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Nader v. Butterfield

ELR Citation: 4 ELR 20431
Nos. No. 1967-73, 373 F. Supp. 1175/6 ERC 1360/(D.D.C., 02/27/1974)

A memorandum issued by the Administrator of the Federal Aviation Administration (FAA) permitting airlines to use x-ray devices in terminals to inspect passenger baggage constitutes initiation of a new policy, requiring notice pursuant to the Administrative Procedure Act, as the use of x-ray devices is a significant change from the previous policy of physical searches. The memorandum was issued in the absence of earlier FAA action authorizing such procedure, and was not a response to an emergency situation. As a result, the Administrator's failure to follow APA procedures, which require an agency to provide notice to the public as well as an opportunity for the public to respond before new action is taken, renders the policy unlawful. In addition, the use of x-ray devices has a significant impact on the environment which forces FAA to produce either a NEPA impact statement or detailed reasons why an impact statement is unnecessary.

Counsel for Plaintiffs
Rubin B. Robertson III
Alan B. Morrison
2000 P St. NW
Washington, DC 20036

Counsel for Defendants
Robert Rankin
U.S. District Court
Constitution Ave. & John Marshall Place NW
Washington, DC 20001