II

104TH CONGRESS

2D SESSION S. 2168

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

employees who provide certain air safety information, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 30, 1996

Mr. KERRY introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

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

for airline employees who provide certain air safety information, and for other purposes.

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 new subchapter:
2

•S 2168 IS

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 of the air carrier

8 or the contractor or subcontractor of an air carrier or oth9 erwise discriminate against any such employee with re10 spect to compensation, terms, conditions, or privileges of

11 employment because the employee (or any person acting

12 pursuant to a request of the employee)—

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

14 about to provide or cause to be provided to the Fed15 eral Government information relating to air safety

16 under this subtitle or any other law of the United

17 States;

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

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

20 carrier safety under this subtitle or any other law of

21 the United States;

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

23 proceeding; or

24 ‘‘(4) assisted or participated or is about to as25 sist or participate in such a proceeding.
3

•S 2168 IS

1 ‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE2 DURE.—

3 ‘‘(1) FILING AND NOTIFICATION.—

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

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

6 person file on behalf of that person) a com7 plaint with the Secretary of Labor if that per8 son believes that an air carrier or contractor or

9 subcontractor of an air carrier discharged or

10 otherwise discriminated against that person in

11 violation of subsection (a).

12 ‘‘(B) REQUIREMENTS FOR FILING COM13 PLAINTS.—A complaint referred to in subpara14 graph (A) may be filed not later than 180 days

15 after an alleged violation occurs. The complaint

16 shall state the alleged violation.

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

18 complaint submitted under subparagraph (A),

19 the Secretary of Labor shall notify the air car20 rier, contractor, or subcontractor named in the

21 complaint and the Administrator of the Federal

22 Aviation Administration of the—

23 ‘‘(i) filing of the complaint;

24 ‘‘(ii) allegations contained in the com25 plaint;
4

•S 2168 IS

1 ‘‘(iii) substance of evidence supporting

2 the complaint; and

3 ‘‘(iv) opportunities that are afforded

4 to the air carrier, contractor, or sub5 contractor under paragraph (2).

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

7 ‘‘(A) IN GENERAL.—Not later than 60

8 days after receiving a complaint under para9 graph (1), and after affording the air carrier,

10 contractor, or subcontractor named in the com11 plaint the opportunities specified in subpara12 graph (B), the Secretary of Labor shall conduct

13 an investigation to determine whether there is

14 reasonable cause to believe that a complaint

15 submitted under this subsection has merit.

16 ‘‘(B) OPPORTUNITY FOR RESPONSE.—Be17 fore the date specified in subparagraph (A), the

18 Secretary of Labor shall afford the air carrier,

19 contractor, or subcontractor named in the com20 plaint an opportunity to—

21 ‘‘(i) submit to the Secretary of Labor

22 a written response to the complaint; and

23 ‘‘(ii) meet with a representative of the

24 Secretary of Labor to present statements

25 from witnesses.
5

•S 2168 IS

1 ‘‘(C) NOTIFICATION.—Upon completion of

2 an investigation under subparagraph (A), the

3 Secretary of Labor shall notify the complainant

4 and the air carrier, contractor, or subcontractor

5 alleged to have committed a violation of sub6 section (a) of the findings of the investigation.

7 ‘‘(D) ORDERS.—If, on the basis of the in8 vestigation conducted under this paragraph, the

9 Secretary of Labor concludes that there is a

10 reasonable cause to believe that a violation of

11 subsection (a) has occurred, the Secretary

12 shall—

13 ‘‘(i) issue a preliminary order provid14 ing the relief prescribed by paragraph

15 (3)(B); and

16 ‘‘(ii) provide a copy of the order to the

17 parties specified in subparagraph (C).

18 ‘‘(E) OBJECTIONS.—Not later than 30

19 days after receiving a notification under sub20 paragraph (C), the air carrier, contractor, or

21 subcontractor alleged to have committed a vio22 lation in a complaint filed under this subsection

23 or the complainant may file an objection to the

24 findings of an investigation conducted under

25 this paragraph or a preliminary order issued
6

•S 2168 IS

1 under this paragraph and request a hearing on

2 the record. The filing of an objection under this

3 subparagraph shall not operate to stay any re4 instatement remedy contained in a preliminary

5 order issued under this paragraph.

6 ‘‘(F) HEARINGS.—A hearing requested

7 under this paragraph shall be conducted expedi8 tiously.

9 ‘‘(G) FINAL ORDER.—If no hearing is re10 quested by the date specified in subparagraph

11 (E), a preliminary order shall be considered to

12 be a final order that is not subject to judicial

13 review.

14 ‘‘(3) FINAL ORDER.—

15 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE16 MENT AGREEMENTS.—

17 ‘‘(i) IN GENERAL.—Not later than

18 120 days after conclusion of a hearing

19 under paragraph (2), the Secretary of

20 Labor shall issue a final order that—

21 ‘‘(I) provides relief in accordance

22 with this paragraph; or

23 ‘‘(II) denies the complaint.

24 ‘‘(ii) SETTLEMENT AGREEMENT.—At

25 any time before issuance of a final order
7

•S 2168 IS

1 under this paragraph, a proceeding under

2 this subsection may be terminated on the

3 basis of a settlement agreement entered

4 into by the Secretary of Labor, the com5 plainant, and the air carrier, contractor, or

6 subcontractor alleged to have committed

7 the violation.

8 ‘‘(B) REMEDY.—If, in response to a com9 plaint filed under paragraph (1), the Secretary

10 of Labor determines that a violation of sub11 section (a) has occurred, the Secretary of Labor

12 shall order the air carrier, contractor, or sub13 contractor that the Secretary of Labor deter14 mines to have committed the violation to—

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

16 ‘‘(ii) reinstate the complainant to the

17 former position of the complainant and en18 sure the payment of compensation (includ19 ing back pay) and the restoration of terms,

20 conditions, and privileges associated with

21 the employment; and

22 ‘‘(iii) provide compensatory damages

23 to the complainant.

24 ‘‘(C) COSTS OF COMPLAINT.—If the Sec25 retary of Labor issues a final order that pro-
8

•S 2168 IS

1 vides for relief in accordance with this para2 graph, the Secretary of Labor, at the request of

3 the complainant, shall assess against the air

4 carrier, contractor, or subcontractor named in

5 the order an amount equal to the aggregate

6 amount of all costs and expenses (including at7 torney and expert witness fees) reasonably in8 curred by the complainant (as determined by

9 the Secretary of Labor) for, or in connection

10 with, the bringing of the complaint that re11 sulted in the issuance of the order.

12 ‘‘(D) FRIVOLOUS COMPLAINTS.—If the

13 Secretary of Labor finds that a complaint

14 brought under paragraph (1) is frivolous or was

15 brought in bad faith, the Secretary of Labor

16 may award to the prevailing employer a reason17 able attorney fee in an amount not to exceed

18 $5,000.

19 ‘‘(4) REVIEW.—

20 ‘‘(A) APPEAL TO COURT OF APPEALS.—

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

22 days after a final order is issued under

23 paragraph (3), a person adversely affected

24 or aggrieved by that order may obtain re25 view of the order in the United States
9

•S 2168 IS

1 court of appeals for the circuit in which

2 the violation allegedly occurred or the cir3 cuit in which the complainant resided on

4 the date of that violation.

5 ‘‘(ii) REQUIREMENTS FOR JUDICIAL

6 REVIEW.—A review conducted under this

7 paragraph shall be conducted in accord8 ance with chapter 7 of title 5. The com9 mencement of proceedings under this sub10 paragraph shall not, unless ordered by the

11 court, operate as a stay of the order that

12 is the subject of the review.

13 ‘‘(B) LIMITATION ON COLLATERAL AT14 TACK.—An order referred to in subparagraph

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

16 criminal or other civil proceeding.

17 ‘‘(5) ENFORCEMENT OF ORDER BY SECRETARY

18 OF LABOR.—

19 ‘‘(A) IN GENERAL.—If an air carrier, con20 tractor, or subcontractor named in an order is21 sued under paragraph (3) fails to comply with

22 the order, the Secretary of Labor may file a

23 civil action in the United States district court

24 for the district in which the violation occurred

25 to enforce that order.
10

•S 2168 IS

1 ‘‘(B) RELIEF.—In any action brought

2 under this paragraph, the district court shall

3 have jurisdiction to grant any appropriate form

4 of relief, including injunctive relief and compen5 satory damages.

6 ‘‘(6) ENFORCEMENT OF ORDER BY PARTIES.—

7 ‘‘(A) COMMENCEMENT OF ACTION.—A per8 son on whose behalf an order is issued under

9 paragraph (3) may commence a civil action

10 against the air carrier, contractor, or sub11 contractor named in the order to require com12 pliance with the order. The appropriate United

13 States district court shall have jurisdiction,

14 without regard to the amount in controversy or

15 the citizenship of the parties, to enforce the

16 order.

17 ‘‘(B) ATTORNEY FEES.—In issuing any

18 final order under this paragraph, the court may

19 award costs of litigation (including reasonable

20 attorney and expert witness fees) to any party

21 if the court determines that the awarding of

22 those costs is appropriate.

23 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im24 posed by this section shall be enforceable in a mandamus

25 proceeding brought under section 1361 of title 28.
11

•S 2168 IS

1 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA2 TIONS.—Subsection (a) shall not apply with respect to an

3 employee of an air carrier, or contractor or subcontractor

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

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

6 the air carrier), deliberately causes a violation of any re7 quirement relating to air carrier safety under this subtitle

8 or any other law of the United States.’’.

9 (b) CONFORMING AMENDMENT.—The chapter analy10 sis for chapter 421 of title 49, United States Code, is

11 amended by adding at the end the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

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

12 SEC. 3. CIVIL PENALTY.

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

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

15 421’’ and inserting ‘‘subchapter II or III of chapter 421’’.

Æ