Robert Kreb v. Usdol ( 2022 )

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NOT FOR PUBLICATION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,
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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.
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