Background
Corr Flight S., doing business as Nicholas Air, employed Colin DeBuse as a captain-in-training whose role was to observe operations until he qualified as a pilot-in-command or second-in-command. While observing flights with Captain Stacey Lee, DeBuse saw several alleged safety violations, including failures to record mechanical issues, maintain required cockpit staffing, and ensure that a crew member wore an oxygen mask. DeBuse reported a concern to management and refused to fly with Lee.
Corr Flight placed DeBuse on unpaid leave, offered him third-party simulator training that would avoid contact with Lee, and later terminated him after he did not accept the offer. DeBuse filed an AIR21 whistleblower complaint. An administrative law judge found that his safety report and refusal to fly with Lee were protected activities that contributed to his unpaid leave, awarding back pay for 15 days plus interest, attorney’s fees, and costs. The ALJ separately concluded that DeBuse’s refusal of simulator training was the sole cause of his termination. The Department of Labor’s Administrative Review Board affirmed, and Corr Flight petitioned for review.
The Court’s Holding
The Fifth Circuit denied Corr Flight’s petition. It agreed that the two-layer removal protections applicable to Department of Labor ALJs are unconstitutional and held that Corr Flight had not forfeited that structural challenge during the administrative proceedings. The governing regulation required Corr Flight to identify the findings, conclusions, or orders challenged, but did not expressly require exhaustion of every issue before the agency.
Nevertheless, Corr Flight was not entitled to vacatur because it sought retrospective relief without showing that the unconstitutional removal restrictions caused it harm. The court also left the AIR21 award intact because Corr Flight challenged only the ALJ’s refusal-to-fly rationale, not the independent finding that DeBuse’s safety report was protected activity contributing to his unpaid leave. By failing to brief a challenge to that finding, Corr Flight forfeited the issue, leaving an independently sufficient basis for the award. The court therefore did not decide whether DeBuse’s refusal to fly with Lee was protected activity.
Key Takeaways
- An unconstitutional ALJ removal restriction does not justify retrospective vacatur absent a causal link between the restriction and the challenged outcome.
- The applicable Department of Labor regulation did not require administrative issue exhaustion, so Corr Flight could raise its constitutional removal challenge in court.
- A petitioner must challenge every independent ground supporting an agency order; leaving one ground unchallenged can require denial of the petition without consideration of the others.
Why It Matters
The decision reinforces that structural constitutional defects in an administrative adjudication do not automatically undo completed agency action. A party seeking backward-looking relief must demonstrate particularized harm attributable to the unconstitutional removal protection.
It also underscores a practical appellate rule for agency-review litigation: when an order rests on multiple independent rationales, the opening brief must contest each one. Corr Flight’s failure to challenge the safety-report rationale preserved the back-pay award regardless of its arguments about DeBuse’s refusal to fly.