Fifth Circuit Denies Corr Flight Petition, Upholding Whistleblower Award for Nicholas Air Pilot

The U.S. Court of Appeals for the Fifth Circuit has denied a petition for review filed by Corr Flight S., doing business as Nicholas Air, leaving in place an administrative order awarding back pay, post-judgment interest, and attorney's fees to former captain-in-training Colin DeBuse.

Corr Flight hired DeBuse on October 15, 2018, placing him in an observer role in which he traveled aboard aircraft as a technical passenger until he could qualify as a second-in-command or pilot-in-command. During October 2019, DeBuse flew as an observer with captain Stacey Lee and reported that Lee had committed multiple safety violations: failing to record mechanical issues in the aircraft logbook, leaving DeBuse alone in the cockpit, and not ensuring that a crew member wore an oxygen mask. On October 16, 2019, DeBuse telephoned flight dispatcher Cody Shears, and on October 19 he informed chief pilot Nick James of his safety concerns about Lee leaving the flight deck.

When DeBuse told management he would not fly with Lee, managers said they had addressed the violation with Lee and instructed DeBuse to either continue training with Lee or resign. DeBuse refused both options. Corr Flight then suspended DeBuse without pay and offered him third-party simulator training subject to a training agreement with a November 27 deadline. DeBuse declined the offer, stating he regarded it as an attempt to force him out.

DeBuse filed a whistleblower complaint with the Occupational Safety and Health Administration, which initially dismissed it, finding that his refusal to accept the training assignment was not protected activity. He appealed to the Department of Labor Office of Administrative Law Judges. An administrative law judge found that his report of Lee's safety violation was protected activity that contributed to his unpaid suspension and awarded back pay, post-judgment interest, and attorney's fees. Following a limited remand from the Administrative Review Board, the judge further determined that DeBuse's refusal to fly with Lee also constituted protected activity and reaffirmed the award. The Administrative Review Board affirmed the order and denied Corr Flight's motion for reconsideration.

Corr Flight petitioned the Fifth Circuit for review, challenging only the finding that DeBuse's refusal to fly constituted protected activity, while not challenging the separate finding that his initial safety report to management was protected activity. The court ruled that by failing to contest the safety-report finding in its briefs, Corr Flight had forfeited that issue on petition for review. Because that unchallenged finding independently supported the administrative law judge's order, the court denied the petition without addressing the refusal-to-train rationale.

This case belongs to a familiar category in aviation whistleblower disputes: an employer contests one legal theory behind an award while leaving a second, independently sufficient theory unchallenged, and loses on that omission alone. Whistleblower claims under programs like AIR21 often rest on multiple protected-activity findings, and an agency or court needs only one surviving finding to sustain the entire remedy.

For operators, the practical lesson is procedural: every distinct finding that could support an award has to be contested on appeal, because an appellate court will not rescue an argument a petitioner did not make. Whether Corr Flight's underlying safety-report finding would have survived a direct challenge was never tested, since the forfeiture made that question moot.

What remains to be seen is whether Corr Flight seeks further review or satisfies the award, and whether the underlying safety allegations against captain Stacey Lee prompt any separate regulatory scrutiny.