Metropolitan News-Enterprise


Tuesday, August 24, 2010


Page 3


Federal Agency Ruling Bars Whistleblower Suit, Supreme Court Rules


By a MetNews Staff Writer


A former airline employee whose whistleblower complaint was rejected in federal administrative proceedings, and who failed to request a de novo hearing available under federal law, is barred from suing under California law based on the same allegations, the state Supreme Court ruled yesterday.

In a 4-3 decision, the high court held that collateral estoppel precludes Kevin Murray from proceeding with his action against Alaska Airlines.

Murray worked at Alaska as a quality assurance auditor. He claims that the company outsourced his position and did not rehire him because of safety concerns he brought to the attention of the Federal Aviation Administration.

He filed a whistleblower complaint with the U.S. Department of Labor under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, commonly referred to as AIR 21. In 2005, he was notified that the department had investigated his allegations but found no connection between his termination and his involvement in protected activity.

The notice advised him that he had 30 days to request an administrative hearing and that the decision would be final and not subject to judicial review if he failed to do so.

About two months later, he sued the airline in state court, claiming that he was terminated in violation of public policy. The airline removed the action to federal court, based on diversity jurisdiction, and the district judge granted summary judgment in favor of the airline based on collateral estoppel.

Murray appealed to the Ninth U.S. Circuit Court of Appeals, which certified the question of collateral estoppel to the state high court.

Justice Marvin Baxter, joined by Justices Carol Corrigan, Carlos Moreno, and Ming Chin, said that Murray’s action was barred under California’s approach to collateral estoppel.

California applies the doctrine to the final decision of an administrative agency, Baxter explained, if the party against whom the doctrine is sought to be invoked had an adequate opportunity to litigate the issue in the administrative forum. The right to a de novo hearing before an administrative law judge, and to judicial review of the ALJ’s decision, under AIR 21 provides such an opportunity, the justice concluded.

Werdegar, joined in dissent by Chief Justice Ronald M. George and Justice Joyce L. Kennard, said the opportunity for a de novo hearing did not provide Murray with an adequate opportunity because of the nature of the underlying investigative process.

“In the course of the investigation of his administrative complaint, he received no hearing,” the dissenting justice noted. “He was not contacted to provide evidence.  He was not permitted to confront the witnesses against him, to review the evidence submitted by Alaska, or to make oral or written arguments before findings were made.  No testimony was submitted under oath and no record was prepared.”

Under those circumstances, Werdegar argued, the majority’s holding that the plaintiff “may be collaterally estopped based on the resulting administrative findings, and forever barred from seeking redress, because he failed to appeal those findings and have them set aside,” is flawed.

The case is Murray v. Alaska Airlines, Inc., 10 S.O.S. 4962.


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