Sima Products Corp. v. McLucas, No. 78-2500

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before SWYGERT, PELL and BAUER; SWYGERT
• Citation: 612 F.2d 309
• Parties: SIMA PRODUCTS CORPORATION, an Illinois Corporation, et al., Plaintiffs-Appellants, v. Dr. John McLUCAS, Administrator, Federal Aviation Administration, Defendant-Appellee.
• Docket Number: No. 78-2500
• Decision Date: 03 January 1980

Page 309

612 F.2d 309 SIMA PRODUCTS CORPORATION, an Illinois Corporation, et al.,
Plaintiffs-Appellants,
v.
Dr. John McLUCAS, Administrator, Federal Aviation
Administration, Defendant-Appellee. No. 78-2500. United States Court of Appeals,
Seventh Circuit. Argued Sept. 24, 1979.
Decided Jan. 3, 1980.

Page 310

Ray Jeffrey Cohen, Chicago, Ill., for plaintiffs-appellants.

Curtis J. Wilder, Federal Aviation Admin., Chicago, Ill., for defendant-appellee.

Before SWYGERT, PELL and BAUER, Circuit Judges.

SWYGERT, Circuit Judge.

Plaintiffs-appellants Sima Products Corporation and its president, Irvin Diamond, brought this action in the district court, seeking declaratory relief against an amendment to a regulation, 14 C.F.R. § 121.538a(e) (1978), promulgated by the Federal Aviation Administration ("FAA") under certain sections of the Federal Aviation Administration Act, 49 U.S.C. §§ 1356, 1357 ("the Act"), and 14 C.F.R. §§ 121.1(a),

Page 311

121.538. Plaintiffs challenge the legality of the amendment on both procedural and substantive grounds. The district court dismissed the complaint for lack of subject matter jurisdiction, holding that jurisdiction to review the amendment issued by the FAA lies exclusively in the courts of appeals under section 1006(a) of the Federal Aviation Act, 49 U.S.C. § 1486. Sima Products Corp. v. McLucas, 460 F.Supp. 128, 134 (N.D.Ill.1978). We affirm. I

On March 5, 1975 the FAA promulgated an amendment to rule 121.538a which regulates the use of X-ray devices for the inspection of carry-on baggage and other items at airport security points. In relevant part, paragraph (e) of the amendment states that:

No certificate holder (i. e., airport) may use an X-ray system to inspect carry-on baggage or items, unless a sign is posted in a conspicuous place which notifies passengers that such items are being inspected by an X-ray system and advises them to remove all X-ray and scientific film from their carry-on baggage and items before inspection. If the X-ray system exposes any carry-on baggage or item to more than one milliroentgen during the inspection, the certificate holder shall post a sign which advises passengers to remove film of all kinds from their carry-on baggage and items before inspection. If requested by a passenger, his photographic equipment and film packages shall be physically inspected without exposure to an X-ray system.

14 C.F.R. § 121.538a(e). ¹ Pursuant to this rule, commercial airports have posted signs similar to those posted at the American Airlines and Northwest Airlines security points in the O'Hare International Airport, Chicago, Illinois, which state:

X-ray baggage inspection.

Carry-on baggage is being inspected by X-ray.

Inspection will not affect ordinary undeveloped film.

Remove all X-ray and scientific film from luggage.

Physical inspection may be requested.

Approximately nine months before the rule was promulgated, a notice of the proposed amendment and rule making appeared in the Federal Register. See 39 Fed.Reg. 22275 (June 21, 1974). In response to this notice, the FAA received numerous comments including ones from scientific and technical organizations, film manufacturers, and an association of photographic suppliers. Plaintiffs Diamond and Sima Products Corporation, which manufacturers and distributes lead laminated containers that protect ordinary commercial film from the effects of X-ray machines, submitted written material to the FAA in opposition to the proposed amendment. They urged that the airport signs advise travelers that X-rays present a danger to all types of film. Along with the other responses, plaintiffs' comments were considered by the FAA and made part of the administrative record. See 14 C.F.R. § 11.-47(a). No evidentiary hearing was held prior to promulgating rule 121.538a.

On August 31, 1976 plaintiffs filed a petition with the FAA, requesting it to amend paragraph (e) so that passengers would be advised to remove all film from their carry-on baggage and items before inspection by an X-ray system. ² See 14 C.F.R. § 11.25.

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Plaintiffs argued that signs like the ones posted in the O'Hare airport are misleading, and contrary to both scientific fact and personal experience of the plaintiffs. Therefore, plaintiffs maintained, the rule allowing airports to erect such signs is arbitrary, capricious, and unreasonable. To support the allegations, plaintiffs offered a variety of exhibits, including copies of articles in publications, personal correspondence, and a sign posted in the Tokyo, Japan airport by a non-U.S. air carrier.

Four months later, having failed to receive a response to their petition, plaintiffs filed this suit in district court against Dr. John McLucas, the FAA Administrator. ³ Asserting jurisdiction under 28 U.S.C. § 1346, they requested that the district court declare rule 121.538a void as arbitrary and unreasonable and order the FAA to promulgate an amendment to the rule notifying air travelers that X-ray devices are not film safe. The suit was dismissed for lack of jurisdiction and this appeal ensued.

II

At the outset, plaintiffs concede that the FAA fully complied with the notice procedures outlined in section 553 of the Administrative Procedure Act, 5 U.S.C. § 553, and that, in response to the notice of the proposed amendment and rule making that appeared in the Federal Register, they submitted written correspondence. Nonetheless, they argue that they never received a "true hearing" on the merits of their position and for this reason they are entitled to a hearing in the district court. The FAA opposes this position by contending that the explicit statutory language of section 1486 mandates that a determination as to the unreasonableness or arbitrariness of the amendment may be made only by this court.

In granting the FAA's motion to dismiss for lack of subject matter jurisdiction, the district court relied on 49 U.S.C. § 1486. That statute provides in pertinent part that "orders" of the FAA "shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia" and that "the court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of . . . ." 49 U.S.C. §§ 1486(a) and (d). For a variety of reasons plaintiffs contend that regulation 121.538a(e) is not an "order" within the meaning of the section. However, we are unpersuaded.

First, plaintiffs urge that a literal approach to interpreting section 1486 be adopted by this court. It is argued that the special review statute does not apply to the FAA's action because it is labelled a "regulation," rather than an "order." This attempt to skirt the exclusive language of section 1486 is meritless because the term "order" for purposes of this statute should be construed more expansively than plaintiffs suggest. By adopting...