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. CLAY-
TON, 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. ROTH-
MAN) 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Aviation Safety Protec-
tion Act’’.
SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFE-
TY INFORMATION.
(a) IN GENERAL.—Chapter 421 of title 49, United
States Code, is amended by adding at the end the follow-
ing:
‘‘SUBCHAPTER III—WHISTLEBLOWER
PROTECTION PROGRAM
‘‘§ 42121. Protection of employees providing air safe-
ty information
‘‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOY-
EES.—No air carrier or contractor or subcontractor of an
air carrier may discharge an employee of the air carrier
or the contractor or subcontractor of an air carrier or oth-
erwise discriminate against any such employee with re-
spect to compensation, terms, conditions, or privileges of
employment because the employee (or any person acting
pursuant to a request of the employee)—
‘‘(1) provided, caused to be provided, or is
about to provide or cause to be provided to the Fed-
eral Government information relating to any viola-
tion or alleged violation of any order, regulation, or
standard of the Federal Aviation Administration or
any other provision of Federal law relating to air
carrier safety under this subtitle or any other law of
the United States;
‘‘(2) has filed, caused to be filed, or is about to
file or cause to be filed a proceeding relating to any
violation or alleged violation of any order, regulation,
or standard of the Federal Aviation Administration
or any other provision of Federal law relating to air
carrier safety under this subtitle or any other law of
the United States;
‘‘(3) testified or will testify in such a proceed-
ing; or
‘‘(4) assisted or participated or is about to as-
sist or participate in such a proceeding.
‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE-
DURE.—
‘‘(1) FILING AND NOTIFICATION.—
‘‘(A) IN
GENERAL.—In accordance with
this paragraph, a person may file (or have a
person file on behalf of that person) a com-
plaint with the Secretary of Labor if that per-
son believes that an air carrier or contractor or
subcontractor of an air carrier discharged or
otherwise discriminated against that person in
violation of subsection (a).
‘‘(B) REQUIREMENTS
FOR
FILING
COM-
PLAINTS.—A complaint referred to in subpara-
graph (A) may be filed not later than 90 days
after an alleged violation occurs. The complaint
shall state the alleged violation.
‘‘(C) NOTIFICATION.—Upon receipt of a
complaint submitted under subparagraph (A),
the Secretary of Labor shall notify the air car-
rier, contractor, or subcontractor named in the
complaint and the Administrator of the Federal
Aviation Administration of the—
‘‘(i) filing of the complaint;
‘‘(ii) allegations contained in the com-
plaint;
‘‘(iii) substance of evidence supporting
the complaint; and
‘‘(iv) opportunities that are afforded
to the air carrier, contractor, or sub-
contractor under paragraph (2).
‘‘(2) INVESTIGATION; PRELIMINARY ORDER.—
‘‘(A) IN GENERAL.—
‘‘(i) INVESTIGATION.—Not later than
60 days after receipt of a complaint filed
under paragraph (1) and after affording
the person named in the complaint an op-
portunity to submit to the Secretary of
Labor a written response to the complaint
and an opportunity to meet with a rep-
resentative of the Secretary to present
statements from witnesses, the Secretary
of Labor shall conduct an investigation
and determine whether there is reasonable
cause to believe that the complaint has
merit and notify in writing the complain-
ant and the person alleged to have commit-
ted a violation of subsection (a) of the Sec-
retary’s findings.
‘‘(ii) ORDER.—Except as provided in
subparagraph (B), if the Secretary of
Labor concludes that there is reasonable
cause to believe that a violation of sub-
section (a) has occurred, the Secretary
shall accompany the findings referred to in
clause (i) with a preliminary order provid-
ing the relief prescribed under paragraph
(3)(B).
‘‘(iii) OBJECTIONS.—Not later than
30 days after the date of notification of
findings under this paragraph, the person
alleged to have committed the violation or
the complainant may file objections to the
findings or preliminary order and request a
hearing on the record.
‘‘(iv) EFFECT OF FILING.—The filing
of objections under clause (iii) shall not op-
erate to stay any reinstatement remedy
contained in the preliminary order.
‘‘(v) HEARINGS.—Hearings conducted
pursuant to a request made under clause
(iii) shall be conducted expeditiously and
governed by the Federal Rules of Civil
Procedure. If a hearing is not requested
during the 30-day period prescribed in
clause (iii), the preliminary order shall be
deemed a final order that is not subject to
judicial review.
‘‘(B) REQUIREMENTS.—
‘‘(i) REQUIRED
SHOWING
BY
COM-
PLAINANT.—The Secretary of Labor shall
dismiss a complaint filed under this sub-
section and shall not conduct an investiga-
tion otherwise required under subpara-
graph (A) unless the complainant makes a
prima facie showing that any behavior de-
scribed in paragraphs (1) through (4) of
subsection (a) was a contributing factor in
the unfavorable personnel action alleged in
the complaint.
‘‘(ii) SHOWING BY EMPLOYER.—Not-
withstanding a finding by the Secretary
that the complainant has made the show-
ing required under clause (i), no investiga-
tion otherwise required under subpara-
graph (A) shall be conducted if the em-
ployer demonstrates, by clear and convinc-
ing evidence, that the employer would have
taken the same unfavorable personnel ac-
tion in the absence of that behavior.
‘‘(iii) CRITERIA FOR DETERMINATION
BY SECRETARY.—The Secretary may de-
termine that a violation of subsection (a)
has occurred only if the complainant dem-
onstrates that any behavior described in
paragraphs (1) through (4) of subsection
(a) was a contributing factor in the unfa-
vorable personnel action alleged in the
complaint.
‘‘(iv) PROHIBITION.—Relief may not
be ordered under subparagraph (A) if the
employer demonstrates by clear and con-
vincing evidence that the employer would
have taken the same unfavorable personnel
action in the absence of that behavior.
‘‘(3) FINAL ORDER.—
‘‘(A) DEADLINE FOR ISSUANCE; SETTLE-
MENT AGREEMENTS.—
‘‘(i) IN
GENERAL.—Not later than
120 days after conclusion of a hearing
under paragraph (2), the Secretary of
Labor shall issue a final order that—
‘‘(I) provides relief in accordance
with this paragraph; or
‘‘(II) denies the complaint.
‘‘(ii) SETTLEMENT
AGREEMENT.—At
any time before issuance of a final order
under this paragraph, a proceeding under
this subsection may be terminated on the
basis of a settlement agreement entered
into by the Secretary of Labor, the com-
plainant, and the air carrier, contractor, or
subcontractor alleged to have committed
the violation.
‘‘(B) REMEDY.—If, in response to a com-
plaint filed under paragraph (1), the Secretary
of Labor determines that a violation of sub-
section (a) has occurred, the Secretary of Labor
shall order the air carrier, contractor, or sub-
contractor that the Secretary of Labor deter-
mines to have committed the violation to—
‘‘(i) take action to abate the violation;
‘‘(ii) reinstate the complainant to the
former position of the complainant and en-
sure the payment of compensation (includ-
ing back pay) and the restoration of terms,
conditions, and privileges associated with
the employment; and
‘‘(iii) provide compensatory damages
to the complainant.
‘‘(C) COSTS OF COMPLAINT.—If the Sec-
retary of Labor issues a final order that pro-
vides for relief in accordance with this para-
graph, the Secretary of Labor, at the request of
the complainant, shall assess against the air
carrier, contractor, or subcontractor named in
the order an amount equal to the aggregate
amount of all costs and expenses (including at-
torney and expert witness fees) reasonably in-
curred by the complainant (as determined by
the Secretary of Labor) for, or in connection
with, the bringing of the complaint that re-
sulted in the issuance of the order.
‘‘(4) FRIVOLOUS
COMPLAINTS.—A complaint
brought under paragraph (1) that is found to be
frivolous or to have been brought in bad faith shall
be governed by rule 11 of the Federal Rules of Civil
Procedure.
‘‘(5) REVIEW.—
‘‘(A) APPEAL TO COURT OF APPEALS.—
‘‘(i) IN GENERAL.—Not later than 60
days after a final order is issued under
paragraph (3), a person adversely affected
or aggrieved by that order may obtain re-
view of the order in the United States
court of appeals for the circuit in which
the violation allegedly occurred or the cir-
cuit in which the complainant resided on
the date of that violation.
‘‘(ii) REQUIREMENTS
FOR
JUDICIAL
REVIEW.—A review conducted under this
paragraph shall be conducted in accord-
ance with chapter 7 of title 5. The com-
mencement of proceedings under this sub-
paragraph shall not, unless ordered by the
court, operate as a stay of the order that
is the subject of the review.
‘‘(B) LIMITATION
ON
COLLATERAL
AT-
TACK.—An order referred to in subparagraph
(A) shall not be subject to judicial review in any
criminal or other civil proceeding.
‘‘(6) ENFORCEMENT OF ORDER BY SECRETARY
OF LABOR.—
‘‘(A) IN GENERAL.—If an air carrier, con-
tractor, or subcontractor named in an order
issued under paragraph (3) fails to comply with
the order, the Secretary of Labor may file a
civil action in the United States district court
for the district in which the violation occurred
to enforce that order.
‘‘(B) RELIEF.—In any action brought
under this paragraph, the district court shall
have jurisdiction to grant any appropriate form
of relief, including injunctive relief and compen-
satory damages.
‘‘(7) ENFORCEMENT OF ORDER BY PARTIES.—
‘‘(A) COMMENCEMENT OF ACTION.—A per-
son on whose behalf an order is issued under
paragraph (3) may commence a civil action
against the air carrier, contractor, or sub-
contractor named in the order to require com-
pliance with the order. The appropriate United
States district court shall have jurisdiction,
without regard to the amount in controversy or
the citizenship of the parties, to enforce the
order.
‘‘(B) ATTORNEY
FEES.—In issuing any
final order under this paragraph, the court may
award costs of litigation (including reasonable
attorney and expert witness fees) to any party
if the court determines that the awarding of
those costs is appropriate.
‘‘(c) MANDAMUS.—Any nondiscretionary duty im-
posed by this section shall be enforceable in a mandamus
proceeding brought under section 1361 of title 28.
‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA-
TIONS.—Subsection (a) shall not apply with respect to an
employee of an air carrier, or contractor or subcontractor
of an air carrier who, acting without direction from the
air carrier (or an agent, contractor, or subcontractor of
the air carrier), deliberately causes a violation of any re-
quirement relating to air carrier safety under this subtitle
or any other law of the United States.
‘‘(e) CONTRACTOR DEFINED.—In this section, the
term ‘contractor’ means a company that performs safety-
sensitive functions by contract for an air carrier.’’.
(b) CONFORMING AMENDMENT.—The analysis for
chapter 421 of such title is amended by adding at the end
the following:
‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM
‘‘42121. Protection of employees providing air safety information.’’.
(c) CIVIL PENALTY.—Section 46301(a)(1)(A) of such
title is amended by striking ‘‘subchapter II of chapter
421,’’ and inserting ‘‘subchapter II or III of chapter
421,’’.
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