Nader v. Butterfield, Civ. A. No. 1967-73.

• Decision Date: 27 February 1974
• Docket Number: Civ. A. No. 1967-73.
• Citation: 373 F. Supp. 1175
• Parties: Ralph NADER et al., Plaintiffs, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, Defendant.
• Court: U.S. District Court — District of Columbia

373 F. Supp. 1175

Ralph NADER et al., Plaintiffs, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, Defendant.

Civ. A. No. 1967-73.

United States District Court, District of Columbia.

February 27, 1974.

Reuben B. Robertson, III, Alan B. Morrison, Washington, D. C., for plaintiffs.

Robert S. Rankin, Asst. U. S. Atty., United States District Court, Washington, D. C., for defendant.

MEMORANDUM OPINION

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. § 553 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.¹ This resulted in the establishment of various requirements for aircraft and airport security.²

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 a 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 553(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 inspection system but rather could make its own decision to inaugurate such procedure.

The Court does not view the March 29th memorandum, as the defendant argues, a general statement of policy, and rejects this contention. Before that date air carriers were required to conduct a physical visual search of all carry-on baggage. The new directive, however, marked a significant departure from the prior requirements, and, in effect cleared the way for airlines to eliminate the previously observed safety practices of physical visual hand baggage searches in favor of x-ray systems which met certain FAA criteria. A carrier demonstrating that its equipment met these standards could then amend its procedures. This created a right which had not existed prior to March 29th and the Court does not view this change as a general statement of policy.

General statements of policy under § 553(b)(A) encompass agency action which does not impose or alter rights or obligations of affected persons, Texaco Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3rd Cir. 1969). Moreover a decision as to the applicability of rulemaking must be based upon the substance and effect of the action and not the label or the designation which the agency has chosen. As Circuit Judge Oakes observed in Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-482 (2d Cir. 1972):

"While the Secretary strenuously argues that he was merely announcing `a general statement of agency procedure or practice' . . ., the label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact."

See also National Motor Freight Traffic Association v. United States, 268 F. Supp. 90 (D.D.C.1967).

The opening paragraph of the March 29th memorandum states its purpose:

"The criteria contained in this letter is furnished for guidance in approving amended airline security programs to include the use of x-ray systems for hand-carried luggage/items inspection."

While the memorandum may be viewed as an instructive communication to FAA personnel, which on its face neither creates an official public policy nor establishes direct obligations or rights to air carriers or any other members of the public, it is rather obvious that the policy of allowing x-ray devices was either actually in existence on March 29, 1973 or was only then conceived. Intra agency guidelines, as the government has described this memorandum, are simply not issued in a vacuum to complement non-existent policies or programs. If no other official action had been taken which authorized the use of x-rays, it is reasonable to assume that the questioned guidelines incorporated, by implication, such authorization. The fact that the only government action on this...