I

105TH CONGRESS

1ST SESSION H. R. 915

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 4, 1997

Mr. BOEHLERT (for himself and 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 1997’’.

6 SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR

7 SAFETY INFORMATION.

8 (a) GENERAL RULE.—Chapter 421 of title 49,

9 United States Code, is amended by adding at the end the

10 following:
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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 or she has been discharged or

5 otherwise discriminated against by a person in viola6 tion of subsection (a) may, within 180 days after

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

8 his or her behalf) a complaint with the Secretary of

9 Labor alleging such discharge or discrimination.

10 Upon receipt of such a complaint, the Secretary of

11 Labor shall notify the person named in the com12 plaint and the Administrator of the Federal Aviation

13 Administration of the filing of the complaint, of the

14 allegations contained in the complaint, of the sub15 stance of evidence supporting the complaint, and of

16 the opportunities which will be afforded to such per17 son under 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
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1 Secretary of Labor a written response to the com2 plaint and an opportunity to meet with a representa3 tive of the Secretary to present statements from wit4 nesses, the Secretary of Labor shall conduct an in5 vestigation and determine whether there is reason6 able cause to believe that the complaint has merit

7 and notify the complainant and the person alleged to

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

9 Secretary’s findings. If the Secretary of Labor con10 cludes that there is a reasonable cause to believe

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

12 Secretary shall accompany the Secretary’s findings

13 with a preliminary order providing the relief pre14 scribed by paragraph (3)(B). Within 30 days after

15 notification of findings under this paragraph, either

16 the person alleged to have committed the violation or

17 the complainant may file objections to the findings

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

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

20 operate to stay any reinstatement remedy contained

21 in the preliminary order. Such hearings shall be con22 ducted expeditiously. If a hearing is not requested

23 within such 30-day period, the preliminary order

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

25 judicial review.
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1 ‘‘(3) FINAL ORDER.—

2 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE3 MENT AGREEMENTS.—Within 120 days after

4 conclusion of a hearing under paragraph (2),

5 the Secretary of Labor shall issue a final order

6 providing the relief prescribed by this para7 graph or denying the complaint. At any time

8 before issuance of a final order, a proceeding

9 under this subsection may be terminated on the

10 basis of a settlement agreement entered into by

11 the Secretary of Labor, the complainant, and

12 the person alleged to have committed the viola13 tion.

14 ‘‘(B) REMEDY.—If, in response to a com15 plaint filed under paragraph (1), the Secretary

16 of Labor determines that a violation of sub17 section (a) has occurred, the Secretary of Labor

18 shall order the person who committed such vio19 lation to—

20 ‘‘(i) take affirmative action to abate

21 the violation;

22 ‘‘(ii) reinstate the complainant to his

23 or her former position together with the

24 compensation (including back pay), terms,
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1 conditions, and privileges associated with

2 his or her employment; and

3 ‘‘(iii) provide compensatory damages

4 to the complainant.

5 If such an order is issued under this paragraph,

6 the Secretary of Labor, at the request of the

7 complainant, shall assess against the person

8 against whom the order is issued a sum equal

9 to the aggregate amount of all costs and ex10 penses (including attorneys’ and expert witness

11 fees) reasonably incurred, as determined by the

12 Secretary of Labor, by the complainant for, or

13 in connection with, the bringing of the com14 plaint upon which the order was issued.

15 ‘‘(C) FRIVOLOUS COMPLAINTS.—If the

16 Secretary of Labor finds that a complaint

17 under paragraph (1) is frivolous or has been

18 brought in bad faith, the Secretary of Labor

19 may award to the prevailing employer a reason20 able attorney’s fee not exceeding $5,000.

21 ‘‘(4) REVIEW.—

22 ‘‘(A) APPEAL TO COURT OF APPEALS.—

23 Any person adversely affected or aggrieved by

24 an order issued under paragraph (3) may ob25 tain review of the order in the United States
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1 Court of Appeals for the circuit in which the

2 violation, with respect to which the order was

3 issued, allegedly occurred or the circuit in which

4 the complainant resided on the date of such vio5 lation. The petition for review must be filed

6 within 60 days from the issuance of the order

7 of the Secretary of Labor. Review shall conform

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

9 commencement of proceedings under this sub10 paragraph shall not, unless ordered by the

11 court, operate as a stay of the order.

12 ‘‘(B) LIMITATION ON COLLATERAL AT13 TACK.—An order of the Secretary of Labor

14 with respect to which review could have been

15 obtained under subparagraph (A) shall not be

16 subject to judicial review in any criminal or

17 other civil proceeding.

18 ‘‘(5) ENFORCEMENT OF ORDER BY SECRETARY

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

20 with an order issued under paragraph (3), the Sec21 retary of Labor may file a civil action in the United

22 States district court for the district in which the vio23 lation was found to occur to enforce such order. In

24 actions brought under this paragraph, the district

25 courts shall have jurisdiction to grant all appropriate
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1 relief including, but not limited to, injunctive relief

2 and compensatory damages.

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

4 ‘‘(A) COMMENCEMENT OF ACTION.—A per5 son on whose behalf an order was issued under

6 paragraph (3) may commence a civil action

7 against the person to whom such order was is8 sued to require compliance with such order. The

9 appropriate United States district court shall

10 have jurisdiction, without regard to the amount

11 in controversy or the citizenship of the parties,

12 to enforce such order.

13 ‘‘(B) ATTORNEY FEES.—The court, in is14 suing any final order under this paragraph,

15 may award costs of litigation (including reason16 able attorney and expert witness fees) to any

17 party whenever the court determines such

18 award is appropriate.

19 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im20 posed by this section shall be enforceable in a mandamus

21 proceeding brought under section 1361 of title 28, United

22 States Code.

23 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA24 TIONS.—Subsection (a) of this section shall not apply with
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1 respect to an employee of an air carrier who, acting with2 out direction from such air carrier (or such air carrier’s

3 agent), deliberately causes a violation of any requirement

4 relating to air carrier safety under this subtitle or any

5 other law of the United States.’’.

6 (b) CONFORMING AMENDMENT.—The table of sec7 tions at the beginning of such chapter is amended by add8 ing at the end the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

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

9 SEC. 3. CIVIL PENALTY.

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

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

12 421’’ and inserting ‘‘subchapter II or III of chapter 421’’.

Æ