792 F.2d 1560 (11th Cir. 1986), 85-5808, United States v. Eastern Air Lines, Inc.

Docket Nº:85-5808.
Citation:792 F.2d 1560
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. EASTERN AIR LINES, INC., Defendant-Appellee.
Case Date:July 09, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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792 F.2d 1560 (11th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellant,

v.

EASTERN AIR LINES, INC., Defendant-Appellee.

No. 85-5808.

United States Court of Appeals, Eleventh Circuit

July 9, 1986

As Amended Aug. 25, 1986.

Leon B. Kellner, U.S. Atty., Jonathan Goodman, Asst. U.S. Atty., Miami, Fla., Anthony J. Steinmeyer, Appellate Staff, Michael Kimmel, Civil Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Mary Kogut-Equels, Carmen L. Leon, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this case, the district court granted summary judgment to Eastern Air Lines, Inc., ruling that the Federal Aviation Administration's oral directive to air carriers to physically inspect all bottles revealed by x-ray equipment in carry-on baggage constituted an unauthorized amendment to controlling regulations. We reverse.

FACTS

In 1983, after a series of aircraft hijackings in southern Florida, the Federal Aviation Administration (FAA) advised air carriers that section IIC2 of the FAA-approved and mandatory security programs required checkpoint personnel to physically inspect bottles and containers in carry-on baggage

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revealed by x-ray. The FAA acted in response to the use of gasoline and other incendiary materials to accomplish hijackings. FAA officials observed that airline security agents were not taking adequate steps to deal with this type of threat.

Section IIC2 requires x-ray inspection of carry-on baggage; IIC2 states as follows:

The x-ray inspection method requires the use of an adequately trained operator. Whenever the operator sees on the display an image that is or may conceal a weapon, explosive or incendiary device or a dangerous object, the hand carried item must then undergo physical inspection. 1

Eastern Air Lines refused to comply with the oral directive to physically inspect bottles. During the hijack emergency and after the oral announcement, a special team of FAA inspectors, some brought to Miami, Florida, for that purpose, monitored the carriers' compliance. Using the team's observations and case-by-case evaluations, the FAA inspectors identified 112 specific violations of the physical inspection requirement. 2

Eastern contended that a requirement to physically inspect bottles constituted an amendment to section IIC2. Eastern stated that it would comply with the requirement if a written amendment of the security program were issued, as was done in June, 1983, when the FAA instituted a requirement of special screening of passengers meeting the FAA-approved hijack profile. Eastern eventually voluntarily complied with the oral directive.

The FAA never issued a written directive. At a July 15, 1983, meeting, the air carriers and the FAA reached an understanding concerning the future enforcement of security screening procedures. The FAA agreed to no longer require that all bottles be inspected, and the air carriers agreed to have management more involved in the security screening operations.

After Eastern Air Lines refused to pay penalties for the alleged violations, the FAA filed suit in district court, alleging 56 specific violations and seeking fines of $1,000 per violation. The FAA filed its claims for civil penalties pursuant to 49 U.S.C. Sec. 1473 and 49 U.S.C. Sec. 1471(a). Title 49 U.S.C. Sec. 1471(a) provides, in pertinent part, for a civil penalty "not to exceed $1,000 for each ... violation" of a "rule, regulation, or order...." Title 49 U.S.C. Sec. 1473 provides, in pertinent part, for venue choices and procedures with respect to civil penalties.

Eastern Air Lines moved for summary judgment based on affidavits submitted by officials of the FAA and employees of Eastern Air Lines. The affidavits primarily concerned the parties' understanding of whether the oral directive was an amendment to or a continuation of a process of informal consultation and interpretation of an existing regulation. The district court granted Eastern's summary judgment motion, concluding "as a matter of law that defendant's approved security program did not require the type of inspection asserted by plaintiff's oral directive and that the directive...

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