Unreported / Non-Citable
Background
Darren James Kossen, proceeding without a lawyer, petitioned the Ninth Circuit for review of a Department of Labor Administrative Review Board decision. The Board had affirmed an Administrative Law Judge's dismissal of Kossen's complaint under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21, codified at 49 U.S.C. § 42121 et seq. Kossen had alleged that Empire Airlines, Inc. retaliated against him for protected activity, but the ALJ concluded the airline proved it would have terminated him anyway.
The case reached the court as a petition for review of the agency's final order, docketed as No. 23-2299. The memorandum reflects that the matter was submitted on October 15, 2026, and the panel unanimously concluded it was suitable for decision without oral argument under Federal Rule of Appellate Procedure 34(a)(2). The court exercised jurisdiction under 49 U.S.C. § 42121(b)(4)(A), which authorizes direct appellate review of AIR21 orders. The panel consisted of Circuit Judges O'Scannlain, Silverman, and N.R. Smith.
The Court’s Holding
The court reviewed the Board's decision under the Administrative Procedure Act, sustaining legal conclusions unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and upholding factual findings supported by substantial evidence in the record as a whole. Applying that deferential standard, the panel held that substantial evidence supported the agency's determination that Empire Airlines established by clear and convincing evidence that it would have terminated Kossen's employment absent his protected activity. The court emphasized that credibility determinations by the ALJ receive great deference and are upheld unless inherently incredible or patently unreasonable.
The panel also rejected Kossen's challenges to the ALJ's evidentiary rulings, finding no abuse of discretion or prejudice. It further held that Kossen failed to establish actual bias that would disqualify the ALJ, noting that actual bias must be shown to disqualify an administrative law judge. Finally, the court declined to consider arguments Kossen failed to raise before the Board or in his opening brief, citing 29 C.F.R. § 1979.110(a) and Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). The petition for review was denied.
Key Takeaways
- The Ninth Circuit denied Darren Kossen's pro se petition for review of a Department of Labor order dismissing his AIR21 whistleblower complaint against Empire Airlines.
- Substantial evidence supported the agency's finding that the airline proved by clear and convincing evidence it would have terminated Kossen regardless of his protected activity.
- The court gave great deference to the ALJ's credibility determinations, upholding them because they were not inherently incredible or patently unreasonable.
- Kossen failed to show abuse of discretion or prejudice from the ALJ's evidentiary rulings, and he did not establish actual bias requiring the ALJ's disqualification.
- Arguments not raised before the Administrative Review Board or in the opening brief were waived and not considered on appeal.
Why It Matters
This unpublished memorandum reinforces the high bar employees face when challenging AIR21 dismissals in the Ninth Circuit. Employers can defeat retaliation claims by presenting clear and convincing evidence of legitimate, independent reasons for termination, and appellate courts will defer to agency credibility findings absent glaring error. The decision also underscores the importance of preserving arguments at every stage, as the court refused to consider issues raised for the first time on appeal.
The ruling illustrates the narrow scope of appellate review under the Administrative Procedure Act in whistleblower retaliation cases. By affirming the agency's application of the two-part AIR21 analysis and declining to revisit waived arguments, the panel confirmed that procedural preservation and deference to administrative fact-finding remain decisive in this context.