Sima Products Corp. v. McLucas

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation460 F. Supp. 128
Docket NumberNo. 77 C 81.,77 C 81.
PartiesSIMA PRODUCTS CORPORATION, an Illinois Corporation, et al., Plaintiffs, v. Dr. John McLUCAS, Administrator, Federal Aviation Administration, Defendants.
Decision Date09 November 1978

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

Thomas P. Sullivan, U. S. Atty., John L. Gubbins, Blanche M. Manning, Asst. U. S. Attys., Chicago, Ill., for defendants.


MAROVITZ, Senior District Judge.

Motion to Dismiss

Plaintiffs, Sima Products Corporation ("Sima"); Irwin Diamond; Chicago Area Camera Club Association ("Camera Club") and Betty Obey bring this action against Dr. John McLucas, Administrator of the Federal Aviation Administration ("FAA"), under 28 U.S.C. §§ 2201, 2202 seeking declaratory and injunctive relief. Plaintiffs allege, inter alia, that defendant promulgated an amendment to a FAA regulation, 14 C.F.R. § 121. 538a(e) (1978), which unreasonably distinguishes X-ray and scientific film from ordinary photographic film, thereby causing signs to be posted at airport security points which deceptively state that "x-ray machines are film safe." Plaintiff's Complaint, ¶ 16. Plaintiffs seek a declaration that the amendment is void and an order that defendant promulgate another amendment which requires signs that warn of the damage that X-ray may cause to all film.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1346. Pending before the Court is defendant's motion to dismiss for want of subject matter jurisdiction. Rule 12(b)(1), F.R.Civ.P. For the reasons set forth below, defendant's motion is granted.

Plaintiffs allege that defendant has the authority under certain sections of the Federal Aviation Act, 49 U.S.C. §§ 1356, 1357 and 14 C.F.R. §§ 121.1(a), 121. 538 to make and enforce air transportation security rules which apply to air carriers engaged in interstate commerce. On March 5, 1975, defendant promulgated an amendment to rule 121.538 which provides:

a(e) No certificate holder 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).

As a result of this rule, commercial airlines operating out of Chicago, Illinois, and other commercial airports in the United States have posted signs conforming to the language of the rule. For example, the signs at the American Airlines and Northwest Airlines security points read as follows:

"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."
Plaintiffs' Complaint, ¶ 9.

Plaintiffs allege that these signs are inaccurate, misleading and "contrary to scientific fact and personal experiences of the plaintiffs and other travelers, in that the X-ray machines, even if they expose ordinary undeveloped film to one-half of one milliroentgen of radiation, can damage the film either through one dose of radiation or the cumulative effect of several inspections. Plaintiffs' Complaint, ¶ 11.

On August 31, 1976, pursuant to 14 C.F.R. § 11.25, plaintiffs filed a petition with defendant requesting that defendant promulgate an amendment to rule 121. 538a(e) in order to delete the language that plaintiffs consider to be misleading. Plaintiffs allege that defendant has not acted on the petition.1 Plaintiffs bring this action claiming that rule 121. 538a(e) is unreasonable, contrary to 49 U.S.C. § 1357 and violative of public policy.

Sima manufactures and distributes "Filmshield" and "Filmwrap", laminated lead foil products which protect film and other items from radiation. Sima alleges that the signs imply that its products are unnecessary. Camera Club is an umbrella organization of approximately seventy Chicago area camera clubs which contain over four thousand members. Plaintiff alleges that these members frequently carry photographic film when traveling on commercial airlines. Irwin Diamond, president of Sima, and Betty Obey, president of Camera Club, are frequent travelers on commercial aircraft in the United States. Pursuant to FAA regulations, airlines must require passengers to pass a security check upon entering the airport terminal. See 14 C.F.R. § 121.538. Rule 121. 538a authorizes the use of X-ray systems approved by the defendant.

Defendant contends that the Court of Appeals has exclusive jurisdiction of this matter pursuant to 49 U.S.C. § 1486, the judicial review provision of the Federal Aviation Act, 49 U.S.C. §§ 1301, et seq. (The "Act"). 49 U.S.C. § 1486 provides in pertinent part:

(a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter . . . 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 . . .. (emphasis supplied) (d) The court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of, in whole or in part . . ..

Plaintiffs argue that rule 121. 538a(e) is not an order within the purview of 49 U.S.C. § 1486. Therefore, plaintiffs argue, that statute is not controlling and a district court can take jurisdiction over the subject matter of this case.

The narrow question before this Court is whether rule 121. 538a(e) is an order within the ambit of 49 U.S.C. § 1486. We note that the term order is not expressly defined by the Act, nor does the Act expressly delineate between orders and rules or regulations. Therefore, we look to judicial interpretation of 49 U.S.C. § 1486 and similar statutory provisions for judicial review of agency orders.

Plaintiffs, relying on United Gas Pipe Line Co. v. FPC, 86 U.S.App.D.C. 314, 181 F.2d 796 (1950), argue that a rule is not an "order" unless it was promulgated pursuant to an evidentiary hearing. In United Gas, the Court of Appeals for the District of Columbia held that the judicial review statute of the Natural Gas Act, 15 U.S.C. § 717r(b), required a quasi-judicial proceeding, at which an evidentiary record was compiled, for a regulation to be an order within the meaning of the statute. The court reasoned that an appellate court would have "no intelligible basis for decision unless a subordinate tribunal has made a record fully encompassing the issues." United Gas, supra 86 U.S.App.D.C. at 317, 181 F.2d at 799. The requirement of a quasi-judicial hearing would necessarily preclude rule 121.538a(e) from review under 49 U.S.C. § 1486.

The approach taken in United Gas has been significantly eroded by the same court in a line of more recent cases. See, e. g., Deutsch Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App.D.C. 191, 479 F.2d 912 (1973); Mobil Oil Corporation v. FPC, 152 U.S.App.D.C. 119, 469 F.2d 130 (1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 159 (1973); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972). Finally, in Investment Co. Institute v. Board of Governors of Federal Reserve System, 179 U.S.App.D.C. 311, 317, 551 F.2d 1270, 1276 (1977), the court expressly rejected their approach taken in United Gas.

In Investment Co., the court determined that a rule which had been promulgated by the Federal Reserve Board according to informal rule-making procedures was an "order" within the meaning of the judicial review statute of the Bank Holding Company Act, 12 U.S.C. § 1848. "In our view, the purposes underlying the review statute will best be served if `order' is interpreted to mean any agency action capable of review on the basis of the administrative record." Investment Co., supra 179 U.S.App. D.C. at 319, 551 F.2d at 1278. But see contra PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718 (3d Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1992, 40 L.Ed.2d 558 (1974). The court reiterated its earlier observation in Deutsch Lufthansa Aktiengesellschaft v. CAB, supra 156 U.S.App.D.C. at 195, 479 F.2d at 916, that "`it is the availability of a record for review and not the holding of a quasi-judicial hearing which is now the jurisdictional touchstone.'" Investment Co., supra, 179 U.S. App.D.C. at 318, 551 F.2d at 1277.

We adopt the interpretation given to "order" in Investment Co. Therefore, this Court must consider whether the administrative record in the instant case is adequate for review of rule 121. 538a(e) under 49 U.S.C. § 1486.

Plaintiffs challenge the adequacy of the administrative record on the ground that "no tribunal has ever produced a record encompassing issues raised by plaintiffs." Response to Federal Defendant's Motion to Dismiss, p. 4. We disagree. The record shows that defendant followed the statutory and regulatory rule making procedures set out in 5 U.S.C. § 553 and 14 C.F.R. § 11(B). These procedures do not require an evidentiary hearing. Id. An administrative record, Federal Aviation Administration, Reg.Doc.No.13841, was compiled by defendant during the making of rule 121. 538a(e) pursuant to 14 C.F.R. §§ 11.23, 11.29, 11.31. From our review of the administrative record, it appears that plaintiff Sima, by plaintiff Diamond, participated in the informal rulemaking by submitting comments2 in response to notice of the proposed amendment and rule making that was published in the Federal Register, 39 Fed.Reg. 22275 (June...

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  • Northwest Tissue Center v. Shalala, 93-1078
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    ...contention that a permissible interpretation renders any notice and comment procedure adequate. See Sima Products Corp. v. McLucas, 460 F.Supp. 128 (N.D.Ill.1978), aff'd, 612 F.2d 309, 312 (7th Cir.1980). We do not agree with the agency's reading of Sima Products. In that case, plaintiff as......
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  • Sima Products Corp. v. McLucas, 78-2500
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    • 3 Enero 1980 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 On March 5, 1975 the FAA promulgated an amendment to rule 121.538a which regulates the use of X-ray devices for the inspectio......

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