U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
USDOL/OALJ REPORTER
PAGE 1
In the Matter of:
DARRYL THOMPSON,
ARB CASE NO. 06-061
COMPLAINANT,
ALJ CASE NO. 05-AIR-32
v.
DATE: June 30, 2006
BAA INDIANAPOLIS, LLC,
RESPONDENT.
BEFORE:
THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
Kim F. Ebert, Esq. and Kristin B. Keltner, Esq., Ogletree, Deakins, Nash, Smoak
& Stuart, P.C.
FINAL DECISION AND ORDER DISMISSING
INTERLOCUTORY APPEAL
BACKGROUND
The Complainant, Darryl Thompson, has filed a complaint alleging that the
Respondent, BAA Indianapolis LLC, has retaliated against him in violation of the
whistleblower protection provisions of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR 21).1 The complaint was referred to a Department
of Labor Administrative Law Judge (ALJ) for hearing and initial administrative
adjudication.
Under contract with the Indianapolis Airport Authority, BAAs primary functions
include maintaining required Federal Aviation Authority certifications for six airport
1
49 U.S.C.A. § 42121(a) (West 2005 Supp.).
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facilities that the Indianapolis Airport Authority owns, increasing terminal revenue
through management of the airports parking and concessions, and providing
administrative support. On November 16, 2005, BAA filed a Motion for Summary
Judgment with the ALJ alleging that it is not subject to AIR 21s whistleblower
protection provisions. In particular, BAA argued that it is not an air carrier and does not
contract or subcontract with any air carrier to provide safety sensitive functions.2
The ALJ denied BAAs motion. The ALJ concluded:
I find that BAA, as an entity charged with maintaining the
safety and security of the landing areas, indirectly provides
air transportation, and thus falls squarely within the
definition of air carrier in AIR 21. . . . [W]hat
[legislative] history there is clearly evinces the intent of
Congress to insure that persons who are in a position to
observe safety violations or concerns are free to report
those concerns to the appropriate authorities without fear of
jeopardizing their livelihood.[3]
In response, BAA filed a Motion to Certify Interlocutory Order for Appeal and to Stay
Proceedings During Pendency of Appeal. The ALJ granted BAAs Motion and BAA
2
Air 21 provides in pertinent part:
(a) Discrimination Against Airline Employees.--No air carrier
or contractor or subcontractor of an air carrier may discharge
an employee or otherwise discriminate against an employee
with respect to compensation, terms, conditions, or privileges
of employment because the employee (or any person acting
pursuant to a request of the employee)[engaged in protected
activity].
49 U.S.C.A. § 42121(a) (West 2005 Supp.). AIR 21 regulations define air carrier and
contractor:
Air carrier means a citizen of the United States undertaking
by any means, directly or indirectly, to provide air
transportation.
Contractor means a company that performs safety-sensitive
functions by contract for an air carrier.
29 C.F.R. § 1979.101 (2005).
3
Order Denying Motion for Summary Judgment and Scheduling Hearing (O. D. M.) at
3.
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filed a petition for interlocutory review with the Administrative Review Board.4 The
Board issued an order on February 17, 2006, permitting Thompson to respond to BAAs
motion but he chose not to respond. Accordingly, we must decide whether to accept
BAAs appeal. Because BAA has failed to provide a convincing reason to depart from
the Boards well-established policy against accepting piecemeal appeals, we will not
accept its interlocutory appeal.
DISCUSSION
The Secretary and the Board have held many times that interlocutory appeals are
generally disfavored and that there is a strong policy against piecemeal appeals.5 In
Greene v. EPA Chief Susan Biro, United States Envtl. Prot. Agency,6 the Board examined
two principles underlying the Boards policy against accepting appeals from interlocutory
orders. First, the Board addressed an administrative law judges authority to request the
Board to review an interlocutory order that turns on an unsettled question of law. The
Board explained that an administrative law judge may resort to procedural rules
applicable to the Federal district courts in circumstances that the Part 18 Rules of Practice
and Procedure for Department of Labor Administrative Law Judges do not specifically
address.7 Under limited circumstances, federal district court judges are authorized to
certify questions for review by Federal appellate courts at an interlocutory stage of a civil
proceeding.8 An administrative law judges certification of such a question is a relevant,
4
The Secretary of Labor has delegated her authority to issue final administrative
decisions in cases arising under AIR 21 to the Board. Secretarys Order 1-2002 (Delegation
of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272
(Oct. 17, 2002). The Secretarys delegated authority to the Board includes, discretionary
authority to review interlocutory rulings in exceptional circumstances, provided such review
is not prohibited by statute. Id. at 64,273.
5
See e.g., Welch v. Cardinal Bankshares Corp., ARB No. 04-054, ALJ 03-SOX-15
(ARB May 13, 2004); Hibler v. Exelon Generation Co., LLC, ARB No. 03-106, ALJ No.
2003-ERA-9 (Feb. 26, 2004); Amato v. Assured Transp. and Delivery, Inc., ARB No. 98-167,
ALJ No. 98-TSC-6 (ARB Jan. 31, 2000); Hasan v. Commonwealth Edison Co., ARB No. 99-
097; ALJ No. 99-ERA-17 (ARB Sept. 16, 1999); Carter v. B & W Nuclear Technologies,
Inc., ALJ No. 94- ERA-13 (Secy Sept. 28, 1994).
6
ARB No. 02-050, ALJ No. 02-SWD-1 (Sept. 18, 2002).
7
Greene, slip op. at 2-3 (citing Plumley v. Fed. Bureau of Prisons, No. 86-CAA-6
(Secy Apr. 29, 1987)). See also 29 C.F.R. §§ 18.1(a), 18.29(a),
8
28 U.S.C.A. § 1292(b) (West 1993). See Plumley, slip op. at 2.
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but not the determinative, factor in the Boards decision whether to accept the
interlocutory appeal for review.9
The second principle that the Board discussed in Greene is the final decision
requirement that applies to the Federal appellate courts.10 The Boards general rule
against accepting appeals from interlocutory orders parallels the standard that federal
courts have developed in interpreting section 1291. Similar to the federal appellate
courts, the Board applies the finality requirement in the interest of combin[ing] in one
review all stages of the proceeding that effectively may be reviewed and corrected if and
when the administrative law judge issues a decision on the merits of the case.11 The
Board also applies the collateral order exception to finality and will hear appeals from
orders rendered in the course of the proceeding before the administrative law judge that
meet certain criteria. Specifically, the collateral order exception permits the review of
orders that conclusively determine the disputed question, resolve an important issue
completely separate from the merits of the action, and [are] effectively unreviewable on
appeal from a final judgment.12
Threshold jurisdictional issue or issue of SOX coverage
In determining whether to accept an interlocutory appeal, we strictly construe the
collateral appeal exception to avoid the serious hazard that piecemeal appeals will
burden the efficacious administration of justice and unnecessarily protract litigation.13
In support of its petition for review, BAA argues that its appeal presents a
threshold jurisdictional issue14 that is particularly well-suited for interlocutory
appeal.15 BAA is incorrect. BAA seeks interlocutory review of the issue whether BAA
9
See Ford v. Northwest Airlines, ARB No. 03-014, ALJ No. 02-AIR-21, slip op. at 2-3
(ARB Jan. 24, 2003); Greene, slip op. at 2-3.
10
See 28 U.S.C.A. § 1291 (West 2001).
11
See Greene, slip op. at 4 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949)).
12
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see Greene, slip op. at 4.
13
Corrugated Container Antitrust Litig. Steering Comm. v. Mead Corp., 614 F.2d 958,
961 n.2 (5th Cir. 1980), quoting Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1094
(5th Cir. 1977).
14
Respondent BAA Indianapolis, LLCs Petition to the Administrative Review Board
for Permission to Appeal (Pet.) at 2.
15
Id. at 8.
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is an air carrier or contractor or subcontractor of an air carrier.16 In asserting that this is
a threshold jurisdictional issue, BAA has confused the Labor Departments subject matter
jurisdiction over a whistleblower complaint with the wholly separate question whether
BAA is a covered employer under AIR 21.17 As we recognized in Sasse, A court is
said to have jurisdiction, in the sense that its erroneous action is voidable only, not void,
when the parties are properly before it, the proceeding is of a kind or class which the
court is authorized to adjudicate, and the claim set forth in the paper writing invoking the
courts action is not obviously frivolous.18 Moreover,
[j]urisdiction . . . is not defeated as respondents seem to
contend, by the possibility that the averments might fail to
state a cause of action on which petitioners could actually
recover. For it is well settled that the failure to state a
proper cause of action calls for a judgment on the merits
and not for a dismissal for want of jurisdiction. Whether
the complaint states a cause of action on which relief could
be granted is a question of law and just as issues of fact it
must be decided after and not before the court has assumed
jurisdiction over the controversy. If the court does later
exercise its jurisdiction to determine that the allegations in
the complaint do not state a ground for relief, then
dismissal of the case would be on the merits, not for want
of jurisdiction.[19]
By filing a complaint alleging a violation of AIR 21s whistleblower protection
provisions, Thompson properly invoked the Department of Labors jurisdiction to
adjudicate the complaint. Furthermore, BAA does not contend that Thompsons
arguments are frivolous or without color or merit. In fact, BAA admitted that
reasonable minds could substantially differ as to whether the definition of air carrier in
49 U.S.C. § 40102(2) captures airports . . . .20 Thus, even if we should ultimately agree
with BAA that it is not an air carrier or contractor or subcontractor of an air carrier
16
49 U.S.C.A. § 42121(a).
17
Accord Sasse v. United States Dept of Justice, ARB No. 99-053, ALJ No. 98-CAA-
7, slip op. at 3-4(ARB Aug. 31, 2000). See also Ramos v. Universal Dredging Corp., 653
F.2d 1353, 1355-1359 (9th Cir. 1981); OFCCP v. Keebler Co., ARB No. 97-127, ALJ No.
87-OFC-20, slip op. at 10 (ARB Dec. 21, 1999).
18
Slip op. at 3, citing West Coast Exploration Co. v. McKay, 213 F.2d 582, 591 (D.C.
Cir.).
19
Bell v. Hood, 327 U.S. 678, 682 (1946).
20
Pet. at 10.
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such finding would not divest the Department of Labor of jurisdiction to hear and decide
the case.
Collateral order criterion reviewability on appeal
BAA, in its attempt to meet the collateral order exception, argues that the issue
whether it falls within SOXs coverage will be effectively unreviewable on appeal.21
Again, BAA is incorrect. Should Thompson prevail before the ALJ, the question whether
BAA is a covered employer will be fully reviewable on appeal. Apparently recognizing
this weakness in its argument, BAA turns this criterion on its head and argues not that the
issue will be effectively unreviewable if it loses before the ALJ, but instead, that it will be
effectively unreviewable if it wins. BAA argues, if the opportunity to appeal is denied
now and BAA later succeeds on the merits, it will be satisfied with the result and will
not exercise its opportunity to appeal that final order.22 Even assuming, as has
BAA, that it would have standing to appeal the ALJs recommended decision should it
prevail,23 choosing not to appeal an issue would not render that issue unreviewable. As
the Supreme Court has repeatedly held, the general rule [is] that an order is effectively
unreviewable only where the order at issue involves an asserted right the legal and
practical value of which would be destroyed if it were not vindicated before trial.24 The
assumption underlying BAAs argument, that BAA could appeal the ALJs coverage
decision should Thompson prevail and obtain a meaningful decision that would fully
protect its rights, establishes that the legal and practical value of such rights will not be
destroyed if not vindicated before trial. Thus, we practice appellate restraint to assure
that if, and when, the coverage question at issue here is presented to the Board for
disposition, it is presented in an appeal in which all parties have an incentive to fully and
vigorously litigate it and the Boards disposition of the issue is necessary to the resolution
of the case.
21
Id. at 13.
22
Pet. at 13 (emphasis added).
23
Asking the Board to decide an issue that could not affect the outcome of the case
would, in essence, be asking the Board for an advisory opinion, but the Board has a well-
established policy against issuing such opinions. See e.g., Agee v. ABF Freight Sys., Inc.,
ARB No. 04-182, ALJ No. 04-STA-40 (ARB Dec. 12, 2005); Edmonds v. Tennessee Valley
Auth., ARB No. 05-02, ALJ No. 04-CAA-15 (ARB July 22, 2005); Migliore v. Rhode Island
Dept of Envtl Mgmt., ARB No. 99-118; ALJ Nos. 98-SWD-3, 99-SWD-1, 2 (ARB July 11,
2003); Williams v. Lockheed Martin Energy Sys., Inc., ARB No. 98-059, ALJ No. 95-CAA-
10 (ARB Jan. 31, 2001).
24
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 498-499 (May 22, 1989)(internal
quotations and citations omitted).
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BAA has not satisfied the collateral order exception to the finality rule nor has it
presented the Board with any reason to depart from its well-established precedent
eschewing interlocutory review. Accordingly, in the interest of the efficient
administration of justice and to forestall unnecessarily prolonged litigation, we DENY
BAAs petition for interlocutory review and REMAND the case to the ALJ for further
adjudication.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge