Kreb v. Integra Aviation, LLC (agency decision, March 27, 2024)

Plain-English summary

Robert Kreb sought interlocutory review of an administrative judge's rulings on adding parties and discovery in his AIR21 whistleblower case. The administrative judge later dismissed the complaint with prejudice, and Kreb filed a separate petition asking the Board to review that final dismissal and the full administrative record. Because that later petition encompassed the issues in the interlocutory request, the Board found the interlocutory appeal moot. It denied the petition and dismissed ARB No. 2024-0023.

Decision snapshot

• Cited authority: 49 U.S.C. § 42121
• Outcome: Interlocutory petition denied and ARB No. 2024-0023 dismissed as moot.
• Key point: A later petition for review of the final dismissal can render an earlier interlocutory appeal moot when it encompasses the same issues.

Full text (DOL official public release)

    U.S. Department of Labor          Administrative Review Board
                                      200 Constitution Ave. NW
                                      Washington, DC 20210-0001

    IN THE MATTER OF:


    ROBERT KREB,                                  ARB CASE NO. 2024-0023

                COMPLAINANT,                      ALJ CASE NO. 2023-AIR-00008
                                                  ALJ SCOTT R. MORRIS
         v.
                                                  DATE: March 27, 2024
    INTEGRA AVIATION, LLC D/B/A
    APOLLO MEDFLIGHT, LLC,

                RESPONDENT.


Before HARTHILL, Chief Administrative Appeals Judge, and WARREN,
Administrative Appeals Judge


        ORDER DENYING PETITION FOR INTERLOCUTORY REVIEW

WARREN, Administrative Appeals Judge:

      This case arises under the employee protection provision of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).1 On
February 5, 2024, Robert Kreb (Complainant) filed a petition before the
Administrative Review Board (Board) seeking interlocutory review of the
Administrative Law Judge’s (ALJ) January 24, 2024 Omnibus Order: (1) Denying
Complainant’s Request to Join Additional Parties to this Complaint; and (2)
Denying his “Joint Motion to Stay and Amend Discovery Order and to Compel
Counsel to Provide Subpoena Evidence.”2

      Subsequent to Complainant’s petition for interlocutory review, on February
16, 2024, the ALJ issued a Decision and Order Dismissing Complaint (D. & O.) with



1      49 U.S.C. § 42121. AIR 21’s implementing regulations are found at 29 C.F.R. Part
1979 (2023).
2       Complainant Robert Kreb’s Petition for Interlocutory Review at 1.
                                            2


prejudice.3 The ALJ found that Complainant repeatedly failed to comply with
discovery orders despite being “warned on at least five separate occasions that he
was required to comply with discovery.”4 On March 1, 2024, Complainant filed a
petition for review “of the full administrative record of the whistleblower retaliation
investigation” with the Board, which encompasses the issues Complainant raised in
his petition for interlocutory review.5 The Board assigned Complainant’s petition for
review case number ARB No. 2024-0027 and accepted it for review on March 26,
2024.

       The Board’s delegated authority includes the discretionary consideration and
disposition of interlocutory appeals “in exceptional circumstances, provided such
review is not prohibited by statute.”6 Here, the ALJ’s dismissal of Complainant’s
complaint and Complainant’s subsequent petition for review of that case to the
Board has rendered this interlocutory appeal moot.7 Therefore, Complainant’s
petition for interlocutory review is DENIED and ARB No. 2024-0023 is
DISMISSED.

      SO ORDERED.




                                         ____________________________________
                                         IVEY S. WARREN
                                         Administrative Appeals Judge



                                         ____________________________________
                                         SUSAN HARTHILL
                                         Chief Administrative Appeals Judge




3     D. & O. at 1, 11-12.
4     Id. at 10.
5     Complainant’s Petition for Review at 1.
6     Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).
7       Powers v. Pinnacle Airlines, Inc., ARB No. 2004-0066, ALJ No. 2004-AIR-00006, slip
op. at 1-2 (ARB July 24, 2004) (dismissing interlocutory appeal as moot because the ALJ
dismissed the case and the complainant appealed to the Board on the merits).