United States District Court, D. Columbia
[Copyrighted Material Omitted]
Bombardier, Inc., Plaintiff: Matthew J. MacLean, Thomas G.
Allen, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC
United States Department of Labor, Thomas E. Perez, in his
official capacity as Secretary of Labor, Defendants: Lisa Ann
Olson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington,
Document Nos.: 16, 19
Defendants' Motion to Dismiss and Denying as Moot
Plaintiff's Motion for Preliminary Injunction
CONTRERAS, United States District Judge.
Bombardier, Inc., is a Canadian company currently embroiled
in Department of Labor administrative proceedings.
Bombardier's former employee initiated proceedings in the
Department of Labor by charging the company with
discriminatory discharge in violation of the whistleblower
protection provisions of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (AIR21), 49
U.S.C. § 42121. While proceedings in the Department were
still pending, Bombardier filed suit in this Court to enjoin
the Department from continuing its administrative
adjudication. Seeking both declaratory and injunctive relief,
Bombardier claimed that the Department acted ultra vires by
exercising jurisdiction over
Bombardier and thus giving impermissible extraterritorial
application to AIR21.
Department moved to dismiss Bombardier's complaint,
whereas Bombardier moved for a preliminary injunction. The
Department argues that Bombardier failed to exhaust
administrative remedies and therefore must complete AIR21
administrative procedures before obtaining judicial review.
Bombardier contends that its suit is proper--and an
injunction against the Department is necessary--because the
Department's jurisdiction over Bombardier is ripe for
review under the Administrative Procedure Act. The
Department's reasoning has merit, whereas
Bombardier's does not. Accordingly, the Court will grant
the Department's motion to dismiss the complaint and deny
as moot Bombardier's motion for a preliminary injunction.
AIR21 ADMINISTRATIVE PROCEDURES
case challenges administrative proceedings under the
whistleblower protection provisions of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century
(AIR21), 49 U.S.C. § 42121. It is useful at the
outset to review the statutes and regulations authorizing
AIR21's Whistleblower Protections
U.S.C. § 42121 creates a detailed administrative regime
to protect whistleblowers who inform their employers or the
federal government about violations of federal laws relating
to air carrier safety. It declares that
[n]o air carrier or contractor or subcontractor of an air
carrier may discharge an employee or otherwise discriminate
against an employee . . . because the employee . . . 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 . . . .
49 U.S.C. § 42121(a). An " air carrier" is
" a citizen of the United States undertaking . . . to
provide air transportation." Id. §
40102(a)(2). Air carriers may be individual citizens of the
United States, a partnership of citizens of the United
States, or corporations or associations organized under the
laws of the United States or any of the states. Id.
§ 40102(a)(15) (defining " citizen of the United
States" ). A " contractor" is " a company
that performs safety-sensitive functions by contract for an
air carrier." Id. § 42121(e).
Administrative Proceedings in the Department of
someone believes that he or she has been discharged or
otherwise discriminated against in violation of §
42121(a), the person has ninety days from the date of
discharge or discrimination to file a complaint with the
Secretary of Labor. Id. § 42121(b)(1); 29
C.F.R. § 1979.103(d). Department of Labor regulations
oblige the complainant to file the complaint with the
Occupational Safety and Health Administration (OSHA) of the
United States Department of Labor. 29 C.F.R. §
OSHA Dismissal, or OSHA Investigation and Findings
then has sixty days to investigate whether reasonable cause
exists to believe discrimination occurred. 49 U.S.C. §
42121(b)(2)(A); 29 C.F.R. § § 1979.104-1979.105.
But if the complainant fails to
make a prima facie showing that protected whistleblower
behavior was a factor contributing to the employer's
discriminatory action--or, if the employer shows, by clear
and convincing evidence, that it would have acted the same in
the absence of the complainant's whistleblower
behavior--then no investigation is required, and the
complaint will be dismissed. 49 U.S.C. § 42121(b)(2)(B);
29 C.F.R. § 1979.104(b)--(d).
investigation is warranted, OSHA must conclude the
investigation and release written findings within the
sixty-day period prescribed by statute. 49 U.S.C. §
42121(b)(2)(A); 29 C.F.R. § 1979.105(a). If OSHA
concludes that reasonable cause exists to believe
discrimination occurred, it must accompany its findings with
a preliminary order providing relief to the complainant. 49
U.S.C. § 42121(b)(2)(B); 29 C.F.R. §
Objections and Request for Hearing
party desires review, " including judicial review,"
of OSHA's findings (or of OSHA's dismissal of the
complaint), that party must file objections and request a
hearing on the record within thirty days after receiving the
findings (or the dismissal). 29 C.F.R. § 1979.106(a);
accord 49 U.S.C. § 42121(b)(2)(A). In cases
where OSHA issued a preliminary order, the order becomes
" a final order that is not subject to judicial
review" if no party timely files objections and requests
a hearing. 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. §
Hearing before an Administrative Law Judge
on objections are held before Department of Labor
administrative law judges, and must generally " commence
expeditiously." 29 C.F.R. § 1979.107(b).
Administrative law judges have broad discretion to limit
discovery to expedite the hearing. Id. The hearings
themselves are " hearings de novo, on the record,"
but in place of formal rules of evidence, the administrative
law judge " may exclude evidence which is immaterial,
irrelevant, or unduly repetitious" and will apply "
rules or principles designed to assure production of the most
probative evidence." Id. § 1979.107(b),
Decision and Order by the Administrative Law
the hearing, the administrative law judge must issue a
decision that includes findings, conclusions, and an order
either prescribing remedies or denying the complaint.
Id. § 1979.109(a).
Review and Final Order by the Administrative Review
party desires to seek review, " including judicial
review," of the administrative law judge's decision,
then that party has ten days to petition the Department of
Labor's Administrative Review Board for review.
Id. § 1979.110(a). If no party timely petitions
the Board for review, then the administrative law judge's
decision becomes a final order ten business days after the
date of the decision. Id. § 1979.109(c). At
that time, all proceedings before the administrative law
judge are considered concluded. Id. §
1979.110(c). Even if a party has petitioned the Board for
review within the ten-day period, the administrative law
judge's order will still become a final order "
unless the Board, within thirty days of the filing of the
petition, issues an order notifying the parties that the case
has been accepted for review." Id. §
Board does accept a decision for review, it must issue its
own final decision no more than 120 days after the conclusion
of all proceedings before the administrative law judge.
Id. § 1979.110(c); see also 49 U.S.C.
§ 42121(b)(3)(A) (" Not later than 120 days after
the conclusion of a hearing . . . the Secretary of Labor
issue a final order . . . ." ). The Board's final
order must either order appropriate remedies or deny the
complaint. 49 U.S.C. § 42121(b)(3)(A); 29 C.F.R. §
Judicial Review in a United States Court of Appeals
then does AIR21's statutory scheme contemplate judicial
review. If a person is " adversely affected or
aggrieved" by the final order of an administrative law
judge or the Administrative Review Board, then that person
has sixty days to file a petition for review " in the
United States Court of Appeals for the circuit in which the
violation [of the whistleblower protection provisions]
allegedly occurred or the circuit in which the complainant
resided on the date of such violation." 49 U.S.C. §
42121(b)(4)(A). If a party misses the sixty-day deadline, it
may not seek later judicial review of the final order.
Id. § 42121(b)(4)(B) (" An order . . .
with respect to which review could have been obtained . . .
shall not be subject to judicial review in any criminal or
other civil proceeding." ).
the plaintiff here, has brought this case seeking judicial
review while still entangled within AIR21's complex
statutory and regulatory framework. The Court now turns to
the facts of the case at hand.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Sobhani's Employment and Termination
to the Complaint, Plaintiff Bombardier, Inc. is a Canadian
company, and its operations are " substantially"
conducted within Canada. Compl. ¶ ¶ 7, 14, ECF No.
1. Bombardier designs and manufactures aircraft; it does not
provide air transportation to the public. Id. ¶
¶ 13, 15.
employed Jeffrey A. Sobhani at the beginning of 2014 as an
Engineering Specialist working out of the company's
facilities in Toronto, Canada. Id. ¶ ¶
18-19. On January 30, 2014, Mr. Sobhani sent an internal
memorandum to Bombardier that raised concerns about the
methodology used to interpret flight test data for
Bombardier's Q400 aircraft. Id. ¶ 21. The
data came from tests conducted in Wichita, Kansas in 1998,
and the data were stored in Wichita afterward. Decl. Jeff
Sobhani, Pl.'s Opp'n Defs.' Mot. Dismiss Ex. E,
ECF No. 17-1. On March 7, 2014--five weeks after Mr. Sobhani
released his memorandum--Bombardier terminated Mr.
Sobhani's employment. Compl. ¶ 24. Bombardier
contends that Mr. Sobhani's termination was part of
Bombardier's worldwide reduction-in-force, in which
Bombardier terminated approximately 1,700 employees.
Id. ¶ 24.
Mr. Sobhani's Whistleblower Complaint Against Bombardier
at the Federal Aviation Administration
his termination, Mr. Sobhani called on United States agencies
for aid. He lodged a whistleblower complaint with the Federal
Aviation Administration (FAA) and charged Bombardier with
quality control problems in its Q400 flight testing.
Id. ¶ 22; Letter from Dorenda D. Baker to David
Trumbull 1, Pl.'s Opp'n Defs.' Mot. Dismiss Ex.
B-2, ECF No. 17-1. But the FAA declined to investigate
because it decided that investigating the matter would be
beyond the FAA's jurisdiction: it determined that the
quality control process in question was used for Canadian
certification, and that " it is not within the
jurisdiction of the FAA to investigate another country's
certification program." Compl. ¶ 22.
Mr. Sobhani's Discrimination Complaint Against Bombardier
at the Department of Labor
this time, Mr. Sobhani also initiated administrative
proceedings with the
Department of Labor, the defendant in this case.
AIR21's whistleblower protection provisions, Mr. Sobhani
filed a discrimination complaint on March 19, 2014 with the
OSHA regional office in Kansas City, Missouri. Id.
¶ 26; Decision & Order Den. Resp't's Mot. Summ.
Decision 1, Pl.'s Opp'n Defs.' Mot. Dismiss Ex.
H, ECF No. 17-1. Mr. Sobhani alleged that Bombardier "
discriminated against him by terminating his employment in
retaliation for reporting safety of flight issues on the Q400
aircraft." Order Den. Dismissal Compl. Failure State
Claim 3, Pl.'s Opp'n Defs.' Mot. Dismiss Ex. G,
ECF No. 17-1.
dismissed Mr. Sobhani's complaint for lack of
jurisdiction in early May 2014. Decision & Order Den.
Resp't's Mot. Summ. Decision 2. It found that
Bombardier was not covered under AIR21 because Bombardier was
" not an air carrier within the meaning of 49 U.S.C.
§ 42121 and 49 U.S.C. § 40102(a)(2)" and
because Mr. Sobhani likewise was " not an employee
within the meaning of 49 U.S.C. § 42121." Compl.
Mr. Sobhani's Objections and Request for Hearing
Sobhani timely objected to the dismissal and requested a
hearing before an administrative law judge. Id.
¶ 29. He argued that, contrary to OSHA's views on
the matter, AIR21 applied to Bombardier: Bombardier offered
transportation to Wichita, Kansas in the United States and
Bombardier conducted business with United States air
carriers, so Bombardier was an " air carrier" or a
" contractor" of an air carrier for AIR21 purposes.
Order Den. Dismissal Compl. Failure State Claim 2. Similarly,
Mr. Sobhani asserted that he merited AIR21 protections
because he was an employee of an " air carrier" or
a " contractor" of an air carrier. Id.
Pre-Hearing Proceedings Before Administrative Law
Administrative Law Judge Stephen L. Purcell issued a Notice
of Docketing and Order to Show Cause on June 19, 2014. Compl.
¶ 30; Notice of Docketing and Order to Show Cause,
Pl.'s Opp'n Defs.' Mot. Dismiss Ex. F, ECF No.
17-1. He ordered the parties to show cause within thirty days
for why the case should not be dismissed for lack of
jurisdiction. Notice of Docketing and Order to Show Cause 2
(" If Bombardier is not an employer and Sobhani is not
an employee as defined by AIR21, then this case must be
dismissed . . . ." ).
Judge Purcell ultimately declined to dismiss the complaint.
Compl. ¶ 31. His July 31, 2014 order emphasized "
the minimal pleading requirements" in Department of
Labor whistleblower protection proceedings. Order Den.
Dismissal Compl. Failure State Claim 5. The judge's
written decision explained that Mr. Sobhani had stated
sufficient facts to provide " fair notice" that,
for AIR21 purposes, Bombardier is a contractor and Sobhani is
an employee of a contractor. Id. The decision did,
however, note that " [t]o the extent further development
of the evidentiary record prior to trial shows that
Sobhani's allegations are untrue, [Bombardier] is
entitled to seek summary judgment." Id.
Summary Decision Denied
the case was assigned to Administrative Law Judge Scott R.
Morris, Bombardier proceeded to file a motion for summary
judgment on October 2, 2014. Compl. ¶ ¶ 32-33.
Judge Morris construed the motion as one for " summary
decision," which is the relevant motion in hearings