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NADER v. BUTTERFIELD

February 27, 1974

RALPH NADER, ET AL., Plaintiffs,
v.
ALEXANDER P. BUTTERFIELD, Administrator, FEDERAL AVIATION ADMINISTRATION, Defendant


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

In this proceeding plaintiffs, Ralph Nader and the Aviation Consumer Action Project, seek declaratory and injunctive relief against the Administrator of the Federal Aviation Administration (FAA). At issue is the legality of action taken by the FAA on March 29, 1973 when it, in effect, approved a policy permitting the airlines to use certain x-ray devices in airport terminal areas for the inspection of passengers' carry-on baggage. Ralph Nader alleges that he is a frequent airline passenger. Aviation Consumer Action Project is a nonprofit organization engaged in the advocacy of passenger and employee safety on airlines and the complaint alleges that many of its supporters are frequent patrons and employees of the airlines.

 The plaintiffs have moved for summary judgment and advance two contentions. First, they assert that the rulemaking requirements of the Administrative Procedure Act, (APA), 5 U.S.C. § 533 were not observed. They also contend that the inspection policy permitting airlines to use x-ray procedures in their security programs significantly affect the human environment and necessarily require the preparation of an environmental impact statement under § 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332.

 A cross motion for summary judgment has been filed and the defendant contends that the Administrative Procedure Act and the National Environmental Policy Act are not applicable to its action.

 Upon the basis of the memoranda of points and authorities, affidavits and the entire record submitted by the parties, the Court grants summary judgment for the plaintiffs and denies the motion of the defendant.

 The determinative facts are not disputed and may be briefly stated. Faced with the serious problems of hijacking and bomb threats, the FAA, in September of 1971, issued notice of proposed rulemaking for airline security regulations. *fn1" This resulted in the establishment of various requirements for aircraft and airport security. *fn2"

 Throughout 1972, however, there was an alarming rash of bomb threats and airplane seizures causing the FAA Administrator on December 5, 1972 to declare an emergency situation. Immediately thereafter the security regulations were amended to require that all carry-on baggage be inspected to detect weapons and explosives and that all passengers be cleared or screened by a metal detection device.

 Announcement of this policy was contained in a telegram dated December 5, 1972, from the FAA Administrator to the Regional Directors of the Agency. The amendment provided that: carry-on baggage would be inspected to detect weapons or dangerous objects; each passenger would be cleared by a hand-held or a walk-through detection unit or, in the absence of a detector, each passenger would be compelled to submit to a consent search prior to boarding. Plaintiffs do not challenge the overall security program adopted by FAA or the requirements imposed by the December 5, 1972 emergency order. Solely at issue is a subsequent memorandum of March 29, 1973 from FAA's Director of Air Transportation Security to the regional offices prescribing criteria and standards to be satisfied before any x-ray system or equipment could be used for baggage inspection. This was the first reference by the FAA for the utilization of such devices and the Court has not been apprised of, nor does the record refer to, any earlier FAA action which specifically authorized this procedure. The APA and NEPA issues presented are concerned with the March 29th memorandum, which the plaintiffs contend permitted an unauthorized and improper introduction of the x-ray detection systems by the airlines.

 Applicability of the Administrative Procedure Act

 The heart of the APA rulemaking scheme provides for advance general notice of proposals to the public through publication in the Federal Register; opportunity for interested persons to participate and to present views for consideration by the agency; a statement by the agency as to the basis and purpose of the rule; and publication of the rule in the Federal Register by the Agency before its effective date. Section 551(4) of APA defines, in part, a "rule" as

 
". . . the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . ."

 Section 533(b) (A) of the APA provides that, except when notice or hearing is required by statute, rulemaking does not apply

 
"to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . . ."

 The defendant argues that this exception applies to its action and that the FAA's memorandum of March 29, 1973 was merely a statement providing substantive policy guidance to field employees before permitting air carriers to use x-ray devices. It is claimed that the memorandum was not mandatory and no carrier was required to adopt an x-ray ...


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