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

I

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

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

la

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF TEXAS, AMARILLO

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

4a

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

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 GRANTING

TEMPORARY RESTRAINING ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

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

,58a

Ill

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

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED DECEMBER 29, 2023

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-10758

Summary Calendar

ROBERT KREB,

Plaintiff-Appellant,

versus

INTEGRA AVIATION, L.L.C., DOING BUSINESS

AS APOLLO MED FLIGHT; APOLLO MED

FLIGHT, L.L.C.; PANAVIA AIR TAXI, L.L.C,

DOING BUSINESS AS HAVEN AERO, L.L.C.;

HAVEN AERO, L.L.C.; FLIGHT MECHANIX,

L.L.C.; YOUNG FIRM, PC.; LEE MCCAMMON,

CORPORATE OFFICER OF APOLLO; THOMAS

L. KLASSEN, DIRECTOR OF OPERATIONS;

JOSEPH H. BELSHA, III, CHIEF PILOT;

WHITNEY SMITH, VICE PRESIDENT OF HUMAN

RESOURCES; TRAVIS LAMANCE, DIRECTOR

OF MAINTENANCE; JEREMI K. YOUNG;

SECRETARY, UNITED STATES DEPARTMENT

OF LABOR,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:23-CV-88

2a

Appendix A

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Robert Kreb, a pilot, was fired by Integra Aviation

after his repeated reports that his flight operation

assignments did not comply with federal aviation

regulations. He sued, pro se, various private parties and

the Secretary of Labor, claiming violations of the Privacy

Act of 1974 and the Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century, and asserting libel,

defamation, and slander under state law. Those claims

were also pending before the Department of Labor. Kreb

sought a temporary restraining order to enjoin the DOL

from initiating a review of his claims by an administrative

law judge.

In a five-page order issued June 21,2023, the district

court denied the TRO and dismissed the action, without

prejudice, for want of subject matter jurisdiction. We

affirm that dismissal, essentially for the reasons assigned

by the district court.

That court properly determined that the Administrative

Procedure Act does not authorize judicial interference

with an agency action that is not “final.” The court

distinguished Axon Enterprise, Inc. v. FTC, 598 U.S.

175, 143 S. Ct. 890, 215 L. Ed. 2d 151 (2023), because it

involved a structural, constitutional claim, which Kreb’s

* This opinion is not designated for publication. See 5th Cir.

R. 47.5.

3a

Appendix A

suit does not. The district court also observed that the

claims related to the non-federal defendants “are not yet

fit for adjudication in federal court.” And the court noted

that the suit includes non-diverse parties.

As carefully explained by the district court, the

dismissal without prejudice is correct and is AFFIRMED.

4a

APPENDIX B — ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF TEXAS, AMARILLO

DIVISION, FILED JUNE 21, 2023

IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS AMARILLO DIVISION

2:23-CV-088-Z

ROBERT KREB,

Plaintiff,

v.

INTEGRA AVIATION, LLC., et al.,

Defendants.

ORDER

Before the Court is Plaintiffs Emergency Motion

for a Temporary Restraining Order and Preliminary

Injunction (“Motion”) (ECF No. 8), filed on June 18,2023.

Having considered the Motion, briefing, and relevant law,

the Court DENIES the Motion and DISMISSES the case.

Background

Plaintiff, a pro se litigant, is a pilot who was terminated

by Defendant Integra Aviation, LLC, following Plaintiff’s

5a

Appendix B

“repeated and escalating reports” that his flight operation

assignments did not comply with federal aviation

regulations. ECF No. 9 at 2. Plaintiff asserts violations

of the Privacy Act of 1974 and the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century

(“AIR21”), and claims of libel, defamation, and slander

under Texas law. ECF No. 3 at 22-24. Plaintiffs claims

are currently before the United States Department of

Labor (“DOL”). However, Plaintiffs Motion asks the Court

to enjoin DOL “and all persons acting on its behalf” from

initiating an administrative law judge’s (“ALJ”) review

• of his complaint “pending entry by the Court of a final

judgment in this action.” ECF No. 8 at 6.

Legal Standard

An applicant seeking a temporary restraining order

must show: (1) a substantial likelihood of success on the

merits; (2) a substantial threat of irreparable harm if the

injunction is not granted; (3) that the threatened injury

outweighs any harm that the injunction might cause to

the defendant; and (4) that the injunction will not disserve

the public interest. Opulent Life Church v. City of Holly

Springs, 697 F.3d 279,288 (5th Cir. 2012). Injunctive relief

“is an extraordinary and drastic remedy, not to be granted

routinely, but only when the movant, by a clear showing,

carries the burden of persuasion.” White v. Carlucci, 862

F.2d 1209, 1211 (5th Cir. 1989). The applicant bears the

burden of persuasion on all four elements, and failure

on any one of them warrants denial. See Bluefield Water

Ass’n, Inc. v. City of Starkville, 577 F.3d 250, 253 (5th

Cir. 2009).

6a

Appendix B

Analysis

A. The APA Does Not Authorize Plaintiff’s

Requested Relief

Under the Administrative Procedure Act (“APA”), an

agency’s decisions during an agency action must generally

await the “final” agency action to be reviewed. See 5 U.S.C.

§ 704. Additionally, the ripeness doctrine protects agencies

“from judicial interference until an administrative decision

has been formalized and its effects felt in a concrete way

by the challenging parties.” Abbott Lab’ys v. Gardner, 387

U.S. 136, 148-49 (1967). This Court has noted that the

“general rule of nonreviewability is not absolute.” All. for

Hippocratic Med. v. FDA, No. 2:22-CV-223-Z, 2023 WL

2825871, at *13 (N.D. Tex. Apr. 7, 2023) (quoting Myron

. v. Martin, 670 F.2d 49, 52 (5th Cir. 1982)).1 But Plaintiff

cites a recent Supreme Court ruling for a much broader

proposition: that individuals are entitled “as a matter of

right” to judicial review in an Article III court “prior to

any issues’ potentially improper governance” by an AL J

irrespective of statutory “kick-out” provisions for removal

to federal court. Axon Enter., Inc. v. FTC, 143 S. Ct. 890,

902 (2023); ECF No. 8 at 2.

1. For example, courts have excused a claimant’s failure to

exhaust administrative remedies where exhaustion “would be

futile because the administrative agency will clearly reject the

claim.” Gulf Restoration Network v. Salazar, 683 F.3d 158, 176

(5th Cir. 2012). And “[a]dministrative remedies that are inadequate

need not be exhausted.” Coit Indep. Joint Venture v. Fed. Sav. &

Loan Ins. Corp., 489 U.S. 561, 587 (1989).

7a

Appendix B

Plaintiff misreads Axon. There, the Court held the

relevant SEC/FTC statutes did not displace a district

court’s federal question jurisdiction because the plaintiffs’

constitutional challenges were “structural” — and

therefore “collateral” to the agencies’ core competence and

typical enforcement actions. Axon, 143 S. Ct. at 899-900.

Specifically, one case challenged FTC’s combination of

prosecutorial and adjudicative duties and the tenure

protection FTC affords its ALJs. Id. at 897. The Court

reasoned that those claims were outside the agency’s

area of expertise and did not implicate considerations of

agency policy. Axon, 143 S. Ct. at 902. Additionally, the

claims would have prevented the ALJs “from exercising

any power” and were challenges “to the structure or very

existence of an agency.” Id. Thus, the harm alleged was

“being subjected to unconstitutional agency authority — a

proceeding by an unaccountable AL J.” Id. at 903 (internal

marks omitted). In other words, the parties objected to

the agencies’ “power generally, not to anything particular

about how that power was wielded.” Id. at 904. However,

the Court made clear that it is true “and will remain so”

that parties must generally wait before appealing, even

when doing so subjects them to “significant burdens.”

Id. at 904 (“Nothing we say today portends newfound

enthusiasm for interlocutory review.”).2 The Court also

clarified that the “expense and disruption of protracted

adjudicatory proceedings” on a claim do not justify

immediate review. Id. (internal marks omitted).

2. See also Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833, 848 (1986) (“Article III does not confer on litigants

an absolute right to the plenary consideration of every nature of

claim by an Article III court.”).

8a

Appendix B

Here, Plaintiff has not asserted claims outside of

DOL’s “sphere of expertise” or claims that are “collateral”

to any decisions DOL will make on his complaint. Id.

at 906; see also id. at 901 (a “challenge to [a discharge]

is precisely the type of personnel action regularly

adjudicated” by an agency review board). Plaintiff does

not assert constitutional claims against the structure

of DOL. Rather, Plaintiff complains over how DOL has

handled his claims thus far. See ECF No. 8 at 2-3. At

least one court has declined to disturb DOL’s treatment of

the underlying facts of this case.3 And Plaintiff provides

no evidence of DOL’s “historically dysfunctional and

inconsistent treatment of AIR21 complaints.” ECF No. 3

at 25. So Plaintiffs’ pleadings are insufficient to convince

the Court that DOL is biased or that its procedures are

inadequate. Therefore, the Court will not afford Plaintiff

the extraordinary remedy of enjoining DOL from carrying

out its statutory duties in adjudicating Plaintiff’s claims.

B. The Case Must Be Dismissed for Lack of

Jurisdiction

For the reasons explained above, Plaintiff’s claims

related to the non-federal Defendants are not yet fit for

adjudication in federal court. Because Plaintiff asserts no

constitutional claims against DOL that implicate Axon,

the Court lacks federal question jurisdiction under 28

3. See Kreb v. DOL, No. 20-73497, 2022 WL 2188408, at *1

(9th Cir. June 17, 2022), cert, denied sub nom. Kreb v. DOL, No.

22-762,2023 WL 2959405 (U.S. Apr. 17,2023) (substantial evidence

supported DOL’s finding that Plaintiff failed to establish a prima

facie retaliation case because he did not engage in protected

activity).

9a

Appendix B

U.S.C. § 1331. Defendants also include non-diverse parties.

See 28 U.S.C. § 1332. Thus, there can be no supplemental

jurisdiction for Plaintiffs claims under Texas law. See 28

U.S.C. § 1367(c)(3). Finally, Plaintiff asserts the Court has

jurisdiction under 28 U.S.C. § 1361, which gives district

courts “original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to

the plaintiff.” See ECF No. 3 at 15. Of course, the Court

cannot enjoin DOL from adjudicating Plaintiff’s claims

and simultaneously compel its officers to do just that. But

in any case, to obtain mandamus: “(1) the plaintiff must

have a clear right to the relief, (2) the defendant must

have a clear duty to act, and (3) no other adequate remedy

must be available.” Jones v. Alexander, 609 F.2d 778,781

(5th Cir. 1980). Plaintiff has not shown he is entitled to

mandamus. Therefore, the court lacks subject matter

jurisdiction, and the case must be dismissed. See FED.

R. CIV. P. 12(b)(2).

CONCLUSION

For the foregoing reasons, the Court DENIES the

Motion and ORDERS that this case be DISMISSED

without prejudice for lack of subject-matter jurisdiction.

SO ORDERED.

June 21,2023

/s/ Matthew J. Kacsmarvk

MATTHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE

10a

APPENDIX C — ORDER DENYING

RECONSIDERATION OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, AMARILLO DIVISION,

FILED JUNE 26, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

2:23-CV-088-Z

ROBERT KREB,

Plaintiff,

v.

INTEGRA AVIATION, LLC., et al.,

Defendants.

ORDER

Before the Court is Plaintiff’s Motion for

Reconsideration of Order Denying Requests for an

Injunction and Dismissal (“Motion”) (ECF No. 12), filed

on June 21,2023. Having considered the Motion, briefing,

and relevant law, the Court DENIES the Motion.

“Reconsideration of a judgment after its entry is an

extraordinary remedy that should be used sparingly.”

Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.

2004). A Rule 59(e) motion “may not be used to relitigate

issues that were resolved to the movant’s dissatisfaction.”

Parks v. Hinojosa, No. 4:21-CV-00111-0, 2021 WL

11a

Appendix C

2783989, at *2 (N.D. Tex. July 2, 2021). Rather, a Rule

59(e) motion “must clearly establish either a manifest error

of law or fact or must present newly discovered evidence

and cannot be used to raise arguments which could, and

should, have been made before the judgment issued.”

Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567

(5th Cir. 2003). “Manifest error” is “one that is plain and

indisputable, and that amounts to a complete disregard

of the controlling law or an obvious mistake or departure

from the truth.” Berezowsky v. Rendon Ojeda, 652 Fed.

Appx. 249, 251 (5th Cir. 2016).

Here, Plaintiff identifies no manifest error of law or

fact and presents no new evidence. Therefore, the Court

will not reconsider its June 21,2023, Order. See ECF No.

10. But the Court writes additionally to add clarity to

the Order concerning Plaintiff’s claims arising under the

Privacy Act of 1974. The Act’s remedies provision provides

a cause of action “against the agency” for violations of the

Act, thereby precluding liability under the Act for the non­

agency Defendants. See 5 U.S.C. § 552a(g)(l). Accordingly,

Plaintiff fails to state a claim under the Privacy Act as

to those Defendants. Additionally, the Fifth Circuit has

held that “failure to present a request that comported

with applicable Privacy Act regulations constitute^] a

failure to exhaust administrative remedies,” which equals

a failure to state a claim upon which relief can be granted.

Taylor v. US. Treasury Dep’t, 127 F .3d 470,476 (5th Cir.

1997). To the extent Plaintiff seeks to pursue an exhausted

claim under the Privacy Act against the Secretary of the

Department of Labor, Plaintiff has not pled facts that

would make relief plausible. Therefore, Plaintiffs’ claims

12a

Appendix C

under the Privacy Act should also be dismissed under

Rule 12(b)(6).

SO ORDERED.

June 26,2023

/s/ Matthew J. Kacsmarvk__________

MATTHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE

13a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, AMARILLO DIVISION,

FILED JULY 19,2023

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

2:23-CV-088-Z

ROBERT KREB,

Plaintiff,

v.

INTEGRA AVIATION, LLC., et al.,

Defendants.

ORDER

Before the Court is Plaintiff’s Joint Motion for Relief

from a Final Judgment and for Leave to File an Amended

Complaint (“Motion”) (ECF No. 26), filed on July 9,2023.

Having considered the Motion, briefing, and relevant law,

the Court DENIES the Motion.

Background

Plaintiff, a pro se litigant, is a pilot who was

terminated by Defendant Integra Aviation, LLC,

following Plaintiffs “repeated and escalating reports”

14a

Appendix D

that his flight operation assignments did not comply with

federal aviation regulations. ECF No. 9 at 2. Plaintiff

alleges violations of the Privacy Act of 1974, the Wendell

H. Ford Aviation Investment and Reform Act for the 21st

Century (“AIR21”), and claims of libel, defamation, and

slander under Texas law. ECF No. 3 at 22-24. Plaintiffs

claims are currently before the United States Department

of Labor (“DOL”). But Plaintiff filed a motion for a

temporary restraining order (“TRO”) asking the Court

to enjoin DOL “and all persons acting on its behalf from

initiating a review of his complaint “pending entry by the

Court of a final judgment in this action.” ECF No. 8 at 6.

The Court denied the motion and dismissed the case. ECF

No. 10. Plaintiff then filed a motion for reconsideration,

which the Court also denied. ECF Nos. 12, 25. Plaintiff

now moves for relief from judgment under Rule 60(b) and

leave to amend his complaint.

Legal Standard

“Courts-are disinclined to disturb judgments under

the aegis of Rule 60(b).” Pease v. Pakhoed Corp., 980

F.2d 995,998 (5th Cir. 1993). “It is. well established that

Rule 60(b) requires the movant to demonstrate that he

possesses a meritorious cause of action.” Id. And “it is

not enough that a grant of the motion might have been

permissible or warranted; rather, the decision to deny

the motion must have been sufficiently unwarranted

as to amount to an abuse of discretion.” Id.; see also

Thunderhorse v. Pierce, 715 Fed. Appx. 357,358 (5th Cir.

2017) (a movant seeking relief under Rule 60(b) has the

burden of establishing “extraordinary circumstances”).

15a

Appendix D

Rule 15(a)(2) provides that leave to amend should be

freely given by the court when justice so requires. Fed.

R. Civ. R 15(a)(2). The determination of whether a party

should be granted leave to amend is entrusted to the sound

discretion of the district court. Foman v. Davis, 371 U.S.

178, 182 (1962). “[Although a district court’s discretion

to deny leave to amend is limited, leave to amend is not

automatic.” Fin. Acquisition Ps. LP v. Blackwell, 440

F.3d 278,291 (5th Cir. 2006). To conduct the inquiry, the

Fifth Circuit “examines five considerations to determine

whether to allow leave to amend a pleading: (1) undue

delay, (2) bad faith or dilatory motive, (3) repeated failure

to cure deficiencies by previous amendments, (4) undue

prejudice to the opposing party, and (5) futility of the

amendment.” Smith v. EMC Corp., 393 F.3d 590, 595

(5th Cir. 2004). “An amendment is futile if it would fail to

survive a Rule 12(b)(6) motion.” Mariucci Sports, L.L.C.

v. NCAA, 751 F.3d 368,378 (5th Cir. 2014).

Analysis

A. The Court’s Dismissal of Plaintiffs Complaint

Was Not Unwarranted

The Court’s June 21, 2023, Order explained that

Plaintiffs requested relief was not authorized by the

Administrative Procedure Act because the DOL action is

not yet “final”1 and because Plaintiff did not demonstrate

1. Plaintiff has attached no documents from the DOL proceedings

or any evidence outside of his pleadings and declarations. Although

not stated in the complaint, Plaintiffs TRO briefing asserted that

DOL issued a “Final Determination” on April 26,2023. ECF No. 8-1

16a

Appendix D

he was entitled to mandamus relief. ECF No. 10 at 2-5;

see also Veldkoen v. US. Coast Guard, 35 F.3d 222, 225

(5th Cir. 1994) (“An agency’s initiation of an investigation

does not constitute final agency action.”). The Order

also explained that the Supreme Court’s ruling in Axon

Enter., Inc. v. FTC did not bestow upon Plaintiff judicial

review of agency adjudication in an Article III court “as

a matter of right.” 143 S. Ct. 890 (2023); ECF No. 10 at

2-4. Additionally, Plaintiffs claims under 49 U.S.C. § 42121

were already denied by the Ninth Circuit and the Supreme

Court. See Kreb v. DOL, No. 20-73497,2022 WL 2188408,

at *1 (9th Cir. June 17,2022), cert, denied sub nom. Kreb

v. DOL, 143 S. Ct. 1751 (2023). And the Court explained

at 5. Plaintiff’s motion for reconsideration then provides conflicting

dates of April 17 and thirty days after April 26 for the supposed

final agency action. ECF No. 12 at 3, 5. That latter date falls after

the date Plaintiff filed his complaint. See Dos Santos v. BeLmere

Ltd P’ship, 516 Fed. Appx. 401, 403 (5th Cir. 2013) (subject matter

jurisdiction must exist “at the time the suit was filed”). But in any

case, Plaintiffs assertions of finality are contradicted by his other

pleadings. See, e.g., ECF No. 3 at 11 (accusing DOL of forwarding

the investigation “to the DOL Office of Administrative Law Judges

for a de novo review should Mr. Kreb or Defendants object to those

findings”); id. at 25 (noting the complaint is “currently before the

DOL and Pending objection for the OALJ”); id. (asking the Court

to order DOL to “suspend tolling of the 30-day period to object to

the Secretary’s Preliminary Order”); ECF No. 8 at 3 (“The Cherry

Hill ALJ is currently attempting to rush the parties into pretrial

activities, correspondence and conference”); id at 5 (asking the Court

to enjoin “a hasty moving DOL in Plaintiff’s Air21 complaint”); ECF

No. 9 at 5 (seeking to prevent “further Administrative Action by the

DOL”); ECF No. 12 at 2 (acknowledging Plaintiff’s “current Air21 '

matter before the DOL”); ECF No. 26 at 4 (“[T]he ALJ is intent to

maintain his jurisdiction and rapidly adjudicate this matter”).

17a

Appendix D

why it lacks supplemental jurisdiction over Plaintiffs

claims under Texas law. ECF No. 10 at 4.2 Furthermore,

even if the Court has subject matter jurisdiction, Plaintiff

failed to state a claim under the Privacy Act of 1974. See

ECF No. 25 at 1-2.

“The Court understands that Plaintiff feels strongly

about the circumstances leading up to this action and

disagrees with the Court’s consideration of his claim

against Defendants. But his feelings upon the same,

no matter how fervent, are not a basis for relief from a

final judgment.” Kreb v. Jacksons Food Stores, Inc., No.

3:16-CV-00444-REP, 2021 WL 6135565, at *4 (D. Idaho

Dec. 29,2021), appeal dismissed, No. 22-35093,2022 WL

1321208 (9th Cir. Mar. 25, 2022). Therefore, the Court

DENIES Plaintiffs Rule 60(b) motion.

B. Plaintiff May Not File an Amended Complaint

Because the Court has declined to vacate its judgment,

Plaintiffs motion for leave to amend his complaint must

also be denied. But in any case, Plaintiffs proposed

amendment would be futile because it does not cure the

defects in the original complaint. See ECF No. 26-3.

Therefore, the Court DENIES Plaintiffs Rule 15 motion.

2. Even if the Court has supplemental jurisdiction over

Plaintiff’s defamation-related claims, those claims are preempted

by federal law. See 49 U.S.C. § 447030(j).

18a

Appendix D

Conclusion

For the foregoing reasons, the Court DENIES the

Motion.

SO ORDERED.

July 19,2023

/s/ Matthew J. Kacsmarvk

MATTHEW J. KACSMARYK

UNITED STATES DISTRICT

JUDGE

19a

APPENDIX E — ORDER OF THE

ADMINISTRATIVE LAW JUDGE,

FILED AUGUST 1,2023

UNITED STATES DEPARTMENT OF LABOR

OFFICE OF ADMINISTRATIVE LAW JUDGES

Cherry Hill, New Jersey

Issue Date: 01 August 2023

OALJ Case No.: 2023-AIR-00008

OSHA Case No.: 6-4140-22-02

In the Matter of

ROBERT KREB,

Complainant,

v.

INTEGRA AVIATION, LLC

d/b/a APOLLO MEDFLIGHT, LLC

Respondent.

ORDER DENYING COMPLAINANT’S

MOTION FOR DISQUALIFCATION OF

ADMINISTRATIVE LAW JUDGE

This matter arises under the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century

(“AIR 21”) which was signed into law on April 5,2000, as

amended by The Consolidated Appropriations Act, 2021,

Pub. L. No. 116-260, Division V, Title I, § 118, 134 Stat.

1182 (2020), signed into law December 27, 2020. The Act

includes a whistleblower protection provision, with a

20a

Appendix E

Department of Labor complaint procedure. Implementing

regulations are at 29 C.F.R. Part 1979.

On May 23, 2023, OSHA referred this matter to the

Office of Administrative Law Judges. On May 24, 2023,

the Chief Judge issued a Notice of Docketing. On June

5,2023, the District Chief Judge assigned this matter to

the undersigned who issued a Notice of Assignment the

following day setting an initial prehearing conference for

June 27, 2023. Because Complainant did not appear at

scheduled prehearing conference, on June 30, 2023, the

Tribunal issued another Notice of Assignment and Initial

Prehearing Order rescheduling the initial prehearing

conference for July 11,2023. On July 11,2023, the Tribunal

held this conference and set procedural deadlines as well

as set the hearing to begin on February 5,2024. During

this teleconference, the Tribunal notified the parties that

it was changing the identity of Respondent in the caption

for all future filings.1

On July 11, 2023, Complainant, a self-represented

litigant, filed the instant motion. The motion has attached

to it no affidavits or other declarations. See 29 C.F.R.

§ 18.33(a)(4).

Complainant contends that the undersigned’s

prior conduct during an earlier AIR-21 case filed by

Complainant, and the undersigned’s subsequent decision

where Complainant did not prevail, constitute grounds for

1. At the time of this order a copy of the transcript of this

meeting was not available; however, the July 12, 2023, Notice of

Hearing itself reflects this change.

21a

Appendix E

disqualification. Complainant cites as authority for this

proposition 29 C.F.R. § 18.16(b). Mot. at 1. Complainant

avers a “more consequential consideration” is DOL’s

failure to correctly identify the appropriate entity as

the Respondent. Mot. at 2. Complainant contends that,

in the current case, OSHA’s not publicizing its proposed

finding of an award in an Enforcement Office Press

Releases demonstrates its disinterest and/or some

resentment by the Regional Administrator against him.

Complainant alleges the Regional Administrator did

not properly calculate his damages in his award below.

Mot. at 3. Complainant alleges that the undersigned “is

generally hesitant to accept blacklisting in complaints

already investigated.” Mot. at 3. Complainant moves to

disqualify the undersigned “as a matter of law because of

the double-for-cause tenure protection violates Article II

of the Constitution.” Mot. at 5. Complainant alleges that

the undersigned “has repeatedly dismissed complaints

where the complainant has not appropriately named

a covered employer under the AIR 21 statute. Mot. at

6. Complainant takes umbrage with the undersigned’s

experience in aviation. Mot. at 7 - 8. Complainant asserts

that 29 C.F.R. § 18.16 is “thinly veiled” and that the

Tribunal should be guided by 28 U.S.C. § 455. Finally,

Complainant seems to take umbrage with the expedited

nature of the proceedings, once assigned to the Tribunal.

On July 24, 2023, Respondent filed its reply.

Respondent points out that the Tribunal has already

changed the identity of the parties in the caption to all

future pleadings. It notes that Complainant’s prior AIR21 case involved a completely different entity with no

22a

Appendix E

association to Respondent. Further, that matter is closed

and removed in time from the instant matter by almost

five years. Further, in the prior case, OSHA did not find

in Complainant’s favor where here OSHA has found a

violation occurred. Respondent notes that 29 C.F.R.

§ 18.16(b) requires supporting affidavits, declarations,

or other documents to accompany such a motion, and

Complainant provided none. Respondent agrees with

Complainant that 28 U.S.C. § 144 is the applicable statute

for a party to bring a motion seeking recusal of a judge

based on bias. And in the Fifth Circuit, the bias “must

be of a continuing and personal nature and not simply

bias against the attorney or in favor of another attorney

because of his misconduct.” Reply at 4, quoting Henderson

v. Dept, of Pub. Safety and Corrections, 901 F.2d 1288,

1296 (5th Cir. 1990). Counsel notes that the Supreme Court

has held that judicial rulings alone almost never constitute

a valid basis for a bias or partiality motion. Respondent

again emphasizes that Complainant raised no arguments

in an affidavit to meet the threshold requirement for

recusal. Thus, his motion fails.

Discussion

Complainant raises several allegations that are simply

not germane to the proceedings at this stage. Therefore,

the Tribunal will only address those allegations levied

against it and not those levied against OSHA or other

DOL officials, for whom the Tribunal has no jurisdiction.

A party filing a motion to disqualify an ALJ must

“allege grounds for disqualification, and include any

appropriate supporting affidavits, declarations or other

23a

Appendix E

documents.” 29 C.F.R. § 18.16(b). Requiring supporting

proof through an affidavit, declaration, or other document

is consistent with the Administrative Procedures Act and

the Judicial Code which provide for disqualification only

upon sufficient showing of bias by affidavit. See 5 U.S.C.

§ 556(b)(3)(requiring “timely and sufficient affidavit of

personal bias or other disqualification”); 28 U.S.C. § 144

(requiring “timely and sufficient affidavit that the judge

before whom the matter is pending has a personal bias

or prejudice”). Complainant has submitted no evidence to

support his claim and therefore the Motion can be denied

for that reason alone.2 However, the Tribunal will briefly

address several of the allegations raised by Complainant.3

One of Complainant’s allegations concern the proper

identification of Respondent. The Tribunal specifically

recognized this as an issue during its review of the file

once it was assigned the case. Consequently, the Tribunal

sua sponte raised the issue during the initial prehearing

conference and thereafter corrected the name of the

Respondent. The caption now identifies the exact same

party that Complainant identified when he first filed his

2. Should a party fail to provide evidence that the AL J acted on

bias, either stemming from an extrajudicial source or demonstrated

by deep-seated antagonism that precludes the exercise of fair

judgment by the AL J, a motion to disqualify will be denied. Partree

v. Astrue, 638 F.3d 860, 865 (8th Gir. 2011); Reddy v. Commodity

Futures Trading Comm., 191 F.3d 109, 119 - 20 (2d Cir. 1999);

Cochran v. Consolidation Coal Co., 16 BLR 1-101,107 (1992).

3. For example, the Tribunal need not further address the

pace of these proceedings for the statute and the regulation each

make clear that these are to be expedited proceedings. See 49 U.S.C.

§ 42121(b)(2)(A); 29 C.F.R. § 1979.107(b).

24a

Appendix E

OSHA complaint. Therefore, this allegation not only is

moot, but does not serve as reasonable grounds for recusal.

Complainant further alleges the undersigned should

recuse because he adjudicated Complainant’s prior

AIR-21 complaint. The Tribunal acknowledges that it

presided over Complainant’s prior AIR-21 claim. See Kreb

v. Jackson Jet Center et at., Case No. 2016-AIR-00028

(Aug. 6,2018) (D&O denying Complaint), affd, ARB Case

No. 2018-0065 (Sept. 28, 2020). The Tribunal notes that

Complainant made no allegation of the undersigned’s

misconduct during his appeal of that D&O.

There is a strong presumption that AL Js are unbiased.

See Profl Massage Training Ctr., Inc. v. Accreditation

Alliance of Career Schs. & Colls., 781 F.3d 161, 178 (4th

Cir. 2015) (citing Morris v. City of Danville, 744 F.2d

1041, 1044 (4th Cir. 1984)); Perkins v. Astrue, 648 F.3d

892, 902 (8th Cir. 2011) (quoting Rollins v. Massanari,

261 F.3d 853,857 (9th Cir. 2001) (“AL Js and other similar

quasi-judicial administrative officers are presumed to be

unbiased.”)); Partree v. Astrue, 638 F.3d 860, 865 (8th

Cir. 2011) (quoting Withrow v. Larkin, 421 U.S. 35, 47

(1975) (“There is a ‘presumption of honesty and integrity

in those serving as adjudicators.’”)). “[T]he burden of

establishing a disqualifying interest [of an AL J] is upon

the person making the contention.” West v. Astrue, Civ. A.

No. 5:07-133 (CAR), 2008 U.S. Dist. LEXIS 92334, 2008

WL 2024963, at *9 (M.D. Ga. May 8,2008). Remarks “that

are critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily do not support a

bias or partiality challenge.” Liteky v. United States, 510

25a

Appendix E

U.S. 540,555 (1994). Furthermore, “judicial rulings alone

almost never constitute a valid basis for a bias or partiality

motion.” Id. at 555. “Unfavorable rulings and possible

legal errors in an ALJ’s orders generally are insufficient

to prove bias.” Matthews, slip op. at 3 (quoting Powers

v. Paper, Allied Indus., Chem. & Energy Workers Int’l

Union, ARB No. 04-111, ALJ No. 2004AIR-019, slip op.

at 17 (ARB Aug. 31. 2007)).

Additionally, AL Js are presumed to act impartially.

Matter ofSlavin, ARB No. 04- 088, ALJ No. 2004-MIS002, slip op. at 16 (ARB Apr. 29, 2005); see also Billings

v. Tennessee Valley Auth., Case No. 1991-ERA-12, slip op.

at 4 (ARB June 26,1996) (“Under 28 U.S.C. § 144, a judge

is presumed to be impartial, and a substantial burden is

imposed on the requesting party to prove otherwise.”).

The Administrative Review Board (“ARB”) recently

adopted the following rationale for when disqualification

is or is not warranted:

[Rjecusal is appropriate when a party

demonstrates that the ALJ “has a personal

bias or prejudice either against him or in favor

of any adverse party... or that his impartiality

might reasonably be questioned...or that he

had a personal bias or prejudice concerning a

party.” Billings, slip op. at 4. “Absent specific

allegations of personal bias or prejudice,

neither prior adverse rulings of a judge nor his

participation in a prior proceeding are sufficient

for recusal.” Id.

26a

Appendix E

“The ARB generally presumes that an

ALJ is unbiased unless a party alleging bias

can support that allegation; and bias generally

cannot be shown without proof of an extra­

judicial source of bias.” Matthews v. Ametek,

Inc., ARB No. 11-036, ALJ No. 2009-SOX-026,

slip op. at 3 (ARB May 31,2012). “Unfavorable

rulings and possible legal errors in an ALJ’s

orders generally are insufficient to prove bias.”

Matthews, slip op. at 3 (quoting Powers v. Paper,

Allied Indus., Chem. & Energy Workers Int’l

Union, ARB No. 04-111, ALJ No. 2004AIR-019,

slip op. at 17 (ARB Aug. 31. 2007)).

Vudhamari v. Advent Global Solutions, ARB Case No.

2021-0018, ALJ Case No. 2018-LCA-00022 (April 26,

2021).

Likewise, unsupported speculation regarding bias or

partiality is insufficient to warrant judicial recusal. Talley

v. Tyer,_F.Supp.3d__, 2023 LEXIS 129 (D. Mass. Jan. 3,

2023); see also Ndoromo v. Barr, 486 F.Supp.3d 388,394

(D.D.C. 2020) (“A party moving for recusal pursuant to

Section 455(b) must likewise demonstrate ‘actual bias or

prejudice based upon an extrajudicial source.’”). In short,

given this issue was not raised in the prior matter and

Complainant has provided no evidence to support his very

serious contentions, the Tribunal finds such allegations

meritless.

Here, Complainant expresses concern that the

undersigned, rather than an ALJ from a different

office, was assigned the current case, his second before

27a

Appendix E

the Tribunal. The undersigned had nothing to do with

assigning this case to me for decision. That assignment

occurred in the ordinary course of business.4 From the

motion and other filings, the Tribunal can glean that

Complainant is concerned about the Tribunal’s prior

rulings. But he has articulated no reasonable basis for

the undersigned’s disqualification under 29 C.F.R. § 18.16.

“Federal judges are obligated not to recuse themselves

when there is no reason to question their impartiality just

as they are obligated to recuse themselves when there

is a reason.” New York City Housing Develop. Corp. v.

Hart, 796 F.2d 976, 980 (7th Cir. 1986); Arkansas State

Conference NAACP v. Arkansas Board ofApportionment,

578 F.Supp.3d 1011,1016 (E.D. Ark. 2022), citing Adams

v. Rivera, No. 11-3021,2011WL 3555665 at *1 (W.D. Ark.

Aug. 11,2011), quoting Laird v. Tatum, 409 U.S. 824,837,

93 S.Ct. 7,34 L.Ed.2d 50 (1972). It is for this reason that

mere allegations, without supporting evidence, is required

for this type of motion.

Complainant alleges that the undersigned “has

repeatedly dismissed complaints where the complainant

has not appropriately named a covered employer under

the AIR 21 statute.” Mot. at 6. However, Complainant

has failed to cite to an instance where this was the case.

Complainant further alleges that the undersigned

“is generally hesitant to accept blacklisting in complaints

already investigated.” Mot. at 3. Yet again, he provides

no evidence to support this claim. The Tribunal can

4. Within OAL J, there is no geographic region assigned to its

district offices for whistleblower cases.

28a

Appendix E

represent that when blacklisting has been raised by a

party, the undersigned has addressed it. See, e.g., Reed v.

American Airlines, ALJ Case No. 2020-AIR-00001 (Sept.

22, 2020), affd ARB Case No. 2021-0044 (Dec. 16, 2021),

pet. rev. denied, 2023 U.S. App. LEXIS 15014 (7th Cir.

June 15, 2023); Bell v. Bald Mtn. Air Service, ALJ Case

No. 2016-AIR-00016 (Oct. 10,2018)(settled after appeal to

the ARB); Carnahan v. Harris Aircraft Svcs., ALJ Case

No. 2016-AIR-00025 (Dec. 12,2017); and Kreb, supra.

Complainant also objects to the undersigned because

the “double-protections” afforded him by virtue of his

appointment violates Article II of the Constitution. For the

reasons set forth below, the Tribunal does not find this a

basis for recusal. Complainant cites to Free Enter. Fund

v. Public Co. Accounting Oversight Bd. 561 U.S. 477,491

(2010) as support for its position. The Supreme Court has

found that ALJs are “inferior officers” and thus subject

to the appointments clause. Lucia v. SEC, 585 U.S.___,

138 S. Ct. 2044 (2018). However, even prior to the issuance

of that decision, on December 21, 2017, the Secretary of

Labor ratified the undersigned’s initial 2014 appointment

as an ALJ.6 Following Lucia, on September 5, 2018, the

undersigned was duly readministered his oath of office.

Actions to remove an ALJ from office, as well as

lesser forms of discipline, are governed by 5 U.S.C.

§ 7521. However, the only court to squarely address this 5. A copy of this document can be found at www.dol.gov/

sites/dolgov/files/OALJ/PUBLIC/FOIA/Frequently_Requested_

Records/ALJ_Appointments/Memorandum_on_Ratification_of_

Appointment_of_USDOL_ALJs_(Dec_20_2017).pdf.

29a

Appendix E

issue as it pertains to DOL AL Js has upheld the statute’s

constitutionality. Decker Coal Co. v. Pehringer, 8 F.4th

1123,1137-38 (9th Cir. 2021). The ARB’s sister Board, the

Benefits Review Board, has similarly recently rejected the

contention that there is a constitutional violation in how

ALJs are ensured judicial independence. In Howard v.

Apogee Coal Co., BRB No. 20-0229 BLA, slip op. at 4 - 5

(Oct. 18,2022), that Board wrote:

[I]n rejecting a similar argument raised

regarding the removal provisions applicable

to Federal Deposit Insurance Corporation

(FDIC) ALJs, the United States Court of

Appeals for the Sixth Circuit noted that in

Free Enterprise Fund the Supreme Court

“took care to omit ALJs from the scope of its

holding.” Calcutt v. FDIC, 37 F.4th 293,319 (6th

Cir. 2022) (citing Free Enter. Fund, 561 U.S. at

507 n.10). The Sixth Circuit further explained

that a party challenging the constitutionality

of removal provisions must set forth how the

protections in question “specifically caused an

agency action in order to be entitled to judicial

invalidation of that action.” Id. (citing Collins

v. Yellen, 141 S. Ct. 1761, 1789 (2021)). Vague,

generalized allegations of harm, including

the “possibility” that the agency “would have

taken different actions” had the AL J not been

“unconstitutionally shielded from removal,” are

insufficient to establish necessary harm. Id. at

315-16. Employer in this case has not alleged

it suffered any harm due to the AL J’s removal

protections.

30a

Appendix E

Nor do Seila Law or Arthrex support

Employer’s argument. In Seila Law, the

Supreme Court held that limitations on removal

of the Director of the Consumer Financial

Protection Bureau (CFPB) infringed upon the

President’s authority to oversee the Executive

Branch because the CFPB was an “independent

agency led by a single Director and vested with

significant executive power.” 140 S. Ct. at 2201.

It did not address ALJs. Finally, in Arthrex, the

Supreme Court vacated the Federal Circuit’s

judgment. 141 S. Ct. at 1970. The Court

explained “the unreviewable authority wielded

by [Administrative Patent Judges] during

inter partes review is incompatible with their

appointment by the Secretary to an inferior

office.” Id. (emphasis added). In contrast, DOL

ALJs’ decisions are subject to further executive

agency review by this Board.

Here, Complainant has similarly not explained how these

authorities would apply to a DOL AL J let alone undermine

the undersigned’s ability to hear and decide this case. In

short, Complainant has failed to establish that the removal

provision contained in 5 U.S.C. § 7521 is unconstitutional.

Thus, to the extent the Tribunal has the authority to

even decide constitutional issue, it finds that the double­

protection provisions do not violate the principle of the

separation of powers.

Finally, Complainant asserts that 28 U.S.C. § 455which applies to judicial proceedings-should be the

31a

Appendix E

Tribunal’s guide to disqualify himself. This statute does

not apply here because these are administrative, not

judicial, proceedings. Further, the undersigned is not

an Article III judge, nor appointed nor supervised by

an Article III judge. Unlike Article III judges, ALJs

are beholden to the standards of the Administrative

Procedure Act (“APA”). This notwithstanding and even

assuming 28 U.S.C. § 455 should apply in this case,

Complainant still has failed to establish grounds for

disqualification. Section 455 provides that disqualification

of a judge is appropriate when the judge is a party to the

proceeding, has a relative who is a party, has personal

bias against a party, has personal knowledge of disputed

facts, has served as counsel on the case, has a personal (or

family) financial interest in the outcome, or has served in

a governmental position and expressed an adverse opinion

as counsel, an advisor, or a material witness on the merits

of the case. None of those scenarios exist here.6

In short, Complainant has provided no persuasive

reason for the Tribunal to recuse itself. Therefore, the

Complainant’s Motion is DENIED.

SO ORDERED.

6. The undersigned is not a party to the proceedings, has no

relative who is a party, has no personal bias against a party, has no

personal knowledge of disputed facts, has not served as counsel on

the case, neither he nor his family has a personal financial interest

in the outcome, has not served in a government position where the

undersigned has express an adverse opinion as counsel, advisor, or

material witness in this case.

32a

Appendix E

SCOTT R. MORRIS

Administrative Law Judge

Cherry Hill, New Jersey-District Office

Digitally signed by Scott R. Morris

DN: CN=Scott R. Morris,

OU=Administrative Law Judge, 0=US

DOL Office of Administrative Law

Judges, L=CHERRY HILL, S=NJ, C=US

Location: Washington DC

Digitally signed by Donna M. Broome

DN: CN=Donna M. Broome, OU=Paralegal Specialist,

0=US DOL Office of Administrative Law Judges,

L=CHERRY HILL, S=NJ, C=US

Location: Washington DC

33a

APPENDIX F — ORDER DENYING REHEARING

EN BANC OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED JANUARY 29, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-10758

ROBERT KREB

Plaintiff-Appellant,

versus

INTEGRA AVIATION, L.L.C, DOING BUSINESS AS

APOLLO MED FLIGHT; APOLLO MED FLIGHT,

L.L.C.; PANAVIA AIR TAXI, L.L.C., DOING

BUSINESS AS HAVEN AERO, L.L.C.; HAVEN

AERO, L.L.C.; FLIGHT MECHANIX, L.L.C.; YOUNG

FIRM, P.C.; LEE MCCAMMON, CORPORATE

OFFICER OF APOLLO; THOMAS L. KLASSEN,

DIRECTOR OF OPERATIONS; JOSEPH H. BELSHA,

III, CHIEF PILOT; WHITNEY SMITH, VICE

PRESIDENT OF HUMAN RESOURCES; TRAVIS

LAMANCE, DIRECTOR OF MAINTENANCE;

JEREMI K. YOUNG; SECRETARY, UNITED

STATES DEPARTMENT OF LABOR,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:23-CV-88

34a

Appendix F

ON PETITION FOR REHEARING EN BANC

Before Smith, Higginson, and Engelhardt, Circuit

Judges.

Per Curiam:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc

(Fed. R. App. P. 35 and 5th Cir. R. 35), the petition for

rehearing en banc is DENIED.

Additional material

from this filing is

available in the

Clerk's Office.