Robert Kreb v. Usdol

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2022
• Docket: 20-73497
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 17 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT KREB, No. 20-73497

Petitioner, LABR No. ARB Case No. 2018-0065 v.

U.S. DEPARTMENT OF LABOR, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Department of Labor

Submitted June 16, 2022**

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges

Robert Kreb petitions for review of a final order of the Department of Labor

Administrative Review Board dismissing his complaint alleging that his employer

fired him in violation of 49 U.S.C. § 42121. We have jurisdiction pursuant to 49

U.S.C. § 42121(b)(4)(A). We affirm the Board’s decision, unless it is arbitrary,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). capricious, an abuse of discretion, or otherwise not in accordance with law or the

factual findings are unsupported by substantial evidence in the record as a whole.

5 U.S.C. § 706(2); Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1121 (9th

Cir. 2004). We deny the petition for review.

Substantial evidence supports the administrative law judge’s finding, as

affirmed by the Board, that Kreb did not engage in protected activity. See 49

U.S.C. § 42121 (defining protected activity and setting forth the elements of a

prima facie case). Specifically, Kreb did not have a good faith, objectively

reasonable belief that his communications related to safety violations because he

exaggerated and misrepresented the risks of the scheduled flight. Furthermore, he

only raised possible problems that might occur and could be safely and

appropriately resolved later in his shift. He also failed to establish that a pilot with

his training and experience would have agreed that accepting the flight assignment

would have posed a safety risk.

We decline to consider issues not raised to the Board or not properly raised

in the the opening brief. See 29 C.F.R. § 1979.110(a) (“The petition for review

[filed with the Board] must specifically identify the findings, conclusions, or orders

to which exception is taken. Any exception not specifically urged ordinarily shall

be deemed to have been waived by the parties.”); Coupar v. U.S. Dep’t of Labor,

2 105 F.3d 1263, 1267 (9th Cir. 1997) (as a general rule, an issue raised for the first

time on review and not considered in administrative proceedings has been waived);

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues listed, but not

argued in the body of the opening brief, have been waived).

PETITION FOR REVIEW DENIED.