Saliba v. American Airlines, Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
BAHIG SALIBA,
COMPLAINANT,
v.
AMERICAN AIRLINES, INC.,
RESPONDENT.
ARB CASE NO. 2025-0094
ALJ CASE NO. 2025-AIR-00046
DATE: December 30, 2025
Appearances:
For the Complainant:
Bahig Saliba; Pro Se; Scottsdale, Arizona
For the Respondent:
Patrick D. Joyce, Esq.; Seyfarth Shaw LLP; Seattle, Washington
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL
and KIKO, Administrative Appeals Judges
DECISION AND ORDER DENYING INTERLOCUTORY APPEAL
This case arises from a complaint filed by Complainant Bahig Saliba against
his former employer, Respondent American Airlines, alleging retaliation in violation
of the whistleblower protections of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR21).1 On September 23, 2025, Complainant
filed a Petition for Review with the Administrative Review Board (Board) appealing
the Chief Administrative Law Judge’s (ALJ’s) denial of his motion to remand his
AIR21 claim to the Occupational Safety and Health Administration (OSHA) and to
compel OSHA to vacate its decision, file and notify Respondent of allegations he
1 49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2025).

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contends OSHA omitted from his complaint, and conduct a new investigation.2
Complainant further asks the Board to remand to OSHA to complete the filing and
notification process.3
BACKGROUND
Complainant is a former American Airlines pilot.4 OSHA recorded
Complainant’s December 16, 2024 complaint with one complaint allegation:
American terminated Complainant’s employment in retaliation for his filing
internal complaints and an FAA complaint that “pilots who took the Johnson &
Johnson vaccination that was paused by the [FDA] from 2021-2022 held invalid
medical certificates for accepting an experimental drug that was not approved or
authorized by the [FAA].”5 In its August 1, 2025 determination letter, OSHA stated
it had completed its investigation and denied the claim on the basis that it found
American met its affirmative defense.6
Complainant filed his objections to OSHA’s determination with the Office of
Administrative Law Judges (OALJ). Prior to the case’s reassignment from the Chief
ALJ to an ALJ who would issue a prehearing order and preside over the hearing as
outlined in the Notice of Docketing,7 Complainant moved for the ALJ to remand to
OSHA to vacate its decision and “[c]ompel OSHA to perform [a] nondiscretionary
duty and issue a new letter of investigation . . . to include all the allegations” and to
conduct said investigation with new investigators.8 Complainant asserted the
OSHA investigator failed to accurately record and investigate the full breadth of
2 Petition for Review (Pet. for Review) at 8; Motion for Remand at 8.
3 Complainant’s Brief Showing Cause (Comp. Br.) at 13.
4 Pet. for Review at 1.
5 Complaint Allegation.
6 August 1, 2025 OSHA Determination Letter at 1.
7 Notice of Docketing at 1.
8 Motion for Remand at 8. The Chief ALJ issued the Notice of Docketing on September
5, 2025, informing the parties the case had not yet been assigned to a presiding ALJ and
that a Notice of Hearing and Prehearing Order would be sent to the parties once that
occurred. Notice of Docketing at 1. Three days later, Complainant filed his Motion for
Remand. Order Denying Motion to Remand at 1.

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allegations comprising what he originally reported to OSHA in his complaint.9 He
specifically sought the inclusion of his allegations that Respondent “interfere[d] in
Complainant’s FAA medical certification standard, a violation of 14 C.F.R. §§ 91.11
and 121.580” and engaged in “coercion [of Complainant] to operate aircraft under
threat.”10
The Chief ALJ denied Complainant’s motion, finding the AIR21
implementing regulations did not generally allow ALJs to remand to OSHA to
conduct further investigation.11 Complainant then filed a motion for reconsideration
which argued OSHA’s alleged exclusion of some of his allegations violated the
nondiscretionary filing and notification requirements described in 49 U.S.C. §
42121(b)(1).12
Complainant then filed a Petition for Review with the ARB.13 Having not yet
decided Complainant’s motion for reconsideration, the Chief ALJ issued an order
which stayed all deadlines and discovery pending Complainant’s interlocutory
9 Motion for Remand at 2-5. The electronic record currently at OALJ does not indicate
what precisely Complainant reported to the OSHA investigator prior to her drafting the
“Complaint Allegation” she certified Complainant had filed with her on December 16, 2024.
Complaint Allegation. The “Complaint Allegation” is the only OSHA documentation in that
record preceding OSHA’s August 1, 2025 determination denying the complaint. August 1,
2025 OSHA Determination Letter. The determination letter then parrots the single
allegation stated in the “Complaint Allegation” drafted by the investigator as follows: “In
brief, the complaint alleged you were terminated for raising concerns regarding pilots who
took the Johnson & Johnson (J&J) vaccination that was paused by the Food and Drug
Administration (FDA) from 2021-2022 held invalid medical certificates for accepting an
experimental drug that was not approved or authorized by the Federal Aviation
Administration (FAA).” August 1, 2025 OSHA Determination Letter at 1.
10 Motion for Remand at 4.
11 Order Denying Motion to Remand at 1.
12 Motion for Reconsideration at 1-3. “Upon receipt of such a complaint, the Secretary
of Labor shall notify, in writing, the person named in the complaint and the Administrator
of the Federal Aviation Administration of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence supporting the complaint, and of
the opportunities that will be afforded to such person under paragraph (2).” 49 U.S.C. §
42121(b)(1).
13 Pet. for Review.

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appeal before the Board.14 In his interlocutory appeal, Complainant seeks reversal
of the ALJ’s decision denying his motion, and asks that the Board remand his claim
to OSHA for “proper [f]iling and [n]otification of all the allegations in the complaint
. . . .”15 Complainant did not request that the Chief ALJ certify the issue he raises
for interlocutory appellate review.16
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the Board to hear appeals
from ALJ decisions and issue agency decisions in cases arising under AIR21.17 This
authority includes the discretion to consider interlocutory appeals “in exceptional
circumstances . . . .”18
DISCUSSION
1. The Board Declines to Deny the Petition for Review for Complainant’s
Non-Compliance with Service Requirements Amidst the Government
Shutdown
The Board’s September 30, 2025 Order to Show Cause in this matter ordered
Complainant to file a brief within fourteen calendar days explaining why his
interlocutory appeal satisfied the three elements of the collateral order exception
explained in the Order.19 Due to the federal government shutdown which took effect
on October 1, 2025, the Board notified visitors to the Electronic Filing and Service
14 Sept. 26, 2025 Email Minute Order. Complainant also filed for a writ of mandamus
in the United States District Court for the District of Arizona (2:25-cv-03240). Pet. for
Review at 7. In District Court, Complainant seeks orders to vacate OSHA’s decision, to
compel OSHA to perform a nondiscretionary duty to issue a new letter of investigation with
all of his complaint allegations, and to assign a new investigation to different investigators.
Complaint in 2:25-cv-03240.
15 Comp. Br. at 13 (emphasis original).
16 28 U.S.C. § 1292(b).
17 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).
18 Id.
19 Order to Show Cause at 3.

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(EFS) system website that all deadlines in cases pending before the Board remained
in effect and that while parties could submit filings through EFS during the
shutdown, the Board could not process or accept the filings until the Department of
Labor reopened. The notice instructed parties that EFS would not effectuate service
of filings and that parties were to serve their filings by other lawful means outlined
in the Board’s Rules of Practice and Procedure at 29 C.F.R. § 26.4. Those means
include mail,20 commercial delivery,21 and “[e]lectronic mail, if consented to in
writing by the person served.”22
Complainant filed his brief through EFS in response to the Order to Show
Cause on October 6, 2025. Respondent first contends in its response brief that
Complainant did not effectuate service of his brief upon Respondent by means
alternative to EFS per the Board’s notice to parties who filed via EFS during the
shutdown. Respondent argues that “for this reason alone” the Board should deny
Complainant’s Petition for Review.23
We decline to deny Complainant’s Petition solely for his failure to follow the
Board’s notification that EFS filers were to effectuate service by alternative lawful
means detailed in 29 C.F.R. § 26.4 during the shutdown. Respondent does not argue
Complainant’s failure prejudiced it by interfering with its ability to submit its brief,
or to frame and present its defense to the Board.24 In fact, Respondent proceeded to
argue in its response brief that Complainant’s interlocutory appeal before the Board
does not meet the collateral order exception.25 As Respondent has not argued it
suffered harm owing to Complainant’s non-compliance with the Board’s notice to
EFS filers regarding service during the course of the shutdown (nor is any such
harm evident), we will not deny the Petition for Review on the basis of insufficient
or untimely service of Complainant’s brief.
20 29 C.F.R. § 26.4(b)(2).
21 Id. § 26.4(b)(3).
22 Id. § 26.4(a)(1).
23 Respondent American Airlines, Inc.’s Response Regarding the Board’s September 30,
2025, Order to Show Cause (Resp. Br.) at 1-2.
24 Id. at 1-2.
25 Id. at 2-3. Complainant appears to have belatedly served Respondent his brief in
response to the Order to Show Cause via certified mail on October 31, 2025. Comp. Brief
filed on October 31, 2025 at 14.

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2. The Chief ALJ’s Denial of Complainant’s Motion to Remand to OSHA
Does Not Satisfy the Collateral Order Exception
The Board may exercise its discretion to grant an interlocutory appeal of a
decision which satisfies the collateral order exception to the traditional finality
rule.26 Such an order “finally determine[s] claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.”27 To meet the collateral order exception, the
moving party must establish the following criteria: (1) the order conclusively
determines the disputed question; (2) the order resolves an important issue which is
completely separate from the merits of the action; and (3) the order would be
effectively unreviewable on appeal from a final judgment.28
Complainant argues his appeal satisfies the collateral order exception
because OSHA’s alleged failure to fulfill a duty to notify Respondent of all of
Complainant’s allegations per 49 U.S.C. § 42121(b)(1) “is not part of the
investigation and is separate from the merits of the action but has a great and very
important impact on the outcome of the case.”29 Respondent counters Complainant’s
26 Gulden v. Exxon Mobil Corp., ARB No. 2023-0050, ALJ Nos. 2023-SOX-00021, -
00022, slip op. at 5-6 (ARB Feb. 29, 2024). “[E]ven if the order meets the [collateral order
exception] requirements, the Board’s decision to accept the petition remains discretionary.”
Id. at 6 (citing Secretary’s Order No. 01-2020, ¶ 5; Priddle v. United Airlines, ARB No.
2022-0006, ALJ No. 2020-AIR-00013, slip op. at 4 (ARB Mar. 21, 2022)).
27 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
28 Gulden, ARB No. 2023-0050, slip op. at 5 (citing Adm’r, Wage & Hour Div., U.S.
Dep’t of Lab. v. Goldstar Amusements, Inc., ARB No. 2022-0027, ALJ Nos. 2021-TNE-00027,
-00028, slip op. at 5 (ARB Sept. 30, 2022)). “This exception is ‘strictly construe[d]’ to avoid
‘unnecessarily protracte[d] litigation.’” Id. at 5 (quoting Goldstar Amusements, Inc., ARB
No. 2022-0027, slip op. at 5).
29 Comp. Br. at 12. While Complainant describes the procedures at 49 U.S.C. §
42121(b) as statutory duties unique to OSHA, AIR21 assigns them to the Secretary of
Labor. 49 U.S.C. § 42121(b). The implementing regulations delegate the initial receipt of
complaints to the OSHA Area Director and the function of notifying “the named person of
the filing of the complaint, of the allegations contained in the complaint . . .” to “the
Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to
whom he or she delegates authority under the Act.” 29 C.F.R. §§ 1979.101, 1979.103(c),
1979.104(a).

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interlocutory appeal does not meet the collateral order exception and the Petition
for Review should be denied.30
A. The Chief ALJ’s Order Does Not Conclusively Determine the Disputed
Question
Complainant has not demonstrated that the Chief ALJ’s order denying his
motion for a remand to OSHA conclusively determines the disputed question.31 The
implementing regulations of AIR21 and other whistleblower protection provisions
make clear that “. . . a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a determination to dismiss
was made in error” and that “[r]ather, if there otherwise is jurisdiction, the
administrative law judge shall hear the case on the merits.”32 As a result, the Chief
ALJ correctly determined that where “a complainant alleges that OSHA either
failed or refused to consider information in its investigation,” the appropriate course
of action is to proceed with a hearing on the merits.33
Indeed, the regular course of the hearing process allows for the failures or
omissions which may have occurred during the receipt or investigation of the
30 Resp. Br. at 2-3.
31 We are unable to assess the veracity of Complainant’s claim that the investigator
omitted a portion of his allegations. For the purpose of addressing the issues presented
here, however, we assume this occurred and that the investigator failed to notify
Respondent of a portion of Complainant’s allegations per 49 U.S.C. § 42121(b)(1) and to
investigate them per 49 U.S.C. § 42121(b)(2).
32 29 C.F.R. § 1979.109(a) (emphasis added). Regulations for the handling of
whistleblower complaints under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX), the
Surface Transportation Assistance Act of 1982 (STAA), the six environmental statutes and
Section 211 of the Energy Reorganization Act of 1974 (ERA), and Section 1558 of the
Affordable Care Act (ACA), for example, also preclude remand to OSHA for the completion
of an investigation or for additional findings reached on the basis of an alleged error and
make clear that “[r]ather, if there otherwise is jurisdiction, the ALJ will hear the case on
the merits or dispose of the matter without a hearing if the facts and circumstances
warrant.” 29 C.F.R. § 1980.109(c) (SOX); 29 C.F.R. § 1978.109(c) (STAA); 29 C.F.R. §
24.109(c) (ERA and the six environmental statutes); 29 C.F.R. § 1984.109(c) (ACA).
33 Order Denying Motion to Remand at 1-2. The Chief ALJ’s order here clearly states
that “the presiding ALJ should instead afford the complainant the opportunity for a de novo
hearing, after giving the parties proper notice and an adequate opportunity to conduct
discovery.” Id. at 2.

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complaint at OSHA to be cured at the hearing stage via an amended complaint
which supplements the OSHA-recorded allegations, as well as further investigation
into the merits of the complaint through the discovery process, the submission of
additional evidence, and de novo review.34 Consequently, the Board also interprets
adjudication as the ordinary mechanism by which respondents would be notified of
fleshed out allegations and through which additional investigation of complaints
can be achieved. 35 Accordingly, the Chief ALJ’s order does not conclusively
determine which allegations will constitute the complaint nor the Secretary’s
investigation of or examination of any evidence concerning the allegations at the
hearing level.
34 29 C.F.R. §§ 18.10-18.1104. For instance, “[t]he judge may allow parties to amend
and supplement their filings.” 29 C.F.R. § 18.36. And, “[a]t the [prehearing] conference, the
judge may consider and take appropriate actions on the following matters: (1) Formulating
and simplifying the issues . . . (2) Amending the papers that had framed the issues before
the matter was referred for hearing; (3) Obtaining admissions and stipulations about facts
and documents . . . (6) Controlling and scheduling discovery . . . (7) Identifying witnesses
and documents . . . .” 29 CFR § 18.44(d). “All relevant evidence is admissible . . . .” 29 C.F.R.
§ 18.402.
35 Barboza v. BNSF Ry. Co., ALJ No. 2017-FRS-00111, slip op. at 8 (ALJ Aug. 29,
2018), adopted and attached ARB No. 2018-0076 (ARB Dec. 19, 2019) (“In all, the
applicable pleading requirements are very informal. In cases being litigated before an ALJ,
the parties often learn the full scope of the case through amended pleadings, mandatory
disclosures, discovery, and other litigation processes. Hearings before the Department’s
ALJs are not subject to the formality of federal pleading requirements. Thus, as an integral
part of the regulatory scheme, a complainant may add allegations at OALJ that he or she
did not raise at OSHA. I therefore conclude that I have jurisdiction to consider all evidence
that Complainant puts before me on the motion.”) (citations omitted); see also Sylvester v.
Parexel Int’l, LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039, -00042, slip op. at 13
(ARB May 25, 2011) (“ALJs should freely grant parties the opportunity to amend their
initial filings to provide more information about their complaint before the complaint is
dismissed…”); Kerchner v. Grocery Haulers, Inc., ARB No. 2008-0066, ALJ No. 2007-STA-
00041, slip op. at 4-5 (ARB June 30, 2010) (finding the ALJ erred in remanding to OSHA to
investigate a blacklisting claim after OSHA identified a third party and not respondent as
the target of the claim despite STAA regulations then lacking a provision preventing
remand and finding the supplementation of pleadings to be sufficient means for correction
at OALJ); Billings v. Tenn. Valley Auth., ALJ No. 1991-ERA-00012, slip op. at 5 (ARB June
26, 1996) (“Wage-Hour’s findings were not binding on Billings since the regulations
accorded him a right to a de novo hearing on the merits of his complaint, including
providing testimony from his own witnesses and documentary evidence in support of his
allegations. Accordingly, any arguable flaws in Wage-Hour’s investigation or findings would
not adversely affect litigation of his case before the ALJ.”) (citations omitted). We thus see
no reason Complainant should not be able to add the allegations he asserts he already
raised vis-a-vis Respondent at OSHA to his complaint at OALJ.

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B. The Chief ALJ’s Order is Not Effectively Unreviewable on Appeal from a
Final Judgment
Complainant has also not shown that the Chief ALJ’s order denying his
motion to remand to OSHA is effectively unreviewable on appeal from a final
judgment. Should Complainant believe the hearing process (still in its preliminary
stage) fails to account for all his allegations against Respondent once the presiding
ALJ renders a final decision after a hearing on the merits, Complainant is free to
appeal that decision together with the Chief ALJ’s denial of his motion for remand
to the Board.
Complainant’s matter at OALJ thus “remains open, unfinished or
inconclusive, [so] there may be no intrusion by appeal” to the Board.36 As such, it is
unnecessary for us to evaluate whether the Chief Judge’s order denying the motion
to remand to OSHA resolves an important issue completely separate from the
merits of the action.37
For the foregoing reasons, we DENY Complainant’s Petition for Review.
36 Cohen, 337 U.S. at 546.
37 We recognize that OSHA has limited resources, a very high caseload, and some
element of discretion. It would be troubling, however, if OSHA in fact failed to document
all the reported allegations in the complaint, to notify Respondent of them, and to
investigate them, as Complainant maintains. Although such failings may be cured at the
hearing level, we would urge OSHA to take appropriate steps to ensure it is carrying out
the procedures for the Secretary of Labor’s receipt and investigation of complaints properly.

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SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge