Fifth Circuit Rejects Nicholas Air Appeal in AIR21 Whistleblower Case

The U.S. Court of Appeals for the Fifth Circuit on Thursday denied a petition brought by Corr Flight S., which employs personnel for Nicholas Air, seeking to set aside a Department of Labor whistleblower decision in favor of former captain-in-training Colin DeBuse. The petition was filed under AIR21, the federal law protecting aviation employees who report alleged violations of federal air-safety requirements.

DeBuse was serving as an observer on a 2019 flight when he reported safety concerns involving a Nicholas Air captain. According to the Labor Department's Administrative Review Board, DeBuse said the captain — the only pilot qualified to fly the aircraft — left the cockpit while the aircraft was at flight level, and he also raised concerns about required oxygen-mask use. He later refused to continue training on passenger flights with that captain and told management he considered him unsafe. Nicholas Air declined to assign DeBuse to another instructor and placed him on unpaid leave; an employee warning letter quoted in the Labor Department's decision stated, "Based on your refusal to fly with Capt. Lee you will be placed on unpaid leave."

An administrative law judge found that DeBuse's safety report and his refusal to continue flying with the captain were protected activities, and that this protected activity contributed to his unpaid suspension. The Labor Department's Administrative Review Board upheld that ruling in December 2024, awarding DeBuse approximately $2,700 in back pay for the 15-day suspension, plus interest, attorney fees, and costs. DeBuse's subsequent termination was not part of the case before the Fifth Circuit; a separate administrative law judge found that although his protected activity contributed to the firing, Nicholas Air demonstrated it would have terminated him regardless after he declined to sign an agreement for third-party simulator training. Nicholas Air also raised a constitutional objection concerning protections against removal of the administrative law judge who heard the case, but the Fifth Circuit found no basis to overturn the Labor Department's decision.

Cases like this test how far AIR21's protected-activity standard extends beyond formal safety reports to include a crewmember's refusal to keep flying with a specific captain. The Fifth Circuit's denial confirms that an administrative law judge and the Labor Department's Administrative Review Board can treat that refusal, alongside the underlying report, as protected conduct that triggers liability when discipline follows.

The distinction the case draws between the suspension and the termination also matters for how operators structure discipline after a safety complaint. The suspension was found unlawful because protected activity contributed to it, while the termination survived scrutiny because Nicholas Air showed it would have happened anyway over an unrelated training-agreement dispute — a reminder that a later, independently justified personnel action is not automatically shielded or automatically tainted by an earlier protected report.

What remains to be seen is whether Nicholas Air or Corr Flight S. pursue further review of the constitutional claim regarding the administrative law judge's removal protections, an argument the Fifth Circuit rejected without disturbing the underlying whistleblower finding.