other OSHA investigated

actions provide substantial remedy to discourage violation

of retaliation and discrimination prevention programs.

While investigators contemplated dismissal of Petitioner’s

AIR21 complaint, their correspondence demanded

Petitioner payroll and income records including premature

withdrawal from retirement activities needed to support

Petitioner’s loss of income from respondent retaliation

and blacklisting.

AIR21 language does not cite sett-offs for monetary

awards and does not narrow consideration of “Front Pay”

or “Back Pay” where “return of complainants to their

former position and pay is not possible.” The district court

sua sponte dismissal deprives courts of a rare opportunity

to argue growing judicial distaste of courts application

sett-off doctrine in discrimination complaints where no

punitive damage remedy is available and other awards

are highly restrictive or capped with no trebling of actual

damages for willful misconduct or intent to violate or not

comply with law. Petitioner is particularly aggrieved where

limited mitigation of further damage for respondents’

willful actions to blacklist Petitioner with operators known

to Respondent who required notice and approval to avoid

conflicts during Petitioner’s employment. Respondent

continued to willfully and knowingly violate privacy act

law with regard to Petitioner PRIA Pilot Records to

publicly blacklist Petitioner with other air carriers and

FAA operators to an unknown degree of mishandling of

PRIA records prevented Petitioner from finding gainful

employment for the required records requests to work

under FAA oversight allow the respondent to perpetuate

blacklisting as far as the required FAA PRIA Records

Checks may reach to prevent his gainful employment as

a commercial pilot.

CONCLUSION

The Supreme Court should grant this petition for writ

of certiorari so pertinent and important questions of law

and judicial review of agency orders, of agency conduct

and Congress intent to secure Article III due process

rights’ in Article II administrative agency actions are

finally fully answered by this Court establishing improper

application of unlegislated acts through statutory stare

decisis shall be reversed; that an accord of appropriate

judicial review shall be always be conducted as established

by this Court and Congress original intent for Pilot

Privacy and Whistleblower Protection being restored as

an effective law of the land to regain frontline air carrier

operations staff and pilot confidence in safety and security

of flight operations within mandated safety systems of air

carriers they are employed so persons and and property

engaged in air commerce or inadvertently exposed as

a patient under the care of emergency air ambulance

operators may quietly enjoy the highest performing duties

of care Congress intended for aviation safety and security

programs.

Respectfully submitted,

Robert D. Kreb, Jr.

2100 SE 40th Avenue

Amarillo, TX 79118

(806) 471-3007

Pro Se

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.