ARB CASE NO. 03-074
ALJ CASE NO. 02-AIR-16
DATE: August 26, 2004
In the Matter of:
JAN SVENDSEN,
COMPLAINANT,
v.
AIR METHODS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Jan Svendsen, pro se,Moline, Illinois
For the Respondent:
Elizabeth J. McNamee, Esq., Davis, Graham & Stubbs LLP, Denver, Colorado
FINAL DECISION AND ORDER
Jan Svendsen filed a complaint under Section 519, the employee protection provision, of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C.A. § 42121 (West 2003), alleging that Air Methods (AM) had terminated his employment as an air ambulance pilot on November 12, 2001, in violation of AIR21. Specifically, Svendsen alleged that AM terminated his employment because he had reported an air safety hazard to authorities on November 3, 2001. A Department of Labor Administrative Law Judge (ALJ) heard the case and in a February 26, 2003 Recommended Decision and Order (R. D. & O.) found that Svendsen had failed to establish that air safety-related activity protected by AIR21 had contributed to AM's termination decision.1 Svendsen petitioned this Board for review and both parties filed briefs in support of their respective positions.2 For the reasons set forth below, we adopt the ALJ's recommendation to deny the complaint.
[Page 2]
M. CYNTHIA DOUGLASS Chief Administrative Appeals Judge
[ENDNOTES]
1 Although the ALJ signed the R. D. & O. on February 26, 2003, the Service Sheet indicates that the decision was issued on March 3, 2003. Pursuant to the interim final regulations implementing AIR 21 at 29 C.F.R. Part 1979 that were in effect from April 1, 2002, until the final regulations became effective March 21, 2003, "issuance of the ALJ's decision" triggered the period for appealing that decision to the Board. 29 C.F.R. § 1979.110 (2002); see Notice of final rule, 29 C.F.R. Part 1979, 68 Fed. Reg. 14,100 (Mar. 21, 2003).
2 We reject AM's contention that Svendsen's petition for review is inadequate because 29 C.F.R. § 1979.110(a) (2003) requires that the petition "specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily shall be deemed to have been waived by the parties." AM relies on a provision contained in the final regulations implementing Section 519 of AIR21. Air Methods' June 29, 2004 Reply Brief at 4. That provision did not become effective until March 21, 2003, the date the AIR21 final regulations were published in the Federal Register. Notice of final rule, 68 Fed. Reg. at 14,105. The interim final regulations were in effect from April 1, 2002 until March 21, 2003, and thus were in effect when Svendsen's petition for review was filed on March 18, 2003. Notice of interim final rules, 67 Fed. Reg. 15,454 (Apr. 1, 2002); see 68 Fed. Reg. 14,100. Section 1979.110 of the interim final regulations did not set any requirements for the contents of a petition filed with the Board. Notice of interim final rules, 67 Fed. Reg. at 15,456; see 68 Fed. Reg. at 14,105. Acting pro se, Svendsen filed a petition on March 18, 2003, that identifies for appeal three issues that are key to the ALJ's recommended decision. Although the contentions advanced in Svendsen's two briefs focus primarily on Svendsen's view of the evidence and offer little legal argument assigning error to the ALJ's analysis, Svendsen has cited a number of issues for the Board's consideration in its review of the R. D. & O. Furthermore, consistent with our practice, we have construed Svendsen's pro se briefs regarding the merits of his complaint liberally, within the context of the standard of review applicable to this appeal. See Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 3 n.1 (ARB Feb. 28, 2003).
3See nn. 1,2 supra regarding the effective dates of the interim final and final regulations implementing AIR21.
4 The regulations implementing AIR21 whistleblower protections define "employee" as follows:
[A]n individual presently or formerly working for an air carrier or contractor or subcontractor of an air carrier, an individual applying to work for an air carrier or contractor or subcontractor of an air carrier, or an individual whose employment could be affected by an air carrier or contractor or subcontractor of an air carrier.
29 C.F.R. § 1979.101 (2002).
5 Activities protected by AIR21 are described in the implementing regulation as follows:
(1) Provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the air carrier or contractor or subcontractor of an air carrier or the Federal Government, information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under subtitle VII of title 49 of the United States Code or under any other law of the United States;
(2) Filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under subtitle VII of title 49 of the United States Code, or under any other law of the United States;
(3) Testified or is about to testify in such a proceeding; or
(4) Assisted or participated or is about to assist or participate in such a proceeding.
29 C.F.R. § 1979.102(b) (2002).
6 The text of Section 1979.109(a) that describes the parties' burdens and implements the AIR21 provisions at 49 U.S.C.A. § 42121(b)(iii), (iv) – the second and third sentences of Section 1979.109(a) – was not modified when the final AIR21 regulations replaced the interim final regulations on March 21, 2003. Notice of final rule, 29 C.F.R. Part 1979, 68 Fed. Reg. 14,100, 14,105 (Mar. 21, 2003).