Aziz Aityahia v. Mesa Airlines, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AZIZ AITYAHIA,
Petitioner,
v.
MESA AIRLINES, INC.; et al.,
Respondents.
No. 20-72341
ARB Case No. 2019-068
MEMORANDUM*
On Petition for Review of an Order of the
Department of Labor
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Aziz Aityahia petitions pro se for review of the Department of Labor’s
Administrative Review Board’s (“ARB”) final decision and order dismissing his
whistleblower complaint under the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (“AIR21”). We have jurisdiction under 49 U.S.C.
§ 42121(b)(4)(A). We review the ARB’s decision in accordance with the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Administrative Procedure Act (“APA”), “under which the ARB’s legal conclusions
must be sustained unless they are arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, and its findings of fact must be sustained
unless they are unsupported by substantial evidence in the record as a whole.”
Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1121 (9th Cir. 2004). We deny
the petition.
The ARB correctly dismissed Aityahia’s AIR21 claim based on any
unfavorable personnel actions taken by respondent Mesa Airlines in 2013 because
his claim was untimely and Aityahia failed to show that equitable principles
applied to toll the limitations period. See 49 U.S.C. § 42121(b)(1) (requiring an
administrative complaint be filed not later than 90 days after an alleged AIR21
violation occurs); Coppinger-Martin v. Solis, 627 F.3d 745, 750-51 (9th Cir. 2010)
(setting forth doctrines of equitable tolling and equitable estoppel).
The ARB correctly dismissed Aityahia’s AIR21 claim based on Mesa
Airlines’ refusal to rehire him in 2017 because Aityahia failed to demonstrate that
a violation occurred. See 49 U.S.C. § 42121(b)(2)(B) (setting forth requirements
for AIR21 claim); Nat’l Mining Ass’n v. Zinke, 877 F.3d 845, 866 (9th Cir. 2017)
(the standard of review under the APA is “highly deferential, presuming the
agency action to be valid and affirming the agency action if a reasonable basis
exists for its decision” (citation and internal quotation marks omitted)).

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We reject as unsupported by the record Aityahia’s contention that the
Department of Labor discriminated against him on the basis of his national origin.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Aityahia’s motion to extend the time to file his reply brief (Docket Entry No.
40), motion to file an oversized reply brief (Docket Entry No. 41), and motion to
file an oversized supplemental brief (Docket Entry No. 42) are granted. The Clerk
will file the reply brief submitted at Docket Entry No. 44 and supplemental brief
submitted at Docket Entry No. 43.
Aityahia’s motion to modify the arbitration award (Docket Entry No. 21) is
denied.
Mesa Airlines’ request for costs on appeal, set forth in its answering brief, is
denied without prejudice to filing a timely bill of costs. See Fed. R. App. P. 39.
PETITION FOR REVIEW DENIED.

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