Hall v. Eastern Panhandle Anesthesia Associates Inc. (agency decision, July 9, 2026)

Plain-English summary

Timothy Hall, an anesthesiologist for Eastern Panhandle Anesthesia Associates, alleged that the company and City Hospital retaliated against him for reporting safety concerns under AIR21. The ARB affirmed the ALJ's determination that the respondents were not covered entities under the pre-2020 version of AIR21. The Board held that the hospital and anesthesiology practice were not air carriers, indirect air carriers, or contractors or subcontractors of an air carrier providing safety-sensitive services. The Board explained that corporate affiliation with HealthNet Aeromedical Services, an air-ambulance provider, did not establish AIR21 coverage, and that providing medical services was not the same as providing air-safety services. The ARB therefore affirmed summary decision for the respondents.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. §§ 18.72(a), 1979.101, and 1979.110(a); and 14 C.F.R. §§ 120.105, 120.215, and 295.5(b)
• Outcome: The ARB affirmed summary decision for EPAA and BMC because they were not covered entities under the applicable version of AIR21.
• Key point: A healthcare entity's corporate relationship with an air-ambulance provider does not itself make the healthcare entity an air carrier or a contractor performing safety-sensitive aviation functions.

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:


TIMOTHY HALL,                                ARB CASE NO. 2025-0034

             COMPLAINANT,                    ALJ CASE NO. 2023-AIR-00024
                                             ALJ SEAN M. RAMALEY
       v.
                                             DATE: July 9, 2026
EASTERN PANHANDLE
ANESTHESIA ASSOCIATES
INC., (EPAA), and CITY
HOSPITAL, INC., d/b/a
BERKELEY MEDICAL CENTER
(BMC),

             RESPONDENTS.

Appearances:

For the Complainant:
      Dr. Timothy Hall; Pro Se; Hedgesville, West Virginia

For the Respondents:
      Travis F. Salisbury, Esq., and Brad D. Weiss, Esq.; Charapp & Weiss,
      PLLC; Reston, Virginia

Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge


                            DECISION AND ORDER

      This case arises under the employee protection provisions of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (AIR21 or the Act)
                                             2


and its implementing regulations.1 Complainant worked for Eastern Panhandle
Anesthesia Associates, Inc. (EPAA) as an anesthesiologist. EPAA operates under a
professional services agreement with City Hospital, Inc., d/b/a Berkeley Medical
Center (BMC).2 Both EPAA and BMC are Respondents in this case. On September
22, 2020, Complainant filed a whistleblower complaint against Respondents with
the Occupational Safety and Health Administration (OSHA) alleging that
Respondents violated the Act by retaliating against him for reporting safety
concerns. OSHA determined Respondents were not covered by the Act and
Complainant was not an employee under the Act. Complainant requested a hearing
before an Administrative Law Judge (ALJ). Before the ALJ, both Respondents filed
motions for summary decision arguing they are not covered under AIR21. The ALJ
granted Respondents’ motions. Complainant appealed the case to the
Administrative Review Board (ARB or Board). For the following reasons, we affirm
the ALJ’s decision.

                       JURISDICTION AND STANDARD OF REVIEW

      The Secretary of Labor has delegated to the ARB the authority to issue final
agency decisions on appeal of matters arising under AIR21 and its implementing
regulations at 29 C.F.R. Part 1979.3 Summary decision is permitted when “there is
no genuine dispute as to any material fact and the movant is entitled to decision as
a matter of law.”4 On appeal from summary decision, we review the record on the
whole in the light most favorable to the non-moving party.5


1        49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2025). In 2020, Congress modified the scope
of coverage under the Act by replacing the “air carrier or contractor or subcontractor”
language discussed below with “a holder of a certificate under section 44704 or 44705 of this
title, or a contractor, subcontractor, or supplier of such holder.” Consolidated
Appropriations Act, 2021, Pub. L. 116-260, Div. V, Title I, § 118, 134 Stat. 1182, 2337
(2020). However, the events at issue took place before that amendment, so all citations and
references to the Act herein are to the pre-2020 version of the statute.
2      Order Granting Respondents’ Motions for Summary Decision and Order of Dismissal
(D. & O.) at 1.
3      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); 29
C.F.R. §1979.110(a).
4      29 C.F.R. § 18.72(a).
5     Jahanbin v. Boeing Co., ARB No. 2024-0035, ALJ No. 2023-AIR-00023, slip op. at 4
(ARB Mar. 13, 2025) (citation omitted).
                                             3


                                       DISCUSSION

       Complainant worked for EPAA which provides professional anesthesiology
services at BMC under a professional services agreement.6 He was provided notice
of the termination of his employment on or about October 11, 2019.7 BMC is a part
of West Virginia University Health System (WVUHS), a parent healthcare group
that operates several hospitals.8 WVUHS is a partial owner of HealthNet
Aeromedical Services (HealthNet), which operates air ambulances between WVUHS
hospitals and other facilities.9 Complainant alleged that he was harassed and his
personal information was divulged in the workplace in 2019.10 Complainant also
claimed that a helicopter flown by HealthNet flew at low altitude over his house in
2018.11 Complainant stated these events were retaliation by BMC in violation of
AIR21.

      Both Respondents filed a motion for summary decision pursuant to 29 C.F.R.
§ 18.72, arguing that they were not covered under the Act and therefore
Complainant is not a covered employee.12 Granting the motions, the ALJ concluded
that neither Respondent was covered by the Act.13




6      D. & O. at 1.
7     Complainant’s Opening Brief (Comp. Br.) at 9. Complainant’s final day at
Respondent was February 8, 2020. Response Brief of Respondent City Hospital, Inc. d/b/a
Berkeley Medical Center in Opposition to Complainant’s Opening Brief at 3.
8      D. & O. at 5.
9      Id.
10     Id. at 1-2.
11     Id. at 2.
12     Id. at 1.
13      Id. at 7-8. Following the motions for summary decision, the ALJ concluded there was
no subject matter jurisdiction under the Act. Id. at 9. We note the issue is one of coverage
not subject matter jurisdiction. Congress assigned AIR21 disputes to the Secretary, and the
Secretary’s regulations place the hearing adjudication with the OALJ. Coverage disputes
like the one at issue are claims-processing matters, not subject matter jurisdiction. Walker
v. Transp. Refrigeration Servs., ARB No. 2025-0029, ALJ No. 2024-SOX-00043, slip op. at 6
(ARB Sept. 30, 2025) (citations omitted).
                                             4


1. Respondents Are Not Air Carriers

      Complainant devotes a large portion of his brief on appeal to the alleged
harassment he endured while employed at Respondent EPAA. Challenging the
ALJ’s conclusion on coverage, Complainant cites to the broad regulatory definition
of employee and the doctrine of joint employment, but this misses the mark if
Respondents are not covered entities under AIR21.14 AIR21 provides protection for
employees engaging in protected activity by providing the following prohibition:

              (a) 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)--

              (1) provided, caused to be provided, or is about to provide
              (with any knowledge of the employer) or cause to be
              provided to the employer or 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 this subtitle or any
              other law of the United States;15

      AIR21’s prohibition prohibits air carriers and contractors and
subcontractors of air carriers from retaliating on the basis of protected activity.
Those key terms are defined in Title 49:




14     Comp. Br. at 17, 23; 29 C.F.R. § 1979.101 (“Employee means an 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.”).
15     49 U.S.C. § 42121(a).
                                              5


              (2) “air carrier” means a citizen of the United
              States[16] undertaking by any means, directly or indirectly,
              to provide air transportation.17

              (5) “air   transportation”        means  foreign  air
              transportation, interstate air transportation, or the
              transportation of mail by aircraft.18

              (25) “interstate    air   transportation”     means   the
              transportation of passengers or property by aircraft as a
              common        carrier for compensation, or the
              transportation of mail by aircraft--. . . .19

       The key to AIR21’s prohibition at the time of the events in this case is “air
carrier” status, and the key to that definition is “providing air transportation.” “Air
carrier” status is a common-law concept derived from the quasi-public common-
carrier status.20 “Air carrier” status is found when entities hold themselves out to


16     Citizen is defined as:
              (A) an individual who is a citizen of the United States;
              (B) a partnership each of whose partners is an individual who is
              a citizen of the United States; or
              (C) a corporation or association organized under the laws of
              the United States or a State, the District of Columbia, or a
              territory or possession of the United States, of which the
              president and at least two-thirds of the board of directors and
              other managing officers are citizens of the United States, which
              is under the actual control of citizens of the United States, and
              in which at least 75 percent of the voting interest is owned or
              controlled by persons that are citizens of the United States.
Id. at § 40102(15).
17     Id. at § 40102(2) (emphasis added).
18     Id. at § 40102(5) (emphasis added).
19     Id. at § 40102(25) (emphasis added).
20     “The term ‘common carrier’ is borrowed from the common law and frequently
incorporated into federal statutes.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 763 (4th
Cir. 2018). The term generally means “[a] commercial enterprise that holds itself out to the
public as offering to transport freight or passengers for a fee.” Id. (citing Black’s Law
Dictionary (10th ed. 2014)).
                                                6


the public as providers of air transportation for hire.21 The Respondents here are
EPAA, Complainant’s anesthesiologist employer, and BMC, a hospital. Respondents
EPAA and BMC are not air carriers providing air transportation of persons or
property for compensation or providing transportation of mail. While an air-
ambulance service may be a covered employer under AIR21 as an “air carrier,”22
HealthNet, the air-ambulance provider, is not a respondent here.

        The statute’s definition “air carrier . . . undertaking [to provide air
transportation] . . . directly or indirectly” does not change the result. The ARB has
stated an employer provides indirect air transportation when it owns the air-
ambulance helicopters and provides the service even though it does not possess the
flight certificate or employ the pilots.23 Other examples of indirect air carriers
include air charter brokers who act as intermediaries between customers and
charter operators.24




21      Arkin v. Trans Int’l Airlines, Inc., 568 F. Supp. 11, 13 (E.D.N.Y. 1982) (“Those
entities ‘hold out to the public’ that they engage in air transportation . . . by selling flights
to the general public, . . . by furnishing flights otherwise unserviced by regularly scheduled
airlines, . . . or by soliciting ‘members of the general public to purchase tickets on the flights
it arranges.’ The common denominator linking these indirect air carriers is their portrayal
and function as providers of travel arrangements and flight transportation.”) (internal
citations omitted).
22      Evans v. Miami Valley Hosp., ARB Nos. 2007-0118, -0121, ALJ No. 2006-AIR-00022,
slip op. at 8-9 (ARB June 30, 2009); Air Evac EMS, Inc., 910 F.3d at 763 (“[D]ecisions of
prior courts and regulators . . . have uniformly treated air ambulance companies as common
carriers. . . . The mere fact that [an air ambulance company] does not collect tickets at the
boarding gate does not mean that it is not a common carrier as required by the federal
statute.”) (internal citations omitted).
23      Evans, ARB Nos. 2007-0118, -0121, slip op. at 9 (finding respondent was an indirect
air carrier because it owned the helicopters and contracted to provide the service through
another entity that possessed the flight certificate and furnished pilots); see also Cobb v.
FedEx Corp. Servs. Inc., ARB No. 2012-0052, ALJ No. 2010-AIR-00024, slip op. at 9 (ARB
Dec. 13, 2013).
24      14 C.F.R. § 295.5(b) (“Air charter broker means a person or entity that, as an
indirect air carrier, foreign indirect air carrier, or a bona fide agent, holds out, sells, or
arranges single entity charter air transportation using a direct air carrier.”), (g) (“Indirect
air carrier and foreign indirect air carrier mean a person or entity that, as a principal, holds
out, sells, or arranges air transportation and separately contracts with direct air carriers
and/or foreign direct air carriers.”).
                                              7


       Carrier status attaches to the entity providing the public-facing service, not
to the broader corporate structure of affiliated entities. As noted above, EPAA
provides anesthesiologist services to BMC. BMC is loosely affiliated with HealthNet
by a common link in organizational structure. WVUHS is a partial owner of
HealthNet and is also the parent medical group of BMC.25 But this affiliation does
not translate to coverage for Respondents.

       In Cobb v. FedEx Corp. Servs. Inc., the ARB held that FedEx Services was an
indirect air carrier for FedEx Express because it provided a component of the same
air transportation service for hire known as FedEx Express.26 FedEx had divided
the integrated service into different operating segments. Here, HealthNet is the
only entity that provides the service of air transportation for hire. The ALJ
concluded there was no showing or evidence that BMC was involved in any of
HealthNet’s activities for air transportation.27 BMC does not own, operate, or lease
the aircraft operated by HealthNet.28 Respondent EPAA, providing anesthesiologist
services, has an even weaker link to HealthNet or air transportation for hire.

2. Respondents Are Not Contractors or Subcontractors Providing Safety-
   Sensitive Functions

     Complainant cites the contractual and business relationship between
WVUHS and HealthNet as further evidence of shared air carrier status.29
Complainant argues the following:

              City Hospital, Inc. dba Berkeley Medical Center is owned
              by West Virginia University Hospitals (WVUH), i.e.,
              WVUH is part owner of HealthNet. As such, WVUH which



25     D. & O. at 5.
26     Cobb, ARB No. 2012-0052, slip op. at 9-11.
27     D. & O. at 8 (“Even if the two were considered sister subsidiaries, an employer is not
subject to AIR-21 jurisdiction as an indirect air carrier based solely on a subsidiary
relationship to either a parent or sister company engaged in business with an air carrier.
See Aityahia v. Aviation Academy of America, ALJ No. 2017-AIR-00029 (2018), aff’d ARB
No. 2018-0028 (ARB Sept. 12, 2019) (per curiam).”).
28     D. & O. at 6.
29     Comp. Br. at 17-18.
                                               8


              includes WVU-Berkeley Medical Center is in fact the air
              carrier, contractor, and subcontractor of HealthNet.[30]

        We disagree. AIR21 extends its prohibition to contractors and subcontractors
of air carriers.31 The Act provides:

              (e) Contractor defined.--In this section, the term
              “contractor” means a company that performs safety-
              sensitive functions by contract for an air carrier.32

       Respondent EPAA is neither a contractor nor a subcontractor of an air
carrier. EPAA has an agreement with BMC, which is not an air carrier. As noted
above, EPAA does not have a contract with HealthNet. EPAA and HealthNet are
cousins tracing to WVUHS. Moreover, EPAA provides anesthesiology services to
BMC, not air-safety services such as repair or manufacturing33 to HealthNet.34

       The same is true for BMC. BMC is affiliated with WVUHS, but WVUHS is
not an air carrier. WVUHS’s status as a partial owner of HealthNet does not
transfer HealthNet’s carrier status to WVUHS. WVUHS would be an air carrier
only if it, too, provided air transportation for hire or carried the mail, not because it
is a part owner of HealthNet.35 Further, BMC, like EPAA, is in the business of




30     Id. at 17.
31     Supra note 15.
32     49 U.S.C. § 42121(e) (emphasis added).
33      “‘Safety-sensitive functions’ under those regulations include flight crewmember
duties, flight attendant duties, flight instruction duties, aircraft dispatcher duties, aircraft
maintenance and preventive maintenance duties, ground security coordinator duties,
aviation screening duties, and air traffic control duties.” Cobb, ARB No. 2012-0052, slip op.
at 7 (citing 14 C.F.R. §§ 120.105, 120.215).
34     The ALJ observed FAA regulations defining “safety-sensitive functions” as including
repair and manufacturing services. D. & O. at 6 n.8, 8.
35      See Union Telecom, LLC v. United States, 144 Fed. Cl. 477, 488 (Fed. Cl. 2019) (“[A]
carrier affiliate is also a carrier only if the affiliate too provides telecommunications
services. As explained above, since UTA did not offer telecommunications services, it was
not a carrier.”); Greene v. Long Island R. Co., 99 F. Supp. 2d 268, 272 (E.D. N.Y. 2000),
aff’d, 280 F.3d 224 (2d Cir. 2002) (“When determining whether a defendant is a ‘common
carrier,’ [within meaning of FELA] it is not the corporate form of the entity that is
                                              9


providing medical services, not air-safety services. There is no evidence of a contract
between BMC and HealthNet for BMC to provide air-safety services to HealthNet.36

                                       CONCLUSION

       The Respondents, EPAA and BMC, are neither air carriers nor contractors or
subcontractors of air carriers providing safety-sensitive services by contract.
Because AIR21’s prohibition is limited to air carriers or contractors or
subcontractors of air carriers providing safety-sensitive services, Respondents are
not covered entities. Accordingly, the ALJ’s opinion granting summary decision for
lack of coverage is AFFIRMED.

       SO ORDERED.




                                    THOMAS H. BURRELL
                                    Administrative Appeals Judge



                                    RANDEL K. JOHNSON
                                    Chief Administrative Appeals Judge




dispositive. Instead, courts look to the actual operations of the entity to determine whether
it is operating as a common carrier.”) (citation omitted).
36     D. & O. at 8.