Berg v. Nicholas Services, LLC (agency decision, January 31, 2025)

Plain-English summary

Former pilot Gregory Berg brought an AIR21 whistleblower case against Nicholas Air and Corr Flight S. The administrative judge denied subpoenas for five employee witnesses but ordered the companies to produce them as people within their control. The companies sought interlocutory review, arguing that the order exceeded statutory authority and rested on a facially unconstitutional regulation. The Board distinguished precedent about subpoenas to third parties because the regulation here expressly authorizes judges to compel testimony from people within a respondent's control. It exercised its discretion to reject piecemeal review, explaining that a possible later appeal and remand did not create exceptional circumstances. The Board denied the petition and returned the case to the administrative judge.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. § 1979.107(d); 29 C.F.R. § 18.12(b)(3); 28 U.S.C. § 1292(b)
• Outcome: Interlocutory petition denied; AIR21 case remanded for continued administrative proceedings.
• Key point: A possible later appeal over an employee-witness order does not by itself justify exceptional interlocutory review.

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:


GREGORY BERG,                                  ARB CASE NO. 2025-0027

            COMPLAINANT,                       ALJ CASE NO. 2023-AIR-00012
                                               DISTRICT CHIEF
     v.                                        ALJ PAUL C. JOHNSON, JR.

NICHOLAS SERVICES, LLC,                        DATE: January 31, 2025
d/b/a NICHOLAS AIR, and
CORR FLIGHT S, INC.,

            RESPONDENTS.

Before WARREN, Acting Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge

    DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

PER CURIAM:

  This case arises under the employee protection provisions of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and its implementing regulations.1 On December 30, 2024, Nicholas Services, LLC, d/b/a Nicholas Air and Coor Flights, Inc. (Respondents) filed a Petition for Interlocutory Appeal with the Administrative Review Board (Board) to review an Administrative Law Judge’s (ALJ) order to produce employee witnesses. For the following reasons, we deny the Petition.

  Complainant Gregory Berg is a former pilot for Respondents.2 On November

7, 2024, he filed a motion with the ALJ to issue subpoenas to five of Respondents’

1 49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2024). 2 Order Granting Motion to Certify Interlocutory Appeal and Staying Proceedings at 3 n.2. 2

employees to appear to testify at a hearing scheduled for November 18, 2024.3 On November 8, 2024, the ALJ denied Complainant’s subpoena request, finding that the AIR21 did not provide subpoena authority.4 The ALJ, however, ordered Respondents to produce employee witnesses pursuant to 29 C.F.R. § 1979.107(d) and 29 C.F.R. § 18.12(b)(3), which, he found, provide ALJs with the authority to compel witnesses within a party’s control.5

   Respondents filed a motion to certify the issue for interlocutory review.6

On December 19, 2024, the ALJ issued an Order Granting Motion to Certify Interlocutory Appeal and Staying Proceedings.7 On December 30, 2024, Respondents filed an interlocutory appeal with the Board regarding whether an ALJ has the authority to compel witnesses within a party’s control to testify.8

  The Board’s delegated authority includes the consideration of interlocutory

appeals “in exceptional circumstances,” provided “such review is not prohibited by statute.”9 The Board has held many times that “interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals.”10

   When determining whether to accept an interlocutory appeal, the Board

follows the procedures provided in 28 U.S.C. § 1292(b).11 Interlocutory review requires two separate actions: (1) the ALJ must certify that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” and (2) when those elements are

3 Order Denying Subpoenas/Order to Produce Employee Witnesses at 1. 4 Id. 5 Id. 6 Order Granting Motion to Certify Interlocutory Appeal and Staying Proceedings at 1. 7 Id. 8 Respondents’ (Resp.) Petition for Interlocutory Appeal at 1.

9 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 10 Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049, slip op. at 2 (ARB Sept. 11, 2012) (citations omitted). 11 Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX-00012, slip op. at 3-4 (ARB Jan. 28, 2020) (citations omitted). 3

met, the Board then exercises its unfettered discretion in deciding whether to accept or reject the petition for review.12

   Respondents request that the Board grant its petition and contend that, as

required for interlocutory review, there is a controlling question of law with substantial ground for difference of opinion because Fagan v. Dep’t of the Navy has called into question whether ALJs still have the authority to compel the testimony of witnesses under a party’s control.13 They further contend that accepting the appeal will streamline the litigation because the losing party below will likely appeal the issue after the ALJ renders his final decision, and if the ARB agrees, it could result in a remand for further proceedings.14

   In Fagan, the Board found that neither the Comprehensive Environmental

Response Compensation and Liability Act, the Safe Drinking Water Act, nor their implementing regulations provide ALJs with the express authority to issue subpoenas to third parties.15 But it did not address the separate issue raised here regarding an ALJ’s authority to compel the testimony of employee witnesses. The class of witnesses -- and the corresponding legal authority -- thus materially differ in the two cases. And unlike the missing authority in Fagan, even Respondents do not dispute that the plain language of 29 C.F.R. § 18.12(b)(3) expressly authorizes ALJs to “compel the testimony of persons within a respondent’s control.”16 Respondents instead contend that the regulation itself is on its face unconstitutional because the power to compel employee witnesses “exceeds the power that Congress granted in AIR21 and in the [Administrative Procedure Act].”17

   As a matter of discretion, we find those arguments do not justify delaying the

hearing below. Even assuming Fagan could call into question settled law regarding a different class of witnesses subject to different statutory and regulatory provisions, and even further assuming the ARB would then have the delegated authority to rule on the facial constitutionality of a regulation, it still would not create the “exceptional circumstances” warranting the “piecemeal” appeal of this matter;18 the simple fact that the ALJ’s post-hearing decision could create an

12 Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip op. at 6 (ARB Apr. 6, 2023) (citations omitted). 13 Resp. Petition for Interlocutory Appeal at 4. 14 Id. at 7. 15 Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip op. at 16 (ARB Feb. 28, 2024). 16 Resp. Petition for Interlocutory Appeal at 4. 17 Id. 18 Gunther, ARB Nos. 2012-0097, -0099, slip op. at 2. 4

appealable issue subject to remand does not qualify as a “rare” exception to the finality rule.19

  Accordingly, we DENY Respondents’ Petition for Interlocutory Review and

remand to the Office of Administrative Law Judges to continue the remaining agency proceedings.

   SO ORDERED.




                               ____________________________________
                               IVEY S. WARREN
                               Acting Chief Administrative Appeals Judge




                               ____________________________________
                               JONATHAN ROLFE
                               Administrative Appeals Judge

19 Fujitsu Ltd. v. Tellabs Inc., 539 F. App’x 1005, 1006 (Fed. Cir. 2013) (Both the legislative history of Section 1292(b) and the case law emphasize that appellate courts should only grant interlocutory appeals under rare circumstances) (citations omitted); see also Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 69 (5th Cir. 1983) (“Section 1292(b) appeals are exceptional.”).