I

106TH CONGRESS

1ST SESSION H. R. 953

To amend title 49, United States Code, to provide for the protection of

employees providing air safety information.

IN THE HOUSE OF REPRESENTATIVES

MARCH 3, 1999

Mr. BOEHLERT (for himself, Mr. CLYBURN, Mr. HOLDEN, Mr. WEYGAND, Mr.

DELAHUNT, Mr. MASCARA, Mr. WISE, Mr. MEEKS of New York, Mr.

FILNER, Mr. COSTELLO, Ms. CARSON, Mr. SHERMAN, Mr. SMITH of

Washington, Ms. DANNER, Mr. STUPAK, Mr. FROST, Mr. PAYNE, Ms.

WATERS, Mr. HINCHEY, Mr. MCNULTY, Mr. QUINN, Mr. METCALF, Mr.

KUCINICH, Mr. FARR of California, Mr. MARTINEZ, Mr. BONIOR, Mr.

INSLEE, Ms. DELAURO, Mr. HORN, Mr. STARK, Mr. GEJDENSON, Mr.

POMBO, Mrs. MCCARTHY of New York, Mr. FRANK of Massachusetts,

Mr. EVANS, Mr. LOBIONDO, Mrs. LOWEY, Mr. MCGOVERN, Mrs. CLAYTON, Mr. MICA, Mr. TOWNS, Mr. OLVER, Mr. NADLER, Mr. DOYLE, Ms.

LEE, Mr. BLAGOJEVICH, Mr. KLINK, Mr. TRAFICANT, Mr. SANDERS, Mr.

RUSH, Mr. SNYDER, Mr. BARCIA, Ms. KILPATRICK, Mr. TIERNEY, Mr.

RANGEL, Mrs. TAUSCHER, Mrs. THURMAN, Ms. BROWN of Florida, Mr.

GUTIERREZ, Mr. FORBES, Mr. DEFAZIO, Mr. PASCRELL, and Mr. ROTHMAN) introduced the following bill; which was referred to the Committee

on Transportation and Infrastructure

A BILL

To amend title 49, United States Code, to provide for the

protection of employees providing air safety information.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Aviation Safety Protec3 tion Act’’.

4 SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFE5 TY INFORMATION.

6 (a) IN GENERAL.—Chapter 421 of title 49, United

7 States Code, is amended by adding at the end the follow8 ing:

9 ‘‘SUBCHAPTER III—WHISTLEBLOWER

10 PROTECTION PROGRAM

11 ‘‘§ 42121. Protection of employees providing air safe12 ty information

13 ‘‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOY14 EES.—No air carrier or contractor or subcontractor of an

15 air carrier may discharge an employee of the air carrier

16 or the contractor or subcontractor of an air carrier or oth17 erwise discriminate against any such employee with re18 spect to compensation, terms, conditions, or privileges of

19 employment because the employee (or any person acting

20 pursuant to a request of the employee)—

21 ‘‘(1) provided, caused to be provided, or is

22 about to provide or cause to be provided to the Fed23 eral Government information relating to any viola24 tion or alleged violation of any order, regulation, or

25 standard of the Federal Aviation Administration or

26 any other provision of Federal law relating to air
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1 carrier safety under this subtitle or any other law of

2 the United States;

3 ‘‘(2) has filed, caused to be filed, or is about to

4 file or cause to be filed a proceeding relating to any

5 violation or alleged violation of any order, regulation,

6 or standard of the Federal Aviation Administration

7 or any other provision of Federal law relating to air

8 carrier safety under this subtitle or any other law of

9 the United States;

10 ‘‘(3) testified or will testify in such a proceed11 ing; or

12 ‘‘(4) assisted or participated or is about to as13 sist or participate in such a proceeding.

14 ‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE15 DURE.—

16 ‘‘(1) FILING AND NOTIFICATION.—

17 ‘‘(A) IN GENERAL.—In accordance with

18 this paragraph, a person may file (or have a

19 person file on behalf of that person) a com20 plaint with the Secretary of Labor if that per21 son believes that an air carrier or contractor or

22 subcontractor of an air carrier discharged or

23 otherwise discriminated against that person in

24 violation of subsection (a).
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1 ‘‘(B) REQUIREMENTS FOR FILING COM2 PLAINTS.—A complaint referred to in subpara3 graph (A) may be filed not later than 90 days

4 after an alleged violation occurs. The complaint

5 shall state the alleged violation.

6 ‘‘(C) NOTIFICATION.—Upon receipt of a

7 complaint submitted under subparagraph (A),

8 the Secretary of Labor shall notify the air car9 rier, contractor, or subcontractor named in the

10 complaint and the Administrator of the Federal

11 Aviation Administration of the—

12 ‘‘(i) filing of the complaint;

13 ‘‘(ii) allegations contained in the com14 plaint;

15 ‘‘(iii) substance of evidence supporting

16 the complaint; and

17 ‘‘(iv) opportunities that are afforded

18 to the air carrier, contractor, or sub19 contractor under paragraph (2).

20 ‘‘(2) INVESTIGATION; PRELIMINARY ORDER.—

21 ‘‘(A) IN GENERAL.—

22 ‘‘(i) INVESTIGATION.—Not later than

23 60 days after receipt of a complaint filed

24 under paragraph (1) and after affording

25 the person named in the complaint an op-
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1 portunity to submit to the Secretary of

2 Labor a written response to the complaint

3 and an opportunity to meet with a rep4 resentative of the Secretary to present

5 statements from witnesses, the Secretary

6 of Labor shall conduct an investigation

7 and determine whether there is reasonable

8 cause to believe that the complaint has

9 merit and notify in writing the complain10 ant and the person alleged to have commit11 ted a violation of subsection (a) of the Sec12 retary’s findings.

13 ‘‘(ii) ORDER.—Except as provided in

14 subparagraph (B), if the Secretary of

15 Labor concludes that there is reasonable

16 cause to believe that a violation of sub17 section (a) has occurred, the Secretary

18 shall accompany the findings referred to in

19 clause (i) with a preliminary order provid20 ing the relief prescribed under paragraph

21 (3)(B).

22 ‘‘(iii) OBJECTIONS.—Not later than

23 30 days after the date of notification of

24 findings under this paragraph, the person

25 alleged to have committed the violation or
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1 the complainant may file objections to the

2 findings or preliminary order and request a

3 hearing on the record.

4 ‘‘(iv) EFFECT OF FILING.—The filing

5 of objections under clause (iii) shall not op6 erate to stay any reinstatement remedy

7 contained in the preliminary order.

8 ‘‘(v) HEARINGS.—Hearings conducted

9 pursuant to a request made under clause

10 (iii) shall be conducted expeditiously and

11 governed by the Federal Rules of Civil

12 Procedure. If a hearing is not requested

13 during the 30-day period prescribed in

14 clause (iii), the preliminary order shall be

15 deemed a final order that is not subject to

16 judicial review.

17 ‘‘(B) REQUIREMENTS.—

18 ‘‘(i) REQUIRED SHOWING BY COM19 PLAINANT.—The Secretary of Labor shall

20 dismiss a complaint filed under this sub21 section and shall not conduct an investiga22 tion otherwise required under subpara23 graph (A) unless the complainant makes a

24 prima facie showing that any behavior de25 scribed in paragraphs (1) through (4) of
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1 subsection (a) was a contributing factor in

2 the unfavorable personnel action alleged in

3 the complaint.

4 ‘‘(ii) SHOWING BY EMPLOYER.—Not5 withstanding a finding by the Secretary

6 that the complainant has made the show7 ing required under clause (i), no investiga8 tion otherwise required under subpara9 graph (A) shall be conducted if the em10 ployer demonstrates, by clear and convinc11 ing evidence, that the employer would have

12 taken the same unfavorable personnel ac13 tion in the absence of that behavior.

14 ‘‘(iii) CRITERIA FOR DETERMINATION

15 BY SECRETARY.—The Secretary may de16 termine that a violation of subsection (a)

17 has occurred only if the complainant dem18 onstrates that any behavior described in

19 paragraphs (1) through (4) of subsection

20 (a) was a contributing factor in the unfa21 vorable personnel action alleged in the

22 complaint.

23 ‘‘(iv) PROHIBITION.—Relief may not

24 be ordered under subparagraph (A) if the

25 employer demonstrates by clear and con-
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1 vincing evidence that the employer would

2 have taken the same unfavorable personnel

3 action in the absence of that behavior.

4 ‘‘(3) FINAL ORDER.—

5 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE6 MENT AGREEMENTS.—

7 ‘‘(i) IN GENERAL.—Not later than

8 120 days after conclusion of a hearing

9 under paragraph (2), the Secretary of

10 Labor shall issue a final order that—

11 ‘‘(I) provides relief in accordance

12 with this paragraph; or

13 ‘‘(II) denies the complaint.

14 ‘‘(ii) SETTLEMENT AGREEMENT.—At

15 any time before issuance of a final order

16 under this paragraph, a proceeding under

17 this subsection may be terminated on the

18 basis of a settlement agreement entered

19 into by the Secretary of Labor, the com20 plainant, and the air carrier, contractor, or

21 subcontractor alleged to have committed

22 the violation.

23 ‘‘(B) REMEDY.—If, in response to a com24 plaint filed under paragraph (1), the Secretary

25 of Labor determines that a violation of sub-
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1 section (a) has occurred, the Secretary of Labor

2 shall order the air carrier, contractor, or sub3 contractor that the Secretary of Labor deter4 mines to have committed the violation to—

5 ‘‘(i) take action to abate the violation;

6 ‘‘(ii) reinstate the complainant to the

7 former position of the complainant and en8 sure the payment of compensation (includ9 ing back pay) and the restoration of terms,

10 conditions, and privileges associated with

11 the employment; and

12 ‘‘(iii) provide compensatory damages

13 to the complainant.

14 ‘‘(C) COSTS OF COMPLAINT.—If the Sec15 retary of Labor issues a final order that pro16 vides for relief in accordance with this para17 graph, the Secretary of Labor, at the request of

18 the complainant, shall assess against the air

19 carrier, contractor, or subcontractor named in

20 the order an amount equal to the aggregate

21 amount of all costs and expenses (including at22 torney and expert witness fees) reasonably in23 curred by the complainant (as determined by

24 the Secretary of Labor) for, or in connection
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1 with, the bringing of the complaint that re2 sulted in the issuance of the order.

3 ‘‘(4) FRIVOLOUS COMPLAINTS.—A complaint

4 brought under paragraph (1) that is found to be

5 frivolous or to have been brought in bad faith shall

6 be governed by rule 11 of the Federal Rules of Civil

7 Procedure.

8 ‘‘(5) REVIEW.—

9 ‘‘(A) APPEAL TO COURT OF APPEALS.—

10 ‘‘(i) IN GENERAL.—Not later than 60

11 days after a final order is issued under

12 paragraph (3), a person adversely affected

13 or aggrieved by that order may obtain re14 view of the order in the United States

15 court of appeals for the circuit in which

16 the violation allegedly occurred or the cir17 cuit in which the complainant resided on

18 the date of that violation.

19 ‘‘(ii) REQUIREMENTS FOR JUDICIAL

20 REVIEW.—A review conducted under this

21 paragraph shall be conducted in accord22 ance with chapter 7 of title 5. The com23 mencement of proceedings under this sub24 paragraph shall not, unless ordered by the
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1 court, operate as a stay of the order that

2 is the subject of the review.

3 ‘‘(B) LIMITATION ON COLLATERAL AT4 TACK.—An order referred to in subparagraph

5 (A) shall not be subject to judicial review in any

6 criminal or other civil proceeding.

7 ‘‘(6) ENFORCEMENT OF ORDER BY SECRETARY

8 OF LABOR.—

9 ‘‘(A) IN GENERAL.—If an air carrier, con10 tractor, or subcontractor named in an order

11 issued under paragraph (3) fails to comply with

12 the order, the Secretary of Labor may file a

13 civil action in the United States district court

14 for the district in which the violation occurred

15 to enforce that order.

16 ‘‘(B) RELIEF.—In any action brought

17 under this paragraph, the district court shall

18 have jurisdiction to grant any appropriate form

19 of relief, including injunctive relief and compen20 satory damages.

21 ‘‘(7) ENFORCEMENT OF ORDER BY PARTIES.—

22 ‘‘(A) COMMENCEMENT OF ACTION.—A per23 son on whose behalf an order is issued under

24 paragraph (3) may commence a civil action

25 against the air carrier, contractor, or sub-
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1 contractor named in the order to require com2 pliance with the order. The appropriate United

3 States district court shall have jurisdiction,

4 without regard to the amount in controversy or

5 the citizenship of the parties, to enforce the

6 order.

7 ‘‘(B) ATTORNEY FEES.—In issuing any

8 final order under this paragraph, the court may

9 award costs of litigation (including reasonable

10 attorney and expert witness fees) to any party

11 if the court determines that the awarding of

12 those costs is appropriate.

13 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im14 posed by this section shall be enforceable in a mandamus

15 proceeding brought under section 1361 of title 28.

16 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA17 TIONS.—Subsection (a) shall not apply with respect to an

18 employee of an air carrier, or contractor or subcontractor

19 of an air carrier who, acting without direction from the

20 air carrier (or an agent, contractor, or subcontractor of

21 the air carrier), deliberately causes a violation of any re22 quirement relating to air carrier safety under this subtitle

23 or any other law of the United States.
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1 ‘‘(e) CONTRACTOR DEFINED.—In this section, the

2 term ‘contractor’ means a company that performs safety3 sensitive functions by contract for an air carrier.’’.

4 (b) CONFORMING AMENDMENT.—The analysis for

5 chapter 421 of such title is amended by adding at the end

6 the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

‘‘42121. Protection of employees providing air safety information.’’.

7 (c) CIVIL PENALTY.—Section 46301(a)(1)(A) of such

8 title is amended by striking ‘‘subchapter II of chapter

9 421,’’ and inserting ‘‘subchapter II or III of chapter

10 421,’’.

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