Hall v. Eastern Panhandle Anesthesia Associates Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
TIMOTHY HALL,
COMPLAINANT,
v.
EASTERN PANHANDLE
ANESTHESIA ASSOCIATES
INC., (EPAA), and CITY
HOSPITAL, INC., d/b/a
BERKELEY MEDICAL
CENTER (BMC),
RESPONDENTS.
ARB CASE NO. 2025-0034
ALJ CASE NO. 2023-AIR-00024
ALJ SEAN M. RAMALEY
DATE: September 15, 2026
Appearances:
For the Complainant:
Dr. Timothy Hall; Pro Se; Hedgesville, West Virginia
For the Respondents:
Travis F. Salisbury, Esq., and Brad D. Weiss, Esq.; Charapp & Weiss,
PLLC; Reston, Virginia
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge
ORDER DENYING RECONSIDERATION
This case arises under the employee protection provisions of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century1 (AIR21 or the Act)
and its implementing regulations.2 Timothy Hall (Complainant) worked for Eastern
1 49 U.S.C. § 42121.
2 29 C.F.R. Part 1979 (2023).

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Panhandle Anesthesia Associates, Inc. (EPAA) as an anesthesiologist. EPAA has a
professional services agreement with City Hospital, Inc., d/b/a Berkeley Medical
Center (BMC), and both EPAA and BMC are Respondents in this case. Complainant
filed a whistleblower complaint with the U.S. Department of Labor’s Occupational
Safety and Health Administration (OSHA), alleging Respondents violated AIR21 by
retaliating against him for reporting safety concerns. OSHA determined
Respondents are not covered by the Act. Complainant objected to OSHA’s findings
and requested a hearing before an Administrative Law Judge (ALJ). Both
Respondents filed motions for summary judgment, which the ALJ granted.
Complainant then petitioned the Administrative Review Board (ARB or Board) for
review, and the Board affirmed the ALJ’s order on July 9, 2026. On July 22, 2026,
Complainant filed a Petition for Rehearing (Petition), which we construe as a
Motion for Reconsideration of the Board’s decision. For the reasons set forth below,
we deny Complainant’s Petition.
DISCUSSION
The Board will reconsider a decision only under limited circumstances.3
These circumstances include but are not limited to whether the movant has
demonstrated: (i) material differences in fact or law from those presented to the
Board of which the moving party could not have known through reasonable
diligence, (ii) new material facts that occurred after the Board’s decision,
(iii) a change in the law after the Board’s decision, or (iv) failure to consider
material facts presented to the Board before its decision.4 We highlight that the
foregoing circumstances are not exclusive,5 and a complainant’s inability to satisfy
one is not necessarily fatal to reconsideration.6
3 Thomas v. DuPont Specialty Prods. USA, LLC, ARB No. 2023-0055, ALJ No. 2023-
WPC-00004, slip op. at 2 (ARB Mar. 11, 2025) (Order Denying Reconsideration) (citation
omitted).
4 Id. (citation omitted).
5 The ARB’s governing regulations establish our authority to issue final decisions,
but do not list specific grounds for reconsideration. We have granted reconsideration in
additional circumstances to protect the integrity of the review process, e.g. by remedying
procedural errors like mis-delivery or correcting erroneous timeliness decisions through
equitable tolling, or when issues occur related to the use of the Board’s electronic filing and
service system.
6 DeVoe v. Premier Trucking, LLC, ARB No. 2025-0056, ALJ No. 2024-STA-00090,
slip op. at 2 (ARB July 1, 2025) (citation omitted).

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Complainant does not assert grounds for reconsideration under procedural
fairness, nor does he claim any of the first three standard circumstances.
Complainant appears to rely solely on the ARB’s failure to consider material facts.
He asserts: (1) the Board did not consider evidence that Complainant qualifies as a
protected “employee” under AIR21;7 (2) the Board misapplied Cobb v. FedEx
Corporate Services Inc.,8 Evans v. Miami Valley Hospital,9 and overlooked evidence
that Respondents qualify as indirect air carriers;10 (3) the Board did not review
Complainant’s Section 11(c) claims;11 (4) the Board did not consider evidence that
EPAA, BMC, and WVUHS are liable as joint employers;12 (5) the Board
mischaracterized the relationship between EPAA, BMC, and air carrier
HealthNet;13 and (6) the Board did not consider evidence of temporal proximity or
the basis of Complainant’s termination, and thus performed an incomplete review.14
We disagree that Complainant’s arguments, viewed separately or in
combination, warrant reconsideration of our previous decision, and evaluate each
argument in the order they appear in his Petition.
First, Complainant argues the Board did not consider evidence that he
qualifies as a protected “employee” under AIR21, and the Act’s protections apply to
him because he is an individual that “could be affected by an air carrier.”15
But AIR21’s protections only consider retaliation by covered entities: at the time of
this case, that prohibition extended to “air carrier[s]” and “contractor[s] or
subcontractor[s] of an air carrier.”16 As we stated in our opinion and restate here,
Respondents are not air carriers or contractors or subcontractors of an air carrier.
7 Petition at 6-10, 22-24, 26-28.
8 Cobb v. FedEx Corp. Servs., Inc., ARB No. 2012-0052, ALJ No. 2010-AIR-00024
(ARB Dec. 13, 2013).
9 Evans v. Miami Valley Hosp., ARB Nos. 2007-0118, -0121, ALJ No. 2006-AIR-00022
(ARB June 30, 2009).
10 Petition at 10-16.
11 Id. at 16-17.
12 Id. at 18-22.
13 Id. at 22-25.
14 Id. at 25-26.
15 Id. at 6.
16 49 U.S.C. § 42121(a), (e).

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Complainant wrongly argues if Respondents are covered or Complainant is covered,
AIR21 coverage kicks in, but both Complainant and Respondents must be covered
under the Act.17 As we already determined, because Respondents are neither air
carriers nor contractors or subcontractors of an air carrier, we do not need to reach
the employee part of the coverage test to determine AIR21 does not apply. Thus,
we did not consider Complainant’s employee-status argument in our initial decision.
And we do not reconsider it here.
Second, Complainant challenges our determination that Respondents are not
air carriers.18 Complainant argues we overlooked the following evidence while
making our determination: (a) BMC manages a hospital helipad;19 (b) BMC is in
contact with air ambulance carrier HealthNet and prepares HealthNet patients;20
(c) WVUHS, the shared parent company of BMC and HealthNet, is responsible for
both subsidiaries’ financing and operational support;21 (d) these facts, along with the
Board’s previous holdings in Cobb and Evans, show that Respondents provide
services to and operationally integrate with air carriers which makes Respondents
“indirect air carriers.”22
Complainant’s arguments do not identify any error of law or fact warranting
reconsideration. In our D. & O., the Board considered the corporate and operational
relationships among BMC, EPAA, HealthNet, and their parent WVUHS,
distinguished the materially different roles played by Respondents here from FedEx
Services in Cobb or MVH in Evans, and thus declined to categorize Respondents as
air carriers or indirect air carriers.23 We do not repeat our previous analysis.
In his Petition, Complainant interprets Cobb as holding that operational or
financial “integration” that is “not merely passive” between an air carrier and a
17 D. & O. at 4 (citing 49 U.S.C. § 42121(a)).
18 Petition at 10-16.
19 Id. at 13.
20 Id. at 11, 13.
21 Id. at 14-17.
22 Id. at 11-13.
23 D. & O. at 4-7.

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third party endows the third party with indirect carrier status.24 We emphasize now
that our precedent in Cobb only extended the general definition of air carrier—
“those who hold out a transportation service to the public under which they utilize
the services of a direct carrier for the actual transportation by air”25—to include
“[subsidiary companies that provide] critical support to a parent company that
operates as an air carrier engaged in air transportation.”26 In Cobb, FedEx had
divvied up its air transportation service into different business segments. We held
that FedEx Services was an indirect air carrier to FedEx Express because it
provided critical functionality to FedEx Express, the direct air carrier segment.
The facts of Cobb are unique to FedEx and that case does not readily serve as
precedent for incongruous intercorporate relationships. While AIR21’s definitions
were intended to be broadly construed to give “full effect to the purpose underlying
Section 42121,” the Act’s broadness is not unlimited.27 In Aityahia v. Aviation
Academy of America, for example, the ARB affirmed that where a flight school did
not provide “vital, . . . essential”28 or “integral29 services necessary for [itself] or
another company to provide air transportation,” it could not be imputed as an
indirect air carrier despite its contact with and training of pilots generally.30
AIR21’s coverage cannot reasonably extend to every entity that integrates with air
carriers, their employees, or their consumers. Landlords, utility companies, dry
cleaners, caterers, and rental car companies all enable air carriers’ services,
24 Petition at 13 (“This operational integration, combined with WVUHS’s ownership
stake and financial guarantees for HealthNet, establishes that BMC indirectly provides air
transportation services.”).
25 Cobb, ARB No. 2012-0052, slip op. at 9 (citations omitted).
26 Aityahia v. Aviation Acad. of Am., ARB No. 2018-0028, ALJ No. 2017-AIR-00029,
slip op. at 5 (ARB Sept. 12, 2019) (per curiam) (adopting and attaching the ALJ’s Ruling on
Respondent’s Motion to Dismiss (ALJ Ruling)).
27 Cobb, ARB No. 2012-0052, slip op. at 13.
28 Aityahia, ARB No. 2018-0028, slip op. at 8-9 (ALJ Ruling at 5-6).
29 Distinguished from just integrated services.
30 Aityahia, ARB No. 2018-0028, slip op. at 7 (ALJ Ruling at 4) (distinguishing “a flight
training school with the sole purpose of educating student aircraft pilots” from services that
qualify an entity as an indirect air carrier. The latter includes “the business of providing
integral services necessary for [itself] or another company to provide air transportation,”
such as “information technology services, cargo trucking operations, and disaster and
security planning” to a parent company in FedEx Services’ case (citing Cobb, ARB No. 2012-
0052, slip op. at 11)).

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heliports’ operation, air passengers’ travel, or all the above.31 Without a limiting
principle, AIR21 would be all-encompassing, and the statutory categories of “air
carrier,” “contractor,” and “subcontractor” would collapse.
In Respondents’ case, activities like operating one of many physical landing
zones used by an air carrier, interacting with an air carrier’s personnel, or being
part of a parent system that also owns an air carrier are separate from essential
support of air transportation. In Cobb and Evans, subsidiaries’ flight information
technology services32 or operation of a flight ambulance service, respectively,
inextricably enabled air transportation.33 Here, BMC primarily operates a hospital,
and EPAA furnishes anesthesiology services to BMC.34 Respondents might
incidentally create departure locations, destinations, or contact with HealthNet’s
flights over the course of caring for patients.35 But Respondents neither hold
themselves or their services out to provide air transportation to the public. Rather,
Respondents are in the practice of medicine.
Congress reinforced this limiting principle in AIR21’s definition of
“contractor.” While Congress extended the Act’s prohibition against retaliation to
contractors and subcontractors of air carriers, it appreciated the expansive reach of
this language and provided a definition of contractor limited to a “person that
performs safety-sensitive functions by contract for an air carrier or commercial
operator.”36 As we stated in our decision, Complainant has not provided record
evidence of a safety-sensitive contract between BMC and/or EPAA and HealthNet,
31 See Aityahia, ARB No. 2018-0028, slip op. at 8-9 (ALJ Ruling at 5-6) (noting how a
general flight training school is still attenuated from integral business support related to
air transportation); see also wider jurisprudence delimiting parties’ coverage as “indirect
air carriers” though parties interact with air transportation, such as Arkin v. Trans Int’l
Airlines, Inc., 568 F. Supp. 11, 13 (E.D.N.Y. 1982) (holding a company responsible for
manufacturing, assembling, servicing, and inspecting airplane tires was not an indirect air
carrier under the FAA); Wilson v. United Air Lines, No. 94 C 5411, 1995 WL 530653, at *3
(N.D. Ill. Sept. 7, 1995) (finding a wheelchair accessibility service hired by an airport was
not an indirect air carrier under the Air Carrier Access Act).
32 Cobb, ARB No. 2012-0052, slip op. at 8.
33 Evans, ARB Nos. 2007-0118, -0121, slip op. at 9.
34 D. & O. at 7.
35 Petition at 13.
36 49 U.S.C. § 42121(e) (emphasis added); D. & O. at 8.

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whereby BMC and/or EPAA provided safety-sensitive functions to HealthNet.37
For reasons discussed in our D. & O., we reject that simply sharing a WVUHS
affiliation inherits AIR21 coverage from HealthNet to Respondents.38 We emphasize
our reasoning is consistent with the general legal principle that “the mere existence
of . . . common management and ownership are not sufficient to justify treating a
parent corporation and its subsidiary as a single employer.”39
Third, Complainant asserts that this case is cognizable pursuant to Section
11(c) of the OSH Act, 29. U.S.C. § 660(c).40 This argument also lacks merit. Section
11(c)(2) of the OSH Act states:
Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation
of this subsection may, within 30 days after such violation
occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the
Secretary shall cause such investigation to be made as he
deems appropriate. If upon such investigation, the
Secretary determines that the provisions of this subsection
have been violated, he shall bring an action in any
appropriate United States district court against such
person. If any such action the United States district courts
shall have jurisdiction, for cause shown to restrain
violations of paragraph (1) of this subsection and order all
appropriate relief including rehiring or reinstatement of
the employee to his former position with back pay.[41]
37 D. & O. at 8.
38 See D. & O. at 7 n.27, 8 n.35; Aityahia, ARB No. 2018-0028, slip op. at 8 (ALJ
decision at 5); Union Telecom, LLC v. United States, 144 Fed. Cl. 477, 488 (2019), aff’d No.
2020-1052, 2021 WL 3086212 (Fed. Cir. 2021); Greene v. Long Island R.R. Co., 99 F. Supp.
2d 268, 272 (E.D.N.Y. 2000), aff’d 280 F.3d 224 (2d Cir. 2002).
39 Aityahia, ARB No. 2018-0028, slip op. at 8 (ALJ Ruling at 5) (citing Lusk v. Foxmeyer
Health Corp., 129 F.3d 773, 778 (5th Cir. 1997)).
40 Petition at 16-17.
41 29 U.S.C. § 660(c)(2).

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The section does not afford a private remedy for actions covered by the OSH
Act.42 Further, Section 11(c) is not one of the provisions to which the ARB has been
delegated review authority.43 Thus, Complainant’s Section 11(c) claim is not subject
to OALJ or ARB jurisdiction, and any omission of that claim by the OALJ or the
ARB was harmless.
Fourth, fifth, and sixth, Complainant argues the Board did not consider
evidence that Respondents and WVUHS are joint employers;44 the Board
mischaracterized the relationship between Respondents and HealthNet;45 and the
Board did not consider issues of temporal proximity or the basis of Complainant’s
termination and thus performed an incomplete review.46 Arguments four and five do
not warrant reconsideration because they do not alter our dispositive coverage
analysis outlined in our initial decision. Again, Complainant asserts that the
regulatory definition of “employee” extends to “an individual whose employment
could be affected by an air carrier.” But as we explained above and in our D. & O.,
the named Respondents are EPAA and BMC. Neither WVUHS nor HealthNet are
named. Joint employer status and the regulatory definition of employee which
Complainant cites are ways that liability can attach to covered air carriers or
contractors named as parties, but neither citation can enlarge AIR21’s coverage to
Respondents BMC and EPAA who are otherwise not covered under the Act.47 As we
have repeated before, BMC’s affiliation with WVUHS and WVUHS’s alleged
ownership interest in HealthNet do not make BMC an air carrier. EPAA’s
professional services agreement with BMC places EPAA still further from the
42 Gomez v. Wilson, 2013 WL 4099466, at *3 (D. Neb. Aug. 13, 2013); Ellis v. Chase
Commc’ns, Inc., 63 F.3d 473, 476-77 (6th Cir. 1995) (“OSHA does not create a private right
of action.”); Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975) (“The only
provision in the statute which addresses itself to a private remedy clearly indicates that
Congress did not intend OSHA to create a new action for damages in favor of employees.”).
43 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).
44 Petition at 18-22.
45 Id. at 22-25.
46 Id. at 25-26.
47 Printz v. STS Aviation Grp., ARB No. 2022-0045, ALJ No. 2021-AIR-00013, slip op.
at 18, 24-25 (ARB Dec. 15, 2023) (explaining that “joint employer status is another way that
liability can attach” to a covered party, but that “[the] statute names the entities who are
prohibited from engaging in retaliation: an air carrier or contractor or subcontractor,” and
not more than that scope).

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alleged aviation activity. As for our characterization of Respondents’ relationship
with HealthNet, for reasons enumerated against Complainant’s second argument,
Complainant does not demonstrate BMC and HealthNet are more than loosely
affiliated subsidiaries of WVUHS. Respondents’ interactions with HealthNet do not
rise to the level of essential services to air transportation necessary to change our
indirect air carrier analysis.
We omit discussion of temporal proximity or adverse action because we find
no coverage for named Respondents, and so, do not reach the merits of
Complainant’s AIR21 retaliation claim. That analysis arises only if his claim is
brought against covered parties. Thus, none of Complainant’s arguments, alone or
in total, demonstrate grounds for reconsideration.
Accordingly, the Board DENIES Complainant’s Motion for Reconsideration.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge