A federal appeals court on Thursday rejected Nicholas Air’s attempt to overturn a Department of Labor whistleblower ruling in favor of former captain-in-training Colin DeBuse. The case was formally brought by Corr Flight S., which employs personnel for Nicholas Air, and asked the U.S. Court of Appeals for the Fifth Circuit to set aside the department’s final decision under federal aviation whistleblower law. The court ruling denied the petition for review.
Safety Concerns
DeBuse was serving as an observer on a flight in 2019 when he reported safety concerns involving another Nicholas Air captain. According to the Labor Department’s review board, DeBuse said the captain, who was the only pilot qualified to fly the aircraft, left the cockpit while the aircraft was at flight level. DeBuse also raised concerns about required oxygen-mask use.
DeBuse later refused to continue training on passenger flights with the captain and told management he considered him unsafe. Nicholas Air declined to assign him to another instructor and placed him on unpaid leave after he continued to refuse the assignment.
“Based on your refusal to fly with Capt. Lee you will be placed on unpaid leave,” Nicholas Air stated in an employee warning letter quoted in the Labor Department’s decision.
DeBuse subsequently filed a complaint under AIR21, the federal law that provides whistleblower protections for aviation employees who report alleged violations of federal air-safety requirements.
Whistleblower Finding
An administrative law judge found that DeBuse’s safety report and his refusal to continue flying with the captain were protected activities and that the protected activity contributed to his unpaid suspension. The Labor Department’s Administrative Review Board upheld the ruling in December 2024. DeBuse was awarded about $2,700 in back pay for the 15-day suspension, plus interest, attorney fees and costs.
“The relevant evidence is such that a reasonable mind can find it adequate to support the ALJ’s conclusion,” the board wrote. “No more is required.”
DeBuse’s subsequent termination was no longer part of the case considered by the Fifth Circuit. An administrative law judge found that although his protected activity contributed to the firing, Nicholas Air proved it would have terminated him anyway after he did not sign an agreement for third-party simulator training. DeBuse did not appeal that finding.
Nicholas Air separately challenged the whistleblower finding and raised a constitutional objection involving 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.
