I

104TH CONGRESS

2D SESSION H. R. 3187

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

employees who provide certain air safety information.

IN THE HOUSE OF REPRESENTATIVES

MARCH 28, 1996

Mr. CLYBURN 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 protection

for airline employees who provide certain air safety information.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Aviation Safety Protec5 tion Act of 1996’’.

6 SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFE7 TY INFORMATION.

8 (a) GENERAL RULE.—Chapter 421 of title 49, Unit9 ed States Code, is amended by adding at the end the fol10 lowing:
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1 ‘‘SUBCHAPTER III—WHISTLEBLOWER

2 PROTECTION PROGRAM

3 ‘‘§ 42121. Protection of employees providing air safety

4 information

5 ‘‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOY6 EES.—No air carrier or contractor or subcontractor of an

7 air carrier may discharge an employee or otherwise dis8 criminate against an employee with respect to compensa9 tion, terms, conditions, or privileges of employment be10 cause the employee (or any person acting pursuant to a

11 request of the employee)—

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

13 about to provide or cause to be provided to the Fed14 eral Government information relating to air safety

15 under this subtitle or any other law of the United

16 States;

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

18 file or cause to be filed a proceeding relating to air

19 carrier safety under this subtitle or any other law of

20 the United States;

21 ‘‘(3) testified or is about to testify in such a

22 proceeding; or

23 ‘‘(4) assisted or participated or is about to as24 sist or participate in such a proceeding.
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1 ‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE2 DURE.—

3 ‘‘(1) FILING AND NOTIFICATION.—A person

4 who believes that he has been discharged or other5 wise discriminated against by a person in violation

6 of subsection (a) may, within 180 days after such

7 violation occurs, file (or have any person file on his

8 behalf) a complaint with the Secretary of Labor al9 leging such discharge or discrimination. Upon re10 ceipt of such a complaint, the Secretary of Labor

11 shall notify the person named in the complaint and

12 the Administrator of the Federal Aviation Adminis13 tration of the filing of the complaint, of the allega14 tions contained in the complaint, of the substance of

15 evidence supporting the complaint, and of the oppor16 tunities which will be afforded to such person under

17 paragraph (2).

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

19 Within 60 days of receipt of a complaint filed under

20 paragraph (1) and after affording the person named

21 in the complaint of an opportunity to submit to the

22 Secretary of Labor a written response to the com23 plaint and an opportunity to meet with a representa24 tive of the Secretary to present statements from wit25 nesses, the Secretary of Labor shall conduct an in-
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1 vestigation and determine whether there is reason2 able cause to believe that the complaint has merit

3 and notify the complainant and the person alleged to

4 have committed a violation of subsection (a) of the

5 Secretary’s findings. If the Secretary of Labor con6 cludes that there is a reasonable cause to believe

7 that a violation of subsection (a) has occurred, the

8 Secretary shall accompany the Secretary’s findings

9 with a preliminary order providing the relief pre10 scribed by paragraph (3)(B). Within 30 days after

11 notification of findings under this paragraph, either

12 the person alleged to have committed the violation or

13 the complainant may file objections to the findings

14 or preliminary order, or both, and request a hearing

15 on the record. The filing of such objections shall not

16 operate to stay any reinstatement remedy contained

17 in the preliminary order. Such hearings shall be con18 ducted expeditiously. If a hearing is not requested

19 within such 30-day period, the preliminary order

20 shall be deemed a final order which is not subject to

21 judicial review.

22 ‘‘(3) FINAL ORDER.—

23 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE24 MENT AGREEMENTS.—Within 120 days after

25 conclusion of a hearing under paragraph (2),
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1 the Secretary of Labor shall issue a final order

2 providing the relief prescribed by this para3 graph or denying the complaint. At any time

4 before issuance of a final order, a proceeding

5 under this subsection may be terminated on the

6 basis of a settlement agreement entered into by

7 the Secretary of Labor, the complainant, and

8 the person alleged to have committed the viola9 tion.

10 ‘‘(B) REMEDY.—If, in response to a com11 plaint filed under paragraph (1), the Secretary

12 of Labor determines that a violation of sub13 section (a) has occurred, the Secretary of Labor

14 shall order the person who committed such vio15 lation to—

16 ‘‘(i) take affirmative action to abate

17 the violation;

18 ‘‘(ii) reinstate the complainant to his

19 former position together with the com20 pensation (including back pay), terms, con21 ditions, and privileges associated with his

22 employment; and

23 ‘‘(iii) provide compensatory damages

24 to the complainant.
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1 If such an order is issued under this paragraph,

2 the Secretary of Labor, at the request of the

3 complainant, shall assess against the person

4 against whom the order is issued a sum equal

5 to the aggregate amount of all costs and ex6 penses (including attorneys’ and expert witness

7 fees) reasonably incurred, as determined by the

8 Secretary of Labor, by the complainant for, or

9 in connection with, the bringing of the com10 plaint upon which the order was issued.

11 ‘‘(C) FRIVOLOUS COMPLAINTS.—If the

12 Secretary of Labor finds that a complaint

13 under paragraph (1) is frivolous or has been

14 brought in bad faith, the Secretary of Labor

15 may award to the prevailing employer a reason16 able attorney’s fee not exceeding $5,000.

17 ‘‘(4) REVIEW.—

18 ‘‘(A) APPEAL TO COURT OF APPEALS.—

19 Any person adversely affected or aggrieved by

20 an order issued under paragraph (3) may ob21 tain review of the order in the United States

22 Court of Appeals for the circuit in which the

23 violation, with respect to which the order was

24 issued, allegedly occurred or the circuit in which

25 the complainant resided on the date of such vio-
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1 lation. The petition for review must be filed

2 within 60 days from the issuance of the order

3 of the Secretary of Labor. Review shall conform

4 to chapter 7 of title 5, United States Code. The

5 commencement of proceedings under this sub6 paragraph shall not, unless ordered by the

7 court, operate as a stay of the order.

8 ‘‘(B) LIMITATION ON COLLATERAL AT9 TACK.—An order of the Secretary of Labor

10 with respect to which review could have been

11 obtained under subparagraph (A) shall not be

12 subject to judicial review in any criminal or

13 other civil proceeding.

14 ‘‘(5) ENFORCEMENT OF ORDER BY SECRETARY

15 OF LABOR.—Whenever a person has failed to comply

16 with an order issued under paragraph (3), the Sec17 retary of Labor may file a civil action in the United

18 States district court for the district in which the vio19 lation was found to occur to enforce such order. In

20 actions brought under this paragraph, the district

21 courts shall have jurisdiction to grant all appropriate

22 relief including, but not limited to, injunctive relief

23 and compensatory damages.

24 ‘‘(6) ENFORCEMENT OF ORDER BY PARTIES.—
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1 ‘‘(A) COMMENCEMENT OF ACTION.—A per2 son on whose behalf an order was issued under

3 paragraph (3) may commence a civil action

4 against the person to whom such order was is5 sued to require compliance with such order. The

6 appropriate United States district court shall

7 have jurisdiction, without regard to the amount

8 in controversy or the citizenship of the parties,

9 to enforce such order.

10 ‘‘(B) ATTORNEY FEES.—The court, in is11 suing any final order under this paragraph,

12 may award costs of litigation (including reason13 able attorney and expert witness fees) to any

14 party whenever the court determines such

15 award is appropriate.

16 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im17 posed by this section shall be enforceable in a mandamus

18 proceeding brought under section 1361 of title 28, United

19 States Code.

20 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA21 TIONS.—Subsection (a) of this section shall not apply with

22 respect to an employee of an air carrier who, acting with23 out direction from such air carrier (or such air carrier’s

24 agent), deliberately causes a violation of any requirement
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1 relating to air carrier safety under this subtitle or any

2 other law of the United States.’’.

3 (b) CONFORMING AMENDMENT.—The table of sec4 tions at the beginning of such chapter is amended by add5 ing at the end the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

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

6 SEC. 3. CIVIL PENALTY.

7 Section 46301(a)(1)(A) of title 49, United States

8 Code, is amended by striking ‘‘subchapter II of chapter

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

Æ