Briggs v. United Airlines, 2003-AIR-3 (ALJ June 12, 2003)

USDOL/OALJ Reporter

Briggs v. United Airlines, 2003-AIR-3 (ALJ June 12, 2003)

U.S. Department of Labor

Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105

(415) 744-6577
(415) 744-6569 (FAX)

Issue Date: 12 June 2003

CASE NUMBER: 2003-AIR-00003

In the Matter of:

William Briggs,
Complainant,

vs.

United Airlines,
Respondent.

ORDER CLARIFYING CASE STATUS AFTER DENIAL OF
RESPONDENT'S REQUEST FOR INTERLOCUTORY APPEAL

On October 3, 2002, the Assistant Secretary through the Deputy Regional Administrator filed its notice of appearance in this case and gave notice to the Office of Administrative Law Judges ("OALJ") that in any litigation that may ensue in the case as a result of an objection, the Assistant Secretary would be represented in the case by the Designated Counsel for Safety and Health Programs at the U.S. Department of Labor, Office of the Solicitor in San Francisco, California (the "notice of appearance"). A true and correct copy of which is attached hereto and incorporated as Exhibit "1."

On February 14, 2003, I issued the non-final Order Allowing Proceedings to Continue Unabated by the Automatic Stay of Respondent's Chapter 11 Bankruptcy Filing (the "February 14 Order") in this case.

On February 27, 2003, Respondent filed two Petitions for Interlocutory Review of my February 14 Order - one with my office and a second one to the Administrative Review Board ("ARB").

On March 10, 2003, I issued an Order Denying Respondent's Request To Certify Bankruptcy Stay Issue For Interlocutory Appeal (the "March 10 Order").

On March 26, 2003, the ARB issued an order entitled Notice of Appeal And Order Establishing Briefing Schedule wherein the ARB accepted jurisdiction to determine whether to accept the interlocutory appeal of my February 14 Order, and, if so, whether to uphold or reverse the February 14 Order on appeal. The ARB did not address or order any stay of the case in chief pending its review of the February 14 Order.

On April 10, 2003, Respondent filed with me its Motion For An Immediate Stay Of All Proceedings Pending The Administrative Review Board's March 26 Notice Of Appeal And Order Establishing Briefing Schedule (the "Stay Motion").

[Page 2]

At the same time, Respondent filed an identical stay motion with the ARB (the "Motion for Temporary Stay").

On April 28, 2003, I received a copy of Respondent's reply brief to the ARB in support of its request for an interlocutory appeal of the February 14 Order. Respondent's Reply brief contained a factual misrepresentation at pages 9 and 10, in effect, arguing incorrectly that because no governmental unit had filed a notice of appearance in this case, the bankruptcy Code § 362(b)(4) exemption should not apply here to allow the case to go forward. As referenced above and in the February 14 Order, a notice of appearance has, in fact, been filed here by the Department of Labor intervening in the case to assist or continue to bring the same claims as Complainant at any time through hearing.¹

On April 30, 2003, the ARB issued an Order Denying Motion for Temporary Stay.

On May 30, 2003, the ARB issued its decision in Davis v. United Airlines, ARB No. 02-105, ALJ No. 01-AIR-5 (ARB May 30, 2003) (the "Davis decision"), the consolidated appeals of four separate AIR whistleblower actions, all cases being in post-hearing status when Respondent filed its bankruptcy petition in December 2002, three of which were pending appeal before the ARB and one which was taken under submission by an administrative law judge ("ALJ") for decision.

Also on May 30, 2003, the ARB issued a Final Order in this case denying Respondent's Petition for Interlocutory review (the "Final Order").

On June 9, 2003, I received correspondence from Respondent's counsel, John C. Fish, Jr., Esq., informing me of a telephone message he received and had transcribed from ARB General Counsel Janet Dunlop apparently during the evening of May 30, 2003. Ms. Dunlop's transcribed telephone message to Mr. Fish states that she was letting him know that the Final Order denying Respondent's interlocutory appeal came about because the ARB issued four orders in the consolidated Davis decision finding that the automatic stay applies in those cases. Ms. Dunlop then stated that she thought Mr. Fish might be preparing for trial so she believed he should know of the Final Order and wished him a good weekend.

Due to this telephone message and Mr. Fish's reading of the Davis decision, Mr. Fish's letter goes on to request that I issue an order staying all proceedings in the instant action because of the automatic stay. A true and correct copy of Mr. Fish's June 6, 2003 letter and the attached transcribed telephone message from Ms. Dunlop is attached hereto and incorporated as Exhibit "2."

With the above facts as a backdrop, I find that procedurally the Final Order simply brought to an end Respondent's request to appeal the February 14 Order. Therefore I find that the February 14 Order stands and this proceeding shall go forward unabated by the automatic stay from Respondent's bankruptcy.

The Davis decision specifically states at page 3 that it "addresses only the issues and facts of these [four Davis consolidated] cases. We take no position at this time as to whether the § 362(b)(4) exception to the automatic stay would apply if the Secretary or her delegatee took a role in § 42121 proceedings other than as investigator of the employee's initial complaint." That is exactly the distinguishing fact of this case that in October 2002, the Secretary's delegatee, the Solicitor's Office filed a notice of appearance to intervene at its discretion after the investigation of Mr. Briggs' initial complaint.

[Page 3]

Thus, the Davis decision is factually distinguishable from this case because no notice of appearance was filed in any of the four consolidated cases by the Solicitor's Office unlike this case. Also, all four consolidated cases were in post-hearing status without the U.S. Department of Labor's Office of the Solicitor ("DOL") intervening. In fact, United Airlines successfully argued in Davis that the DOL "has ... not sought to intervene in this action [Davis] which is limited to Complainant's request for a modest money judgment." Davis decision, p. 16 citing United's appeals brief at 3-4.

Similarly, because here a notice of appearance was filed by the DOL, the cases relied on by the ARB in the Davis decision are distinguishable.

For example, the STAA decision in Nelson v. Walker Freight Lines, Inc., 1987-STA-24 (Sec'y July 26, 1988) ("Nelson") is instructive while not a deciding authority here.² In Nelson, the Secretary of Labor held that the automatic stay provisions did not apply to the STAA whistleblower proceedings where the complaint was found to have merit and DOL's notice of appearance stated that if any litigation ensued, DOL would be represented by the Regional Solicitor from the Denver, Colorado office.

Unlike Nelson, the complaint in this case was dismissed for lack of merit, albeit the dismissal may ultimately prove to be erroneous.³ Nevertheless, like Nelson where DOL intervened and filed a notice of appearance to participate in any litigation that ensued, here DOL took the exact same action with its October 3, 2002 notice of appearance and intervened in this case.

Because this case comes before me under the AIR 21 Act, is not an STAA proceeding, and the Assistant Secretary issued his or her October 3, 2002 notice of appearance to participate as a party with Complainant or as an intervener, I find that the instant action is factually and legally distinguishable from two STAA cases - Thomas and Dearman v. Western American Concrete, 1990-STA-16 (Sec'y April 8, 1991)("Thomas") and Torres v. Transcon Freight Lines, 1990-STA-29 (Sec'y January 30, 1991) ("Torres"). Both Thomas and Torres involved holdings by the Secretary that each case was stayed by 11 U.S.C. § 362(a) with no exception where the Assistant Secretary proceeded to investigate each complaint and determined them to have no merit and, thereafter, there was an ensuing absence of the Assistant Secretary with no notice of appearance either as a prosecuting party or as an intervener under the STAA regulations.

Although AIR 21 Act actions, unlike NLRB, NLRA, and EEOC proceedings, do not require the filing of a complaint by a Federal administrative unit, they nevertheless can be considered "proceedings by a governmental unit" within the meaning of the automatic stay exemption. The regulations implementing the AIR 21 Act specifically allow the Assistant Secretary to participate as a party or amicus curiae at any time in the administrative proceedings. 29 C.F.R.§ 1979.108. In the case before me, the Assistant Secretary through the Deputy Regional Administrator filed his or her notice of appearance and gave notice to our office that in any litigation that may ensue in the case as a result of an objection, the Assistant Secretary would be represented in the case by the Designated Counsel for Safety and Health Programs at the U.S. Department of Labor, Office of the Solicitor in San Francisco, California with full right to participate in this proceeding with or without the participation of Complainant. Consequently, it is not mandated that this whistleblower action be a privately-prosecuted action by an individual complainant. Just like the EEOC suing on behalf of an individual to also enforce Title VII to stop harm to the public from invidious employment discrimination which is detrimental to the welfare of the country, AIR21 whistleblower cases similarly proceed both for an individual's right to correct a wrong while also seeking to stop a harm to the public through employment discrimination which can easily be detrimental to the welfare of public safety in connection to the commercial airline industry.

[Page 4]

Finally, as to General Counsel Dunlop's May 30, 2003 contact with Respondent's counsel, it is uncertain whether her belief that the Davis decision carries over to stay this proceeding may have been based on a misunderstanding of the relevant facts from Respondent's misleading Reply brief.

As a result, I find the Assistant Secretary has exercised his or her discretion by filing the notice of appearance and, together with or without Complainant, may prosecute the case before me. Moreover, I find that the case before me falls within the exemption of § 362(b)(4) of the Bankruptcy Code and can continue unabated by the automatic bankruptcy stay.

IT IS SO ORDERED.

Gerald Michael Etchingham
Administrative Law Judge

[ENDNOTES]

¹ After discovering the misstated fact and argument in Respondent's Reply brief, I sent an April 29, 2003 letter to counsel for both parties requesting that Mr. Fish immediately point out the factual inaccuracies in the Reply brief to the ARB. Instead of immediately filing an errata correcting the misstatements, Mr. Fish's office filed a request to file an additional reply brief responding to a separate Solicitor's brief and, secondly, to my April 29 correspondence without explaining or identifying the factual error leading up to the request.

² The AIR 21 Act is relatively new having been created in 2000 and there are not many issued decisions.

³Whether or not an AIR 21 Act complaint is initially dismissed or not is irrelevant to determine whether § 362(b) applies as the initial investigation by OSHA in this expedited proceeding is cursory at best given the extreme time pressures built into the case by statute. For example, written findings must be issued within 60 days of the filing of a complaint. 29 C.F.R § 1979.105. Many times there is either not enough time or qualified personnel are unavailable to make a reliable legal analysis as to the merits of a recently filed AIR 21 Act complaint. As a result, arbitrary dismissals can often occur at the preliminary stage of the case before the record is developed.