# Appendix — Suburban O'Hare Commission v. Dole > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2148%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 479 U.S. 847 ## Text 86- 1 No. Supremes Court, U.S. tts D ie JUL 2 1988 Supreme Court of the Anite went IR. OctTosBer TERM, 1985 SUBURBAN O’HARE COMMISSION; THE VILLAGE OF ADDISON; THE VILLAGE OF BENSENVILLE; THE CiTY OF DES PLAINES; THE VILLAGE OF ELK GROVE VIL- LAGE; THE CITY OF ELMHURST; THE VILLAGE OF FRANKLIN PARK; THE VILLAGE OF HARWOOD HEIGHTS; THE VILLAGE OF ITASCA; THE VILLAGE OF NILES; THE VILLAGE OF NORRIDGE; THE CITY OF PARK RIDGE; THE VILLAGE OF SCHILLER PARK; THE CITY OF WOOD DALE; and LAWRENCE C. BIENEMAN, Petitioners, v. ELIZABETH HANFORD DOLE, Secretary of the Department of Transportation, UNITED STATES DEPARTMENT OF TRANSPORTATION; RUSSELL A. OLSON, Regional Rep- resentative of the Department of Transportation, Region V; DONALD ENGEN, Administrator of the Federal Aviation Administration; FEDERAL AVIATION ADMINISTRATION; PAUL BOHR, Director, Great Lakes Region, Federal Aviation Administration; JOHN GUIDOTTI, Supervisor, Illinois Sec- tion, Chicago Airports District Office, Federal Aviation Admin- istration; THE CITY OF CHICAGO, a municipal corporation; and JEROME R. BUTLER, Commissioner of the Department of Aviation of the City of Chicago, Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Of Counsel: JOHN L. ZIMMERMANN 1190 South Elmhurst Road Suite 200 Mount Prospect, IL 60056 (312) 439-2500 JOSEPH V. KARAGANIS A Bruce WHITE Kk .THLEEN M. DONAHUE ELLEN Lots Z1sook BELL, Bovp & LLoyp Three First National Plaza Suite 3200 Chicago, IL 60602 (312) 372-1121 Attorneys for Petitioners Pandick Midwest, Inc., Chicago © 733-6000 ee os i TABLE OF CONTENTS Order, dated April 14, 1986, summarily affirming Sub- urban O’Hare Commission, et al. v. Dole, et al., 603 F.Supp. 1013 (N.D. Ill. February 28, 1985) ( No. 85- Order, dated April 3, 1986, denying rehearing en banc in Suburban O’Hare Commission, et al. v. Dole, et al., —— > ( No. 85-1073, March 13, 1986) ........ Suburban O’Hare Commission, et al. v. Dole, et al., daa ae (No. 85-1073, March 13, 1986) ........ Suburban O’Hare Commission, et al. v. Dole, et al., 603 a, DES CIEE. Ges COD eisstectisctctitcccasiccnsiiccavevconese Letter, dated November 14, 1984, from John Guidotti, Supervisor, Illinois Section, Chicago Airports District Office, Federal Aviation Administration to Thomas Kapsalis, Commissioner, Department of Aviation, City of Chicago, approving March 1984 Airport Layout Plan for Chicago O’Hare International Air- SNE case hiccaallaisctinssiedaddiagtibdatachiddauhinchataasiebumianbanepagtemeominiindaiea Record of Decision, Airport Layout Plan, Chicago O’Hare International Airport, dated November 14, Ps iacaindas Tatiana tala piccinsccethcgpenisncicaavenanianekentddipaatnibiopnens Chicago O’Hare International Airport, Airport Layout PAGE A-l A-3 A-4 A-31 A-69 A-72 Pian Dated March 1984, Airspace Review Comments A-103 United States of America, Department of Trans- portation. Federal Aviation Administration, Great Lakes Region, Des Plaines, Illinois, Jn the matter of the petition of Chicago O’Hare-International Airport, Chicago, Illinois for an exemption from Section 139.81 (a) of the Federal Aviation Regulations, Regulatory Docket No. 84-AGL-139.81E-4508, I FIN BFR BW cdeiccccrdeicinatsccsdsidecndadutiadbiidininsiin ii PAGE Consent Decree, entered October 14, 1982, in State Of Illinois ex rel. Scott v. Butterfield, No. 74 2410, United States District Court for the Northern District OE TITS rrenasecesinscensionivesninenernieigiieiinnaamaelaiS A-109 Administrative Procedure Act, 5 U.S.C. Section 554....... A-118 Administrative Procedure Act, 5 U.S.C. Section 556....... A-120 Administrative Procedure Act, 5 U.S.C. Section 557....... A-122 Administrative Procedure Act, 5 U.S.C. Section 706 ....... A-126 Administrative Orders Review Act, 28 U.S.C. Section DOAF .ciiscncsicsiéinsnsintecstabcansmpbsddommetndnamandanaamanan A-127 National Environmental Policy Act of 1969, 42 U.S.C. Sects SF29-GIGN eveccceccscccscsentiliciiniesinanaacmmaiaa A-128 Federal Aviation Act, 49 U.S.C. Section 1486 ................. A-145 Airport and Airway Improvement Act of 1982, 49 OU B.C. Bectiet BIO vcs sievsnisnnissteosencseitssiaindanaaae A-147 Airport and Airway Improvement Act of 1982, 49 FSC. GO TINO iccctinicinesictishivvinecteabcescccimupeaanpaanan A-152 Affidavit of Robert H. Haveman........................cccccsccscoeees A-158 AGiidavia of Josaple 1... COs .eciscccsasnssoccssersccicsnsessnsssnnesion A-198 Affidavit of Richard L. De Neufiville .....................ceeeeeeees A-238 Affidavit of Barry Bateman ...................cccsscccscccssesescees seeeee A-249 AM Gavia Of Wien C. BGIEYy ccsicevevecntvvnncssincnmncsnesesieaieanes A-252 AGRdavin of Bamied Me. FADO eccccsnceicscnscsnssescsstncnascsasesmecs A-261 ASidavin of Dewiglet ©. Dai isnsasscccsencerenscavessocsserressonsonpes A-266 Affidavit of Frederic C. Hambur...................sccsseeceeeeeees A-269 Affidavit of Bertram W. Carnow....000...........-cccessseeseseseeeeees A-287 ATRdvit OF MOT C., TRG occ cncsccccceciessncsersrnsttniventadannea A-294 Supplemental Affidavit of William C. Sperry.................. A-297 Atidavit of Wihartins 5. TOE iscsicssvccvetenccnsssatensosesnnnnccmmana A-302 Supplemental Affidavit of Joseph L. Carroll ..................-. A-304 ee A-l United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 April 14, 1986. Before Hon. WALTER J. CUMMINGS, Chief Judge Hon. LUTHER M. SWYGERT, Senior Circuit Judge Hon. JESSE E. ESCHBACH, Senior Circuit Judge No. 85-1423 SUBURBAN O’HARE COMMIS. | SION et ai. oh Appeal from the United States Plaintiffs-Appellants, District Court for the North- ern District of IMinois, East- y. 3 ern Division. ELIZABETH HANFORD DOLE, No. 84 C 10387 Secretary of the Department of Ilana D. Rovner. Judge Transportation, et al., Defendants-Appellees. , This matter comes before the court for its consideration of the following documents: 1. “MEMORANDUM FOR FEDERAL RESPOND- ENTS” filed herein on April 2, 1986. 2. “SUGGESTIONS OF APPELLEE CITY OF CHICAGO REGARDING DISPOSITION OF DOCKET NO. 85-1423” filed herein on April 3, 1986. 3. “MEMORANDUM OF PLAINTIFFS-APPEL- ANTS” filed herein on April 3, 1986. A-2 Plaintiffs-Appellants originally sought to challenge the FAA’s decision to approve the O’Hare expansion in the district court. Judge Rovner dismissed the case for lack of jurisdiction finding that jurisdiction rested exclusively with the court of appeals. Following Judge Rovner’s decision plaintiffs-appel- lants filed both an appeal from the district court’s dismissal ( 85- 1423) and an original petition for review (85-1073) in this court. We held the appeal from Judge Rovner’s order in abeyance pending our decision on the petition for review. On March 13, 1986 we issued our opinion in 85-1073 finding that this court had exclusive jurisdiction over the case. On March 20, 1986 we invited the parties to the instant appeal to suggest the proper disposition of appeal 85-1423 in light of our decision in 85-1073. Appellees suggested that we summarily affirm the district court. Appellants did not contest this but suggested that we wait until the petition for rehearing in 85-1073 had been disposed of. On April 3, 1986, we denied the petition for rehearing in 85-1073. Accordingly, IT IS ORDERED that the February 28, 1985 order of the district court, which is the subject of appeal 85-1423 is hereby summarily affirmed. United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 April 3, 1986. Before Hon. WALTER J. CUMMINGS, Chief Judge Hon. LUTHER M. SWYGERT, Senier Circuit Judge Hon. JESSE E. ESCHBACH, Senior Circuit Judge No. 85-1073 ~*~ SUBURBAN O’HARE COMMISSION, et al., Petitioners, = Petition for Review of Orders of the Secretary of the Department of _ Trans- portation and the Adminis- ELIZABETH HANFORD DOLE, trator of the Federal Avia- tion Administration, and to Secretary of the Department of Trans- | Enforce Consent Decree. portation, et al., y. Respondents. J ORDER On consideration of the petition and suggestion for a rehearing en banc of the above matter, no active member of the court requested any action on the suggestion for an en banc rehearing, and all members of the original panel have voted to deny said petition, IT IS ORDERED that said petition for rehearing be and the same is hereby denied. A-4 iu tae United States Court of Appeals Bor the Seventh Cirrutt No. 85-1073 SUBURBAN Q’HARE COMMISSION, et al., Petitioners, v. ELIZABETH HANFORD DOLE, Secretary of the Department of Transportation, et ai., Respondents. Petition for Review of a Decision of the Federal Aviation Administration and Department of Transportation. ARGUED SEPTEMBER 27, 1985—DECIDED Marcu 13, 1986 Before CuMMINGS, Chief Judge, and SwWYGERT and ESCHBACH, Senior Circuit Judges. SwyGERT, Senior Circuit Judge. This case concerns the proposed expansion of Chicago’s O’Hare International Airport. Petitioners are a group of municipalities situated near the O’Hare Airport and organized into the Suburban O’Hare Commission (“‘Suburban”).! Respondents are the 1 The communities are the Village of Addison, the Village of Ben- senville, the City of Des Plaines, the Village of Elk Grove Village, the City of Elmhurst, the Village of Franklin Park, the Village of Harwood Heights, the Village of Itasca, the Village of Niles, (Footnote continued on following page) Srna Weer hia A-5 No. 85-1073 Department of Transportation, the Federal Aviation Ad- ministration (“FAA’’), the City of Chicago, and various public officials including the Secretary of the Department of Transportation. or Ng gpomsmeen ny. Poet to ws aside the deci- sion of the approving Chicago’s plan to expand the capacity of O’Hare and to enjoin all further construction at the location. For the reasons we now set forth the peti- tion is denied. I Located on a 6,925 acre site in Cook and DuPage counties seventeen miles northwest of downtown Chicago, O’Hare is one of three airports owned and operated by the City of Chicago.? During World War II Douglas Aircraft manufactured C-54 transport planes for the United States Air Corps on the site of what is now O’Hare. The City purchased the Douglas facility for one dollar in 1945, and built the Orchard Place Airport on the site in 1946. In 1949 the facility was renamed for Edward “Butch” O’Hare, a Navy fighter ace and Congressional Medal of Honor recipient. From 1926 to 1959 Midway Airport was the major air- port of the Chicago area and the busiest airport in the world, but chronic congestion at Midway led to the City’s decision to make O’Hare the area’s major airfield. In 1959 the City began a massive expansion of O’Hare. By July 1962 most major air carriers had shifted operations to O’Hare. O’Hare was designed to accommodate twenty mil- 1 continued Schiller Park, and the City of Wood Dale. The combined popula- tion of these communities is estimated at 400,000. Lawrence C. Bieneman, a resident of the Village of Bensenville, is also a peti- tioner in this case. 2 The other airports are Meigs Field and Midway Airport. A-6 No. 85-1073 lion passengers annually, but currently approximately for- ty million passengers a year pass through the facility. The airport employs 35,000 people and is one of Chicago’s largest employers. Historically, aviation has been a closely regulated indus- try. In 1938, when commercial aviation was still in its in- fancy, Congress enacted the Civil Aeronautics Act. In 1958, in response to rapid and dramatic changes in the nature of aviation, Congress replaced the Civil Aeronau- tics Act with the Federal Aviation Act, 49 U.S.C. $§ 1301 et seg. (Chapter 20 of Title 49). In 1946, to encourage the development of airports de- signed to accommodate interstate and international flights, Congress enacted the Federal Airport Act. This Act was superseded by the Airport and Airway Development Act of 1970. This legislation was in turn replaced by the Air- rt and Airway Improvement Act of 1982 (“AAIA”), 49 S.C. §§ 2201 et seg. (Chapter 31 of Title 49). Both the Federal Aviation Act and the Airport and Airway Im- provement Act are administered by the FAA. The Airport and Airway Development Act of 1970 made federal funds available to certain so-called “hub” cities to engage in a long-range planning process designed to pro- duce an appropriate master plan for regional aviation de- velopment. In 1975, with funding provided by the FAA, Chicago hired Landrum & Brown, an aviation consulting firm, to prepare a Master Plan Study for O’Hare.* The study represented the first attempt to formulate a system- atic plan of growth for O’Hare. Landrum & Brown’s Master Plan Study consists of nine- teen volumes comprising thousands of pages and examines 3 The City retained O’Hare Associates as supervising consultants for the project. O’Hare Associates is a joint venture of partners from Murphy-Jahn (architecture), Envirodyne (engineering), and ao Associates (construction). L&B was the original planner of "Hare. No. 85-1073 various factors relevant to airport development.‘ The con- sultants originally forecast a maximum unconstrained de- mand of 1.4 million flight operations in the Chicago area by 1995. Without significant expansion, Chicago’s Midway Airport was projected to receive .3 million of those flights. Meigs Field was to receive .1 million flights. The remain- ing one million flignts would somehow have to be accom- modated at O’Hare. Landrum & Brown initially concluded that the projected demand could only be met by the con- struction of two new runways. This result was unaccept- able to significant segments of the suburban population living near O’Hare. Conscious of the community ition to the addition of new runways the City decided to limit the growth of O’Hare, in theory eliminating the need for the new runways until at least 1995. At the same time the City committed itself to accommodate at least a sig- nificant portion of the projected growth of the region’s commercial aviation demand. While the Master Plan Study was still in the prepara- tion stage opponents of continued growth at O’Hare took their — to the courts. In 1974 then-State Attorney General William Scott sued the FAA in federal district court alleging that the agency had violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., by adopting a policy of unlimited growth at O’Hare. State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2440 (N.D. Ill. 1974). Suburban was permitted to intervene in the litigation. The Butterfield litigation ended on October 15, 1982, when the FAA, the City, and Suburban entered into a consent decree governing future growth at O’Hare. The consent decree provided in relevant part: * Using funds provided by the FAA, Suburban retained the con- sul ot lath Puke Aeoetinis aed Es, Gaeta & Mew man, Inc. to furnish an independent review of the L&B MPS. Suburban’s consultants gave favorable reviews to the L&B study. “Methodologies used by L&B for [aviation] forecasts and noise analysis are widely used and generally accepted by the airport community and federal agencies.” Interim Report on Review of O’Hare Airport Master » MPS Vol. XIX at B-2. EE No. 85-1073 { 1a. All future development at O’Hare will comply with all then j requirements of Federal and and procesaing. { 1d. Chicago agrees that it Will request the FAA to process an Environmental Impact Statement (“EIS”) ... With to any of the following projects (or een in scale or purpose) at O’Hare: (i) erminal 1 and related concourses and aprons; (ii) In- ternational Terminal; (iii) general aviation terminal; { lg. The FAA has not made any determination with to the matters described in P No. 85-1073 Advisory Committee, composed of representatives from both the community and government, as the appropriate forum for consideration of the relationship between O’Hare od. - rpms + sell ype pepamcndan cory Fal provided for the establishment of a permanent Office of Noise Abatement charged with investigating complaints about airport noise and with evaluating the effectiveness of noise abatement procedures. The parties to the consent decree entered into a se rate Intergovernmental Agreement which provided t t the communities surrounding O’Hare ime “feasible and reasonable steps to discourage the further develop- ee Sie ol ce «il City agreed that it would employ a + poe ee wed l in rneasuring the impact on noise levels of O’ opera sctlees al Wak tb Vebdilin “atlee snip” goupered : Representation on the Advisory Committee was distributed as DuPage Mayors and Conference (2) DuPage County Board of Commissions (1) Chicago Ausocation of Commerce and Industry (D Air Association (1) Illinois Planning ) Illinois Department of Commerce and Community Affairs (1) Illinois Department of Transportation (1) Chicago Department of Aviation (1) Office of the Mayor, City of Chicago (1) A-10 No. 85-1073 by the City would be based on a 65 Ldn Contour.® Chi- cago represented that it would not seek a finding of no significant environmental impact by the FAA. a ae e ens br anaes of Otee tin to review or ie Nr pe ie se sevdapanas Shade bas tack is liti- ion the City ted a two-phase development plan. I of the tw plan primarily involved the con- struction of a fourth terminal and an associated Concourse L. Phase II is a much more ambitious undertaking. Ac- ing to the notice of intent published on November 26, 1982 in the Federal Register, the following projects are contemplated: Extension of Runways 27R, 32L Construction of second taxiway bridge Construction of new taxiways Relocation of the inner/outer terminal area taxiway New apron construction Construction of snow removal facilities Acquisition of the military site and demolition and replacement of — USAF facilities Construction of a new International Terminal and Concourse Expansion of existing terminal buildings — of a new Terminal 1 and new concourses Construction of a new general aviation facility Construction of new cargo complex A-I1 No. 85-1073 Expansion of the ing and refrigeration plant Terminal area roadway rovements Airport ground access ements Senne ats bow Gee alkce helity Parking facili systems The official estimated cost of all the development proj- i were held on the matter in December i e t soon . Su we. Fong or instance, submitted written comments on Jan- uary 11, 1983, Rec. Vol. I, at 173. Typically, the written ised questions about the impact on the en- vironment of the proposed expansion plans. II Ray wind significant ecting > pea rl jor actions signi y i ity o human environment” must submit an reer hee Rec Im- Statement (“EIS”). It is not contested that the City pork. Pca tig tected tlyer sah ar -— llth funding bringing the expansion plans for O’Hare with- in NEPA’s ambit. An EIS must provide a “detailed state- ment” on: (1) the environmental impact of the proposed action, (2) any adverse environmental effects which cannot be avoided should the proposal be implemented, (3) alternatives to the proposed action, ! : ee A-12 No. 85-1073 (4) the relationship between local short-term uses of man’s environment and the maintenance and enhance- ments of long-term productivity, and (5) any irreversible and irretrievable commitments of resources which would be involved in the — should it be implemented. 42 U.S:C. § 4332 (2XC). FAA Order 5050.4 states that an Airport EIS should consider the following: Purpose and Need for the Action Alternative Affected Environment Environmental Consequences Noise Land use Social impacts Induced socio-economic impacts Air quality Water quality DOT Section 4(f) lands Historic sites ely yr art an itect applications Endangered species of flora and fauna Wetlands Floodplains Prime and unique farmlands Energy Light emissions Solid waste Construction Impacts Adverse Impacts which Cannot be Avoided The City determined that “Noise, Land use, Water qual- ity, Air ‘oie, and Construction impacts” should receive the greatest attention in the O’Hare EIS, Rec. Vol. I, at 141. The EIS in this case was prepared in stages and reflects the contributions of many individuals and organiza- tions including the petitioners. may | preliminary draft of the iiitaeneeeeeiememeeilamemasiiiadiel A-13 No. 85-1073 EIS, prepared by the City, was completed by February 1983; a formal draft of the EIS, was submitted in June 1983. The final EIS processed by the FAA using data fur- nished by the City was completed in Ma ay 1984. Because the environmental issues raised by the O'Hare expansion plans had always been the most caeeoaialal element of the Airport Layout Plan, FAA completion of the final EIS cleared the way for approval of the Plan, which came on November 14, 1984.® In — 1984 in response to com- ments from the Environmen Protection Aces Agency the FAA developed a program of air quality mitigation measures. On December 4, 1984 Suburban filed suit in the United States District Court for the Northern District of Illinois —_ the FAA and the City at. that the approval the Airport Layout Pian violated the Butterfield con- sent decree, NEPA, the Airway and Ai Improvement Act, and the Clean Air Act, 42 U.S.C. §§ 7401 et seq. Suburban moved for a preliminary injunction to enjoin all further construction at O’Hare. The district court dis- missed the complaint finding that it lacked subject mat- ter jurisdiction over the complaint. Suburban O’Hare Commission v. Dole, No. 84 C 10387, Memorandum Opin- ion and Order (N.D. Ill. Feb. 28, 1985). Prior to the dis- trict court’s dismissal, Suburban, as a matter of protec- tive pleading, filed the present petition for review in this * A cost-benefit analysis is not — of an oe but one was a repared in this case al it was not included in the final EIS. sedsieh Suith semidiiens ative i imenenelion of ro ty’s governing 3 NEPA, an it dad Oe bedhead b teseeil alah teeeallt Ani C.F.R. § 1507.23. “The statement is sufficient if it gives . sionmaker and other readers enough detail concerning all of these costs and benefits to permit reasoned evaluation and decision.” South Louisiana Environmental Council v. Sand, 629 F.2d 1005, 1013, n.7 (6th Cir. 1980); Sierra Club v. Sigler, 695 F.2d 957, 976-77, n.15 (6th Cir. 1983). A formal cost-benefit analysis need be included in the EIS itself only if the relies on such anal- yun in reaching the decision to which the EIS relates. 40 C.F-R. a A-14 No. 85-1073 court on January 14, 1984. It is that petition for review that is before us. Technically, the petition for review asks us only to review the legality of the FAA’s approval of the Airport Layout Plan. As we have indicated, ever, the Plan incorporates by reference all relevant environ- mental requirements. In effect, therefore, we are also asked to rule upon the adequacy of the final EIS. Ill A threshold issue we must address before reaching the merits of Suburban’s claim is whether jurisdiction properly vests in this court, as respondents contend, or in the dis- trict court, as petitioners urge. We have been assisted in our consideration of this matter by the thoughtful opin- ion of the district court dismissing Suburban’s complaint. We point out, however, that the proceeding below is juris- dictionally distinct from the present petition for review in this court and that the district court’s decision is not under review by this court. The FAA has stated that its review of the Master Plan Study and Airport Layout Plan was conducted under parts 77, 139, 152, and 157 of FAA regulations codified at 14 C.F.R. The FAA’s review pursuant to 14 C.F.R., parts 77, 139, and 157, was conducted pursuant to authority vested in the FAA under Chapter 20 of Title 49. The FAA’s review pursuant to part 152 of 14 C.F.R. was con- ducted pursuant to authority of Chapter 31 of Title 49. 49 U.S.C. § 1486(a) provides that: (a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter, except any order in respect of any foreign air carrier su ject to the approval of the President as provided in section 1461 of this title, shall be subject to review by the court of appeals of the United States or the nited States Court of Appeals for the District of Columbia upon petition, filed within sixty days after the entry of such order, by od person disclosing a substantial interest in such order. After the expira- No. 85-1073 tion of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore. 49 U.S.C. § 1486(d) declares that the courts of ap —— shall have exciusive jurisdiction to affirm or set aside order of the FAA issued pursuant to this section. Thus, if the FAA order approving the ALP was, in fact, made pursuant to Section 1486 it is clear that exclusive juris- diction to review that order rests with this court. Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir. 1983); City of Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984); City of Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984); State of New York v. FAA, 712 F.2d 806 (2d Cir. 1983); City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979). Suburban advances three arguments in support of its cortention that the FAA’s order of November 14, 1984 is reviewable only in the district court. First, Suburban contends that the FAA’s decision was actually made pur- suant to Chapter 31 of Title 49. Second, Suburban asserts that the district court had jurisdiction over its claim by virtue of the Butterfield consent decree. Third, Suburban argues that the FAA decision is not an “order” for pur- of Section 1486 because the administrative record is based on disputed issues of fact subject to the general jurisdictional grant of 28 U.S.C. 3 1331. Of the four “orders” entered by the FAA as part of its November 14, 1984 decision, three were issued on the purported authority of Chapter 20 of Title 49. One — was issued on the authority of Chapter 31. When an cy decision has two dis:inct bases, one of which caontdes for exclusive jurisdiction in the courts of appeals, the en- tire decision is reviewable exclusively in the appellate court. In Gaunce, 708 F.2d 1290, for example, a pilot chal- lenged the FAA’s order revoking her flight certificate. The challenge was based on both the Federal Aviation Act and the United States Constitution. The court none- theless held that exclusive jurisdiction rested in the court of appeals. No. 85-1073 To permit Suburban to maintain this action in the United States district court would contravene the clear intention of Congress that agency decisions made under Chapter 20 be reviewed by courts of appeals. The separation of Chapter 20 claims from Chapter 31 claims in this case could only be effectuated through pifurcated en But the purpose of having agency decisions reviewed courts of appeals is to avoid duplicative factfinding. if there is any ambiguity as to whe jurisdiction lies with a district court or with a court of appeals we must resolve that ambiguity in favor of review by a court of appeals. If a decision of an administrative agency is based, in sub- stantial part, on a statutory provision providing for exclu- sive review by a court of appeals, then the entire pro- ceeding must be reviewed by a court of appeals. We need not reach the question of what constitutes “substantial part” where, as here, three of the four orders in ques- tion were issued under 49 U.S.C. § 1486. In the absence of a clear indication that an alternative basis of jurisdic- tion was intended, we must presume that Seetion 1486 (Chapter 20) applies. Although a violation of a consent decree is primarily a breach of contractual obligations, federal courts, both trial and ° 4 re may enforce such decrees under the doctrine o federal jurisdiction. The interpreta- tion of a consent decree is a matter of law and subject to plenary review on appeal. United States v. Board of —” of City of Chicago, 717 F.2d 378, 382 (7th Cir. We do not question the inherent authority of district courts to enforce settlement agreements terminating li tion pending before them, see McCall-Bey v. Franzen, 85-2415 (7th Cir. Nov. 13, 1985), but it is not clear that ® Suburban did not file a motion to enforce the consent decree. Instead, it filed an entirely new complaint. Suburban argued that it had been misled by the clerk of the district court into filing a new claim. That allegation was rejected by the district court No. 85-1073 the consent decree in this case creates unfulfilled substan- tive obligations on the part of the City and the FAA. The parties to the Butterfield litigation agreed to a particular procedural format, that is, a specific method of dispute resolution. The FAA and the City have complied with the terms of the consent decree, and a motion to enforce the consent decree in the district court, at this stage of the proceedings, would serve no useful purpose. To a certain extent the jurisdictional problem posed by this case is one of characterization. The FAA need not have characterized its decision as one made pursuant to its authority under Section 1486. It might have issued its order under the authority of the Airport and Airway Im- provement Act. But since the FAA chose to rely on Sec- tior .486, petitioners are effectively foreclosed from pur- their claims in the district court. Congress has not provided us with a mechanism for determining whether a decision by the FAA to characterize its order as one made under Section 1486 is genuine or not. Suburban lastly contends that jurisdiction does not prop- erly lie with this court because there are disputed issues of fact regarding the scope and the content of the admin- istrative record which must be resolved in the district court. The asserted gross inadequacy of the administrative record, Suburban contends, suggests that the November 14 decision is not an “order” for purposes of Section 1486. We have previously stated that Section 1486 dictates a broad construction of what constitutes an “order.” Sima Products v. McLucas, 612 F.2d 309, 312-14 (7th Cir.), cert. denied, 446 U.S. 903 (1980). See also State of New York v. FAA, 712 F.2d at 808. The existence of a reviewable administrative record is the determinative element in de- fining an FAA decision as an “order” for purposes of Sec- tion 1486. City of Alexandria, 728 F.2d at 646. “If the FAA’s record were inadequate to permit review directly in the court of appeals, we would be inclined to find that the action, although final, is not an order within the mean- ing of [Section 1486]. However, we are not presented with that situation here.” Sima Products, 612 F.2d at 314 (cita- tions omitted). a ae eee A-18 No. 85-1073 Suburban argues that if this court exercises jurisdiction over the petition for review it must apply the — re- view tage of the Administrative ies view Act (the Hobbs Act), 28 U.S.C. § 2347(b). That Act provides that where the agency is not required to hold a hearing and has, in fact, not held a fo hearing, and when the pleadings present genuine issues of material fact, the case must be sent to the district court for a trial de novo. 28 U.S.C... § 2347(bX3). This is a novel argument. No reported case has applied the Hobbs Act to FAA final orders. There is no indication that Congress intended the Act to apply to any agency other than the five enumerated in the statute. There is ample evidence indicating that Co intended for deci- oar of the FAA to be reviewed solely under Section IV Before turning to the merits of this case we must also announce our standard of review of FAA decisions. Sec- tion 1486 provides that “findings of fact” by the FAA “if supported by substantial evidence, shall be conclusive.” In this case no formal hearings were conducted by the agency. Instead, the FAA received written submissions and conducted numerous nonadversary, informal proceed- ings. Two circuits have held that appellate review of in- formal agency action under Section 1486 is governed by an “arbitrary and capricious” standard of review. Rom- bough v. FAA, 594 F.2d 893, 896 (2d Cir. 1979); Tiger In- ternational v. CAB, 554 F.2d 926, 935-36 (9th Cir.), cert. son ule trch Ga es th In Starr v. FAA, oo , 3l ir. 1978), this court appeared to apply an abuse of discretion standard to review of inforrnat FAA action under Section 1486. In Aircraft Owners & Pilots Assoc. v. FAA, 600 F.2d 965, 969-72 & n.28 (D.C. Cir. 1979), however, the court held that informa! FAA action made on the authority of Section 1486 should not be over- turned uniess it is unsupported by substantial evidence. Similarly, in State of South Dakota v. CAB, 740 F.2d 619, ieee treeericiem cena ee A-19 No. 85-1073 621 (8th Cir. 1984), the court held that a Civil Aeronautics Board decision under Secticn 1486 “based upon factual consideration drawn from an informal, nonadversarial rec- ord consisting of information and comments submitted by opposing sides and interested parties” should be reviewed under a substantial evidence standard. We agree with the Eighth Circuit and District of Columbia Circuit that the substantial evidence test is the appropriate standard of review of FAA action under Section 1486. The fact that the agency findings in this case were the product of an informal information- ring process does not affect our standard of review. Congress has indicated that the sub- stantial evidence test is the proper standard for all FAA decisions under Section 1486. also White Industries v. FAA, 692 F.2d 532 (8th Cir. 1982); Pillai v. CAB, 485 F.2d 1018, 1023 (D.C. Cir. 1973) (applying substantial evi- dence standard); Law Motor Frewht v. CAB, 364 F.2d 139, 144 (1st Cir. 1966). Rombough, Tiger International, and Starr were proceed- ings requesting exemptions from a valid agency rule. Those cases relied heavily on Camp v. Pitts, 411 U.S. 138 (1973), which distinguished between the standard of review under the Administrative Procedure Act (“APA”) of agency ac- tion taken after a formal hearing and agency action taken without a formal hearing. Under the APA the substantial evidence test is only appropriate when revie findings made on a hearing record. 5 U.S.C. § 706(2XE); Camp, 411 U.S. at 141. The appropriate standard of review of informal agency action under the APA is whether the ac- tion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2XA); Camp, 411 U.S. at 142. The obvious difficulty with the rationale of those cases reviewing informal FAA deci- sions under the “arbitrary and nae”! or ‘“‘abuse of discretion” standards is that the APA is clear! Teor not 9 cable to FAA action under Section 1486. Bo ternational, 554 F.2d at 935-36, and Rombough, 594 te F 2 at 856, acknowledge that their reliance on Camp and the APA is by analogy only. But the argument by analogy is neither persuasive nor necessary where, as here, Con- | : A-20 No. 85-1073 gress has created a special review provision specifically designed to address precisely the type of case before the court. The specific review provisions of Section 1486 take precedence over the general provisions of the APA. Rom- bough, 594 F.2d at 895-96. In addition, we note that Tiger International, Rombough, and Starr all involved requests for exemptions from valid agency rules. All three courts were concerned with the administrative and practical difficulties of applying a sub- stantial evidence test to a petition for exemption. In Starr, for example, the court noted that: In proceedings requesting exemptions from a valid agency rule. . . the bulk of evidence is petitioner’s, since he must show that circumstances justify an ex- emption in his case. And if an agency’s decision to grant or mo | an exemption were to be judged under a substantial evidence rule, that agency would be forced to defend its standard rule in every exemp- tion proceeding. 589 F.2d at 311. In the instant case these concerns are nonexistent. The FAA in this case is not articulating a standard rule and the bulk of the evidence is not petition- ers’. We note that the facts in Aircraft Owners & Pilots Association and State of South Dakota v. CAB, like those in this case, also involved FAA approval of a specific con- struction project. In Association of Bank Travel Bureaus v. Board of Gov- ernors, 568 F.2d 549 (7th Cir. 1978), this court was called upon to determine the applicable standard of review of decisions of the Board of Governors of the Federal Re- serve System under 12 U.S.C. § 1848 which, like 49 U.S.C. § 1486, provides for exclusive review in the courts of peals and states that administrative findings shall be con- clusive if supported pe Hag eg v0 evidence.” The court held, however, that where the board engaged in rulemak- ing “which did not involve findings required by statute to be made or the record after opportunity for an agency hearing,” 568 F.2d at 552, the “arbitrary and capric:~us” standard is the proper standard of review. A-21 No. 85-1073 Association of Bank Travel Bureaus does not control this case. Aside from the obvious distinction that this ear- lier case involved the interpretation of a different statute, the decisionmaking rocesses of the FAA in this case are sufficiently unlike decisions of the Board of Gover- nors in Association of Bank Travel Bureaus to warrant our invocation of a substantial evidence rule. The “‘infor- mality” of the FAA decisionmaking process is less impor- tant to our decision than the fact that petitioner’s views were represented at virtually every stage of the decision- process. The arbitrary and capricious standard of the APA is designed to protect agency decisions made without the benefit of a complete record compiled in an adversarial or yee weer gs proceeding. The lengthy and elaborate decisionmaking procedures preceding the FAA’s November 14 decision in this case are not the sort of informal processes the drafters of the APA had in mind be they adopted the arbitrary and capricious standard of review. We realize that our decision appears to conflict with Tiger International or Rombough or Starr, “but we see no inconsistency between them and our treatment of the factually distinguishable case presently before us.” Tiger International, 554 F.2d at 936, n.19. In the absence of any other direction from Congress and in the absence of the special concerns evident in the facts of those cases, we must apply the plain language of Section 1486. V Having concluded that jurisdiction properly lies with this court and having clarified the standard of review we turn finally to the merits of the petitioners’ claims. The FAA Record of Decision reports the EIS submitted by the City and approved by the agency considered five alterna- tives to the proposed development: (a) alternative modes of travel; (b) utilization of other airports; (c) development of a new airport; (d) alternative levels of aviation demand; or (e) do nothing. The City rejected the possibility that A-22 No. 85-1073 alternative modes of travel such as rail, bus, or automobile of aviation demand at O’Hare. i , however, where those limits should be set on w the pro- Utilization of Other Airports. The airport that cacue eadanee edema ide ante ceites oo the Chicago Metropolitan Area is Midway Airport A-23 No. 85-1073 ri eet rtation under a series of grants to be funded by the F'AA’s Airport Improvement Pro- gram. The initial grant was issued in ber 1984. Petitioners allege that these terse statements are cum- pletely inadequate and unsupported by substantial evi- dence. The Record of Decision, however, represents mere- ] OT daca ae aes Ee into proposed development Record of Decision inco by reference ears of planning that pre- it. Our task as an appe court is to determine whether the FAA’s decision was based on substantial evi- dence, and the evidence we must evaluate consists of the entire administrative record. Of course, the size of the record is not the determinative factor, but rather its com- prehensiveness and the inherent reasonableness of the ultimate determination. Petitioners point out that perhaps half of the airline passengers flying into O’Hare arrive merely to transfer onto another eae They ese transfer passengers could some- soll tc Eel iuer aenests tatlne ton mond tec new construction at O’Hare. Petitioners’ argument presupposes that the City has and air travelers find O'Hare to be the most convenient or place to travel to and away from and to make ers to connecting flights. Moving air traffic to Milwaukee or Rockford or anywhere else is simply not within the er of the City to accomplish. The decision to make O'Hare, or any r airport, a “hub” airport belongs to the airlines and not to the Government. The City could consciously choose to do nothing about condi- tions at O’Hare and uit the congestion and delays to reach such an intol e level that airlines would be forced A-24 No. 85-1073 to send flights to other cities. But the City cannot direct the resulting overflow to any icular location. Nor is there any tee that the shift away from O’Hare would occur qui or without massive inconvenience to air trav- elers. In ition, no one has calculated the impact of a significant increase in flight operations in the airports age tg. moder 5nd Fogel: Snag to the environment of the communities surrounding those Siceovar, the CA as Giltaliy salad ra eos Moreover, the City has already for a limited Shifting yer | to build any new runways until 1995. flight operations might have merit ideally, but : eae y the FAA that such a shift is not possible or practical is amply supported by the record. A shift of t operations to Chicago-owned Midway Airport raises fewer of the problems that shifts to other airports in other cities do. Several cities already have two major airports. New York, for instance, has both LaGuardia and Kennedy. But Midway has even Jess available space than O’Hare and is situated in an area as densely popu- lated as the area around O’Hare. Upgrading ay to the point that it would eliminate the need to expand O’Hare would entail enormous costs. Moreover, the City has al- ready proposed to add significantly to Midway’s capacity. Another possible solution to the problem of congestion at O’Hare is to construct an rg new airport. Just as O’Hare replaced Midway —— primary airport in the area, a new airport could rep lace O'Hare as the princips air travel facility. There are sage ti Pe difficulties with idea. This new airport will 1D seco Cg sosuy vg Sry heer as large as O’Hare. hls senenss Oak 4 os St eee then seven thousand acres of undeveloped land will have to be acquired. This land will have to be reasonably close to the central city in order to make — Kangen pa But Chicago is literally surrounded by ulous suburbs. Locating thousands fe Lom sof land would be no easy task. In addition, the vaullding of a new airport would be the most expensive of all possible solutions to the O’Hare problem. A new airport would A-25 No. 85-1073 require years to construct and would have a difficult time passing environmental requirements. Moreover, the City and the FAA are in the midst of a formal study of the possibility of building a new airport in the Chicago area. A new airport may or may not be the best long-term solution to the problems of airport travel in and out of Chicago, but the City and the FAA needed to formulate a plan to deal with the short-term problems at O’Hare. The proposed dev represents a reasonable response + those problems one unable to satisfy everyone ected 10 Apart from objections to the FAA’s consideration of al- ternatives, Suburban challenges the treatment of the sub- stantive environmental requirements of both NEPA and the Clean Air Act. Those challenges can be characterized as criticisms of the methodology employed by the FAA in measuring projected increases in noise levels and de- creases in air quality. Suburban, for instance, quarrels with the FAA’s decision to calculate the noise impact of being service. But this particular decision of the FAA appears to us to be reasonable. Moreover, “{iJt is clearly within the expertise and discretion of the [FAA] to determine roper testing methods.” Sierra Club v. United States t of Transportation, 753 F.2d 120, 128 (D.C. Cir. 1985). ’s objections to the methodology and conclusions of the FAA’s procedures do not begin to establish that those procedures were not based on substantial evidence. 1° Two previous studies of proposals for a third airport have been undertaken. One study examined the possibility of constructing a new airport on landfill in Lake Michigan. Another study considered the p of a new airport in northeast Indiana. Both \dies were made av to the FAA and the City. A legis- lative task force was recently appointed to examine the environ- mental consequences of further expansion at O’Hare and the feasi- bility. of constructing a new airport. A-26 No. 85-1073 Suburban also alleges that FAA approval of the Airport Layout Plan violates section 176(c) of the Clean Air Act, 42 U.S.C. § 7506(c). Under the Clean Air Act the EPA is required to establish national ambient air quality stand- ards. 42 U.S.C. § 7409. Each state must develop its own implementation plan ar iy to achieve the national air quality standards. 42 U.S.C. § 7810. Private citizens may bring suit only for violations of the state plans and not the national standards. 42 U.S.C. § 7604. See Council of Committee nizations v. Metropolitan Tra ion Authority, F.2d 663 (2d Cir. 1982). The FAA found that the Plan will not violate the Illinois implementation plan. Rec. Vol. VI, at 1679-80. Moreover, the FAA ap- proved the ALP subject to the City’s agreement to take steps to mitigate the impact on air quality. The City’s compliance with this condition will be monitored by the FAA, the EPA, and the Illinois EPA. Rec. Vol. IV, at 1731-33. Under these circumstances we do not find that a violation of the Clean Air Act has occurred. We do not. suggest that our brief discussion of the dif- ficult choices confronting the and the FAA represents an exhaustive inquiry inte the methodology, and cal- culations of the planners of the O’Hare expansion. But neither is such an inquiry required. NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essen- tially procedural. . . . It is to insure a fully informed and well-considered decision, not necessarily a deci- sion the ju of the Court of Appeals . . . would have reached had they been members of the decision- making unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, .. . not simply because the court is unhappy with the result reached. Vermont Yankee Nuclear Power Corp. v. Natural Re- sources Defense Council, 435 U.S. 519, 558 (1978). eee A-27 No. 85-1073 It is axiomatic that reviewing courts should not substi- tute their judgments for those of an agency as to the en- vironmental consequences of its actions. Kleppe v. Sierra Club, 427 U.S. 410, n.21 (1976). Our role is to ensure that the FAA has taken a “hard look” at the environmental consequences of its action. Jd. “A reviewing court deter- mining whether the factual findings of the agency are based on substantial evidence weighs evidence in the record rting the decision against that which is contradictory. As long as sufficient evidence exists that a reasonable mind might accept as adequate to support a conclusion, the agency’s findings must be upheld.” Aircraft Owners & Pilots Ass’n, 600 F.2d at 970 (citations omitted). When measured against this deferential standard, the FAA’s decision to approve the Airport Layout Plan was clearly reasonable and clearly supported by substantial evidence. Suburban alleges that the City and the FAA have kept “two sets of books” regarding the Master Plan decision- ing process. The key element of the Master Plan is the twenty-year forecast of “metropolitan aircraft opera- tions demand.” Prior to the settlement of the Butterfield litigation in 1982 the City forecast an operations demand for the entire Chicago area of 943,000 flights for 1980; 1,064,500 flights for 1985; 1,234,500 flights for 1990; and 1,412,000 flights for 1995. Those estimates were based on 853,000 actual flights in 1974. O’Hare’s capacity was esti- mated at 950,900 flights. Petitsoners refer to this data as “the first set of books.” In 1983 the twenty-year metropolitan forecast was re- vised and this revision was employed in the final EIS and the FAA’s Record of Decision. The 1983 revised forecast estimated O’Hare’s capacity at 840,960 operations. The City estimates that the completion of Phase II will enable O’Hare to handle 920,000 annual operations in 1995. Without the project the City estimates 840,900 operations would occur in 1995. Petitioners refer to this revised forecast as the “the second set of books.” In essence, Suburban contends that this alleged second set of books was invented by the City in order to conceal the deficiencies in the Master | A-28 No. 85-1073 Plan made evident by the alleged “first set of books.” Specifically, petitioners contend that ‘“‘data, methodologies and calculations” for several key elements of the “‘second set of books” are “missing.” We confess to being somewhat mystified by Suburban’s argument. There is nothing missing from the administra- tive record. All the “data, methodologies and calculations” of the “first set of books” can be found in the MPS. In fact, petitioners’ brief cites to the appropriate sections of that study in its brief identifying the key elements of the “first set of books.” Suburban attempts to drive an artificial wedge between the so-called first and second set of books—a w pre- sumably created by the improper desire of the City to mislead petiticners. But it — far more likely that the 1983 revised estimate of O’Hare’s capacity was the’ result of a tardy recognition on the part of the City that 7 of unlimited expansion at O’Hare was not politi- y feasible nor environmentally wise. The B ld litigation and the activities of petitioners were no doubt instrumental in this realization. The FAA’s Record of De- cision notes that: “The City of Chicago decided to pursue a constrained development for O’Hare that would limit the future growth to that which could be handled by the existing runways and available land and by assuming im- proved air traffic control capabilities to accommodate in- creased operations.” The FAA’s approval of the Airport Layout Plan is clearly predicated on the City’s decision not to add new runways to O’Hare. New runway construc- tion would entail a new environmental review. It is obvi- ous that Suburban simply does not believe that the City intends to keep its word. But the City has represented to this court and to the FAA that it has no plans to build any new runways at O’Hare. Neither the FAA nor this court is in a position to gauge the sincerity of the City’s promises. Chicago has gone on record and if it breaks its promises, it will certainly find itself again in court. Suburban also alleges that the FAA’s November 14, 1984 Record of Decision violates the Airport and Airway A-29 No. 85-1073 Improvement Act. We agree with the district court that contrary to respondents’ contentions the Act applies to the O’Hare expansion plans. But Suburban has not estab- lished a violation of Act. The Airport and Airway Improvement Act requires an airport construction project receiving federal funds to be “reasonably consistent” with existing development plans for the area surrounding the airport. 49 U.S.C. § 2208 (bX1XA). The final EIS evidences great concern for the impact of the er development on the surrounding communities. entire decisionmaking process in this case belies the contention that the FAA has ignored the development concerns of the area around O’Hare. We point out that the Northeastern Illinois Planning Commis- sion, a state agency overseeing planning for the area of the State in which O’Hare is located, concluded that the proposed project was “consistent with plans and policies of the Commission.” M.P.S., Vol. XVI, at B-17. Suburban also contends that the FAA was required by the Airport and Airway Improvement Act to obtain a gov- ernor’s certificate before roving the Airport Layout Plan. 49 U.S.C. § 220&bX7Xa) provides that no applica- tion for federal funds for “a project involving airport loca- tion, a major runway extension, or runway location” shall be approved unless the governor of the state in which the project is located certifies that there is a “reasonable assurance” that the project will comply with applicable air and water quality standards. Suburban contends that the Airport Layout Plan con- templates two “major runway extensions.” Runway 27R and runway 32L are, in fact, to be extended under Phase II of the a 08s The FAA, however, contends that these are not “major” extensions for purposes of the Airport and Airway improvement Act. FAA Order 5050.4 deboes a major extension as one that will permit the accommoda- tion of aircraft three decibels louder than those currently using the runway. The FAA has determined that the pro- oes runway extensions will account for only a one deci- | inerease. “An agency’s interpretation of the statute A-30 No. 85-1073 it must administer is crdinarily accorded deference.” Illinois Commerce Commission v. ICC, 749 F.2d 875, 880 (D.C. Cir. 1984). We cannot say that the FAA’s determi- nation that the runway extensions contemplated by the ALP are not “major” is unreasonable." Finally, we feel compelled to address the equities of this case. Petitioners conceive of themselves as the innocent, passive victims of a relentlessly expansive O’Hare. They point out that many of the communities surrounding O’Hare were established long before the airport had been built. In all fairness, however, these same communities receive enormous economic benefits from their proximity to O’Hare. Moreover, many of these communities have resisted ai- tempts by the City to harmonize their own land-use reg- ulations with the aviation activity at O’Hare. In a perfect world, petitioners would be able to reap the benefits of their location and still be able to sleep without noise disturbances at night. Unfortunately, the FAA and the City are forced to operate in a world where even their most carefully considered decisions are likely to adversely affect some people. We are confident that the proposed development represents an honest and careful attempt to minimize those consequences and to accommodate the con- flicting interests in the best possible manner. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 11 In view of our disposition of the petition, we need not con- sider whether an injunction would have been an appropriate rem- edy in this case petitioners been entitled to some relief. Nor need we consider respondents’ motion to strike petitioners’ affi- davits. We have considered Suburban’s remaining arguments and find them to be without merit. USCA 60064—Midwest Law Printing Co., Inc., Chicago—3-13-86—450 A-31 603 F.Supp. 1013 SUBURBAN COMMISSION; The Village of Addison; The Village of Bensenville; The City of Des Plaines; The Village of Elk Grove Village; The City of Elmhurst; The Village of Franklin Park; The Village of Harwood Heights; The Vil- lage of Itasca; The Village of Niles; The Village of Nor- ridge; The City of Park Ridge; The Village of Schiller Park; The City of Wood Dale; and Lawrence C. Bieneman, Plaintiffs, v. Elizabeth Hanford DOLE, Secretary of the Department of Transportation; Russe!l A. Olson, Regional Representative of the Department of Transportation, Region V; Donald Engen, Administrator of the Federal Aviation Adminis- tration; Paul Bohr, Director, Great Lakes Region, Federal Aviation Administration; John Guidotti, Supervisor, Illinois Section, Chicago Airports District Office, Federal Aviation Administration; The City of Chicago, a municipal corpo- ration; and Thomas Kapsalis; Commissioner of the Depart- ment of Aviation of the City of Chicago, Defendants. No. 84 C 10387. United States District Court, N.D. Illinois, E.D. Feb. 28, 1985. MEMORANDUM OPINION AND ORDER ROVNER, District Judge. Plaintiffs consist of numerous suburban municipal entities surrounding O’Hare International Airport (“‘O’Hare’’), the Suburban O’Hare Commission, an organization of Illinois Municipal corporations created in 1982 for the purpose of } , a A-32 protecting its members and their citizenry from environmental damage caused by O’Hare, and Lawrence C. Bienemann, a private citizen of one of the plaintiff villages.1 The defendants are various Officials and employees connected with the Federal Aviation Administration (““FAA”), the Department of Trans- portation, and the City of Chicago and Chicago itself as a municipal corporation (“City defendants”). In its complaint, filed in this Court on December 4, 1984, Suburban O’Hare challenges an adjudicatory decision of the FAA rendered on November 14, 1984 by which the FAA approved Chicago’s 20- year “Master Plan” for the construction and operation of commercial air carrier facilities for the metropolitan Chicago area to meet long-term aircraft operations demand at air carrier airports. The FAA not only approved the expansion of aircraft operations at O’Hare, but also rejected other [1015] alterna- tives to handle the 20-year demand which would not increase operations at O’Hare.2 Suburban O’Hare’s complaint consists of 78 pages, 188 enumerated paragraphs, and 6 exhibits, some of which are lengthy in themselves. Although a detailed explanation of the complaint is not necessary for purposes of this Opinion, some discussion of the history and background of this case, as alleged by plaintiffs in their complaint, is helpful to an understanding of its present procedural posture. 1In this Opinion, the plaintiffs will be referred to collec- tively as “Suburban O’Hare.” 2 The rejected alternatives set forth in the November 14, 1984 FAA decision are: a) consideration of “alternative modes of travel” (e.g., rail, bus, and automobile); b) “utilization of other airports” (e.g., General Mitchell Field in Milwaukee, Wisconsin); c) the “development of a new airport” in the Chicago area; d) consideration of “alternative levels of aviation demand;” and e) “Do Nothing.” (Record of Decision, Com- plaint, Exhibit 4 at pp. 4-5.) A-33 Background The FAA’s November 14, 1984 decision was the culmina- tion of a dispute that began many years before and resulted, in part, from the procedural decision-making framework created by a Consent Decree entered by Judge Stanley J. Roszkowski of the United States District Court for the Northern District of Illinois on October 14, 1982 in the case of State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2410 (“Illinois v. Butterfield litigation”). According to the complaint, for many years the mayors and city councils of the plaintiff communities had asked for reduction in the noise and air pollution emanating from O’Hare. Suburban O’Hare alleges that instead of addressing these problems, the City defendants and the FAA had been following a piecemeal approach to the physical development of O’Hare which led to the ever-increasing expansion of O’Hare’s capacity to accommodate flight operations far beyond its Original design. Because the FAA awarded financial grants to 7 Chicago for the construction of individual projects without examining the long-term expansion program as a whole, fre- quently after the projects had already been built, the issue of how best to meet long term aviation growth was ignored. To stop this piecemeal expansion of O’Hare, the State of Illinois and several of the plaintiffs in this case brought the Illinois v. Butterfield \itigation, seeking disclosure of the City of Chicago’s and the FAA’s long-term aviation goals and a comprehensive exploration of alternatives to O’Hare expansion. The plaintiffs sought declaratory and injunctive relief under the National Environmental Policy Act, under the Administrative Procedure Act, and under various other federal statutes, to stop the expansion of O’Hare and the allegedly uncontrolled in- | crease in aircraft operations, and noise and air pollution resulting therefrom. In addition to examining the alternatives to meet the long-term aviation operations demand for the Chicago metropolitan area, the plaintiffs wanted the FAA to select an alternative to meet the demand which did not involve the ever-increasing expansion of O’Hare. Sper Seaside None tess hin 2 ee j | A-34 The Consent Decree The Consent Decree entered in the J/linois v. Butterfield litigation created a procedura! framework for such com- prehensive decision-making. According to Suburban O’Hare, in 1982 Chicago had proposed a massive construction program at O’Hare pursuant to an FAA sponsored “Master Plan.” That Master Plan program involved the construction of hundreds of individual projects, and Chicago was ready to proceed with a number of these projects, designated as Phase I projects. Illinois and the plaintiff municipal entities in the IJilinois v. Butterfield litigation were prepared to try to stop construction on Phase I projects by seeking injunctive relief. The Consent Decree thus resulted from an attempt to resolve competing interests: Phase I construction could proceed in return for the promise of the FAA and Chicago that all other construction proposed by the Master Plan, now called “‘Phase II’’ construc- tion, would not commence until the FAA made a.substantive decision to approve or disapprove the entire Master Plan proposal for [1016] meeting the 20-year metropolitan aircraft operations demand. The Consent Decree itself provides in relevar art: that “{a]ll future development at O’Hare will comply with all then applicable requirements of Federal and State of Illinois laws requiring environmental analysis and processing” (Consent Decree, | 1a); that construction of certain projects would not proceed until an Environmental Impact Statement was com- pleted (Consent Decree, § Id); and that “the entire Master Plan development for O’Hare .. . will be presented to the FAA for Airport Layout Plan approval and the related environmen- tal review, as a single, comprehensive submission” (Consent Decree, §] If). The Airport Layout Plan (“*ALP”’) is the final product of the Master Plan process and is based on the various facilities developed in the Master Plan to meet the 20 year long-term A-35 aircraft operations demand of the Chicago metropolitan area. A Final Environmental Impact Statement (““FEIS”) based on the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seg. (“NEPA”), accompanied the ALP, which was submitted by Chicago to the FAA in April 9, 1984. On May 31, 1984, the FAA approved the FEIS. The FAA described the issue in its Record of Decision reflecting the approval of the ALP as follows: The issue is whether to approve the Airport Layout Plan submitted by the City of Chicago. Approval of it would allow the City to proceed with implementing the proposed development at the airport and to request Federal funds for eligible items of development. Not approving it would prevent the City from proceeding with the development in a timely manner. (Complaint, Exhibit 4 at p. 2.) On November 14, 1984, the FAA approved the ALP as the final product of Chicago’s Master Plan. In the Record of Decision, the FAA specifically disavowed approval of the ALP for federal funding purposes: Approval of the Airport Layout Plan does not represent approval as far as necessity for the development is con- cerned nor is it a commitment of Federal funds for any future development. It signifies a concurrence for planning purposes based on review of conformance with cwrrent standards for safety, utility, and efficiency. (Complaint, Exhibit 4 at p. 2.) The Present Suit On December 4, 1984, Suburban O’Hare filed its com- plaint in this Court, together with a motion for a temporary restraining order and for a preliminary injunction, supported by A-36 extensive affidavits.2 The Complaint, although lengthy, is in two counts. In Count I, Suburban O’Hare asserts that the FAA and the City defendants, in approving the ALP in the November 14, 1984 decision, violated the “letter and the spirit” of the Consent Decree; NEPA; the Airport and Airway Improvement Act of 1982, 42 U.S.C. § 2201, et seg. (““AAIA”’); Section 176(c) of the Clean Air Act; and plaintiffs’ “constitutional right to full disclosure of all relevant data, calculations and methodology.” (Complaint, 4 172.) Suburban O’Hare alleges that it has a claim for relief in Count I both to enforce the Consent Decree and under the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. (Complaint, ¥7 173, 175.) Suburban O’Hare prays that this Court declare that the November !4, 1984 FAA decision approving the Master Plan is “null, void and of no force and effect ...” and that this Court enjoin the defendants “from taking any steps in reliance” on that decision.4 [1] Both the City defendants and the FAA have moved to dismiss Suburban [1017] O’Hare’s complaint for lack of sub- ject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 3 At a hearing on December 4, 1984 before this Court, Suburban O’Hare conceded that its motion for a temporary restraining order was prematurely brought because construction of Phase II projects was not set to proceed immediately as Suburban O’Hare thought. Thus, this Court denied the motion for a temporary restraining order as moot. A decision on Suburban O’Hare’s motion for 2 preliminary injunction has been held in abeyance pending resolution of the defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. 4 Count II of the complaint is brought on behalf of plaintiff Lawrence Bieneman, incorporates all of the allegations of Count I, alleges injury to Bieneman in his person and property, and requests a hearing in accordance with Section 554 of the APA, 5 U.S.C. § 554. eds i A-37 12(b)(6) of the Federai Rules of Civil Procedure.5 Because this Court holds that it lacks subject matter jurisdiction over this action, it does not reach the issues posed by the defendants’ motions to dismiss for failure to state a claim upon which relief may be granted. Finally, on January 14, 1984, Suburban O’Hare filed a Petition for Review in the United States Court of Appeals for the Seventh Circuit, in accordance with 49 U.S.C. § 1486(a), which is presently pending. Therefore, the dismissal by this Court of Suburban O’Hare’s complaint for lack of subject matter jurisdiction does not affect Suburban O’Hare’s substan- tive right to judicial review of the FAA’s November 14, 1984 decision: such review must be sought in the first instance in the Court of Appeals. This Court’s holding thus aliows the Seventh Circuit to examine the jurisdictional issue at the inception of this case, thereby avoiding the potential waste of time, effort, and expense to both the parties and the judiciary of litigating 5 In addition, Suburban O’Hare has moved to compel the FAA to file the administrative record of its November 14, 1984 decision in this Court. After full briefing on the issue, and after a pretrial conference on January 30, 1985 this Court ordered that the FAA file the record in this Court on February 14, 1985 because a district court unquestionably has subject matter jurisdiction to do that which is necessary until it decides the issue of its subject matter jurisdiction. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Moreover, this Court was mindful of the fact that the FAA in any event was preparing the record for filing in the Seventh Circuit Court of Appeals because Suburban O’Hare had filed a protective Petition for Review in that Court on January 14, 1985, and 49 U.S.C. § 1486(d) requires the FAA to file the record in the Court of Appeals within 40 days thereafter. That date was subsequently extended to February 22, 1985 on the FAA’s motion to extend the time for filing the record due to exigent circumstances. A-38 the case to final judgment in the district court only to have that judgment reversed ultimately for lack of subject matter jurisdic- tion. DISCUSSION I. Exclusive Jurisdiction Vests In The Court of Appeals to Review FAA “Orders” Under Section 1486. In its complaint, Suburban O’Hare seeks to set aside the November 14, 1984 decision of the FAA that approved the Master Plan and the ALP for O’Hare submitted by the City defendants. In addition to approving the ALP, that decision also made several other determinations under various FAA regulations promulgated under various sections of the Federal Aviation Act in Title 49 of the United States Code. The decision itself reflects that the FAA conducted its review pursuant to Parts 77, 152, and 157 of the FAA regulations, found in 14 C.F.R., respectively relating to: (1) obstruction evaluations for flight operations; (2) the federal airport aid program; and (3) notice requirements for airport construction or alteration. (Record of Decision, Complaint, Exhibit 4 at p. 19.) The FAA also granted exemptions pursuant to Part 139 of 14 C.F.R. In addition to authority under the Consent Decree, the FAA’s review pursuant to Parts 77, 157, and 139 of 14 C.F.R. clearly was conducted pursuant to authority vested in the FAA under Chapter 20 of Title 49; the FAA’s review pursuant to Part 152 of 14 C.F.R. was conducted pursuant to authority under Chapter 31 of Title 49. The primary issue in this case is whether jurisdiction to review the FAA’s November 14, 1984 decision vests in the ¢ strict court or in the Court of Appeals.® 6 All parties agree that the FAA’s November 14, 1984 Record of Decision was a final agency action ripe for judicial review. A-39 Contrary to the suggestion of the FAA, this issue is not simple. Courts have encountered substantial difficulty in determining when a challenged administrative action falls within the scope of a statute directing exclusive review in the Court of [1018] Appeals. No less an authority than Professor Kenneth Culp Davis has stated that the law governing the jurisdiction for review of challenged agency action “is both inordinately complex and extremely confused.” K. Davis, Ad- ministrative Law Treatise § 23.03-1, at 372 (Supp.1982). This complexity and confusion has spawned a number of law review articles. See, e.g., Comment, The Forum for Judicial Review of Administrative Action: Interpreting Special Review Statutes, 63 B.U.L.Rev. 765 (1983); Currie and Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Fo- rum, 75 Colum. L.Rev. | (1975); Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv. L.Rev. 980 (1975). {2} Despite the abundance of case law and scholarly commentary on the issue generally, the law is well settled that exclusive jurisdiction vests in the Court of Appeals to review all final orders of the FAA made under Chapter 20 of Title 49. Title 49 U.S.C. § 1486(a) provides: (a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter, except any order in respect of any foreign air carrier subject to the approval of the President as provided in section 1461 of this title, shall be subject to review by the court of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within sixty days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore. (Emphasis supplied.) Section 1486(d) states that the court “shall have exclusive jurisdiction to affirm, modify or set aside the order... .” A-40 In Gaunce v. de Vinceniis, 708 F.2d 1290 (7th Cir.1983), cert. denied, U.S. 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the Seventh Circuit dismissed sua sponte an appeal from a district court judgment granting the defendants’ motion for summary judgment. An airman claimed that the FAA violated her rights to procedural due process in revoking her airman’s certificate. The FAA revoked the airman’s certificate under its authority pursuant to Chapter 20 of Title 49. The Seventh Circuit heid that Section 1486 expressly provides that any challenge to an FAA decision made under Chapter 20 can be brought only in the Court of Appeals, and dismissed the case for lack of subject matter jurisdiction in the district court: And most importantly, in plain disregard of the express terms of section !486 of the Act, which prescribes direct and exclusive review in the court of appeals, plaintiff instituted the present action in the district court. This action is in derogation of the well settled principle that collateral attacks upon administrative orders are not per- missible. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48-50, 58 S.Ct. 459, 462-463, 82 L.Ed. 638 (1938); Robinson v. Dow, 552 F.2d 855, 858 (6th Cir.1975); Oling v. Air Line Pilots Ass’n., 346 F.2d [270] at 276-277 [( 7th Cir.1965)]; see Administrative Procedure Act § 10(b), 5 U.S.C. § 703 (1976) (“The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action ... in a court of competent jurisdiction.”); see also Denberg v. United States Railroad Retirement Board, 696 F.2d 1193 (7th Cir. 1983). It is clear from the statutory scheme established by Congress that the F.A.A. order was not subject to collateral attack in the district court. Robinson v. Dow, supra; Oling v. Air Line Pilots Ass’n., supra. Thus the district court lacked subject matter jurisdiction over the claims asserted by plaintiff-appellant. 708 F.2d at 1291-93 ( footnote omitted ). In dismissing the case for lack of subject matter jurisdiction in the district court, the Seventh Circuit adhered to a long line of [1019] decisions in this Circuit and others recognizing the congressional mandate in es Dats eek wet fa with A-4] Section 1486 of exclusive jurisdiction to review Chapter 20 FAA orders in the Courts of Appeal.” Thus, if the November 14, 1984 decision of the FAA was made solely under Chapter 20 of Title 49, subject matter jurisdiction to review that decision clearly vests only in the Court of Appeals under Section 1486. Suburban O’Hare sets forth three principal arguments to support its contention that the November 14, 1984 decision must be reviewed in the district court. First, Suburban O’Hare contends that the decision was made not under Chapter 20 of Title 49, but under Chapter 31 of Title 49, the federal airport aid statute. Accord- ingly, Section 1486, which applies only to FAA orders made 7 See, e.g., City of Aurora v. Hunt, 749 F.2d 1457, 21 ERC 2132 (10th Cir.1984) ( Tenth Circuit exercised its jurisdiction to review an FAA rule issued under Chapter 20 and under 14 C.F.R. Part 77); City of Alexandria v. Helms, 728 F.2d 643 (4th Cir.1984) (Fourth Circuit reversed for lack of subject matter jurisdiction the district court’s issuance of a preliminary injunction to prevent implementation of a Chapter 20 FAA order regarding flight patterns of Washington National Air- port); State of New York v. Federal Aviation Administration, 712 F.2d 806, (2d Cir.1983) (Second Circuit affirmed the district court’s dismissal, for lack of subject matter jurisdiction, of a challenge to the FAA’s refusal to amend an airport operating certificate it had previously issued under 49 U.S.C. § 1428 ( part of Chapter 20) }; Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir.1980); cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980) (Seventh Circuit held that a challenge to regulations promulgated under 49 U.S.C. § 1356 (part of Chapter 20) governing inspections of passengers was reviewable exclusively in the Court of Appeals); City of Roches- ter v. Bond, 603 F.2d 927 (D.C.Cir. 1979) (D.C.Circuit held that a “no hazard” determination of the FAA pursuant to 49 U.S.C. § 1501 (part of Chapter 20) was an order reviewable exclusively in the Court of Appeals, following other courts “consistently holding that judicial review under these statutes is exclusive.” Id. at 934); Oling v. Air Lines Pilots Association, 346 F.2d 270 (7th Cir.1965) (Seventh Circuit reversed a challenge to an FAA action based on Section 408 ( part of Chapter 20) ). A-42 under Chapter 20, does not vest exclusive jurisdiction to review the decision in the Court of Appeals. Closely tied to this argument is Suburban O’Hare’s assertion that the district court clearly has subject matter jurisdiction to hear Suburban O’Hare’s claim that the defendants violated the Consent Decree in the J/linois v. Butterfield litigation. Finally, Suburban O’Hare contends that even if the November 14, 1984 decision was made pursuant to Chapter 20 of Title 49, the decision does not constitute an “order” reviewable exclusively in the Court of Appeals under Section 1486 because the FAA administrative record is either nonexistent or is based upon disputed issues of fact which must be examined and reviewed in the first instance in the district court pursuant to the general jurisdictional grant of 28 U.S.C. § 1331 and Sections 702 and 706 of the Adminis- trative Procedure Act. Each of these arguments is examined below. Il. The November 14, 1984 FAA Decision Consisted of FAA Orders Rendered Under Both Chapters 20 and 31 of Title 49. [3] Suburban O’Hare contends that the November 14, 1984 decision of the FAA was not an “order” made under Chapter 20 and thus is not exclusively reviewable in the Court of Appeals under Section 1486 which provides for such ex- clusive review only for orders made under “this chapter.” 49 U.S.C. § 1486(a). Instead, Suburban O’Hare asserts that the ‘‘order” challenged here is the FAA’s substantive and proce- dural compliance with the Airport and Airway Improvement Act of 1982, 49 U.S.C. § 2201, et seg.,8 and as such was made under Chapter 31 of Title 49. 8 The Airport and Airway Improvement Act of 1982 (“AAIA”), 49 U.S.C. § 2201, et seg., is the current federal airport aid statute appearing in Chapter 31 of Title 49. Its immediate precessor was the Airport and Airway Development Act of 1970 (P.L. 91-248), which in turn was immediately preceded by the Federal Airport Act of 1946 (P.L. 377). Each of these statutes has always been codified separately from Chapter 20 of Title 49. wa Pin A AY REAP, SASH ATI SPS AAR LA AAS EA OBI) WAIN UNE NNN Cesk RENOIR RE ON Sh A WaNiciCNS EFAS te anak aan sei Oe ee NN ee A-43 Suburban O’Hare attached the November 14, 1984 letter approving the ALP and the 20 page Record of Decision of the FAA as Exhibits 3 and 4, respectively, to its complaint. As such, they are part of the [1020] complaint pursuant to Rule 10 of the Federal Rules of Civil Procedure. Suburban O’Hare contends that by this approval, reflected in Exhibits 3 and 4, the FAA violated the letter and spirit of the Consent Decree and several federa! laws, including the AAIA, NEPA, the Clean Air Act, and the APA. The November 14, 1984 decision reflects that the FAA relied upon 14 C.F.R. Part 77 (promulgated under Chapter 20), Part 157 ( promulgated under Chapter 20), and Part 152 (promulgated under Chapter 31). In addition, the FAA granted the City an exemption from the 14 C.F.R. Part 139 regulations (promulgated under Chapter 20). Thus, of the four “orders” entered by the FAA, three were under Chapter 20.9 8 Part 157 states that it is promulated under 49 U.S.C. §§ 1350, 1354(a), and 1355, See 14 C.F.R. Part 157 at p. 156 (1984). Part 77 states that it is promulgated under 49 U.S.C. §§ 1304, 1348, 1354, 1431, and 1501. The FAA’s authority for the grant to the City of an exemption from the clearance standards of airport taxiways under Part 139 of 14 C.F.R. arises from 49 U.S.C. §§ 1432 and 1421(c). All of these statutory references are part of Chapter 20. for example, Section 1350 States: § 1350. Establishment or construction of airports and landing areas not involving expenditure of Federal funds. In order to assure conformity to plans and policies for, and allocations of, airspace by the Administrator under section 1348 of this title, no airport or landing area not involving expenditure of Federal funds shall be established, or constructed, or any runway layout substantially altered unless reasonable prior notice thereof is given the Adminis- trator, pursuant to regulations prescribed by him, so that he may advise as to the effects of such construction on the use of airspace by aircraft. By contrast, Part 152 of 14 C.F.R. was promulgated under the Airport and Airways Development Act of 1970, as amended, 49 U.S.C. § 1701, et seg., which subsequently became part of Chapter 31 of Title 49. A-44 Suburban O’Hare does not contest the fact that the November 14, 1984 FAA decision constituted at least in part an “order” entered under Chapter 20. In its memorandum in opposition to the defendants’ motion to dismiss, Suburban O’Hare stated: “‘Of the ‘orders’ entered by the FAA on Novem- ber 14, 1984, two of those orders were under Chapter 20.” (P. 4.) Suburban O’Hare contends that “[t]hese orders are not challenged in this action.” (Pp. 4-5.) Suburban O’Hare further contends that because the November 14, 1984 FAA decision was also based on the AAIA, Chapter 31 of Title 49, the exclusive jurisdiction of the Court of Appeals to review the entire order under Section !486 is usurped by the inclusion of this additional element. Indeed, Suburban O’Hare’s allegation that the defendants have violated the Consent Decree is intimately related to its argument that the November 14, 1984 FAA decision should have been made properly under Chapter 31. That argument was succinctly summarized by Suburban O’Hare in its. memorandum in opposition to the defendants’ motion to dismiss, at pp. 16-17: In this lawsuit, Plaintiffs also seek to enforce the 1982 Consent Decree which sets the legal framework for the substantive decision made by the FAA. As set forth in the Complaint and as admitted by Defendants, the Consent Decree remedied the past piecemeal practices followed by Chicago and the FAA in giving isolated grants, and required the FAA to make the substantive decisions nor- mally made at the time grant applications were received now—at the time the entire Master Plan was sub- mitted—rather than wait until individual isolated grant applications are received. Chicago and the FAA admit these allegations for the purposes of these motions, and the FAA itself stated that it was making these decisions now in its November 14, 1984 approval. However, in their memoranda, Defendants make unsupported assertions that the requirements of the Airport and Airway Improvement Act of 1982 do not apply because no grant application has been made. That argument is exactly what the Consent Decree framework doy sa Sn wn aed aan PNM TERT AN Lak DRA SE AE le ALE PDN dobid eed Pha ean it, tg es 5 Abney re bn 8s Sn Ris A-45 was intended to prevent by requiring the substantive decision to be made now rather than after the project was almost complete. ( Footnote omitted. ) Suburban O’Hare’s argument does have some meritin that there is support in the [1021] Consent Decree, in the Final Environmental Impact Statement, and in the November 14, 1984 FAA decision itself for Suburban O’Hare’s position that the parties to the Consent Decree contemplated that that decision would be rendered under the AAIA, Chapter 31. The defendants’ contention that the AAIA is not applicable because it is uncontested that no federal funding has yet been sought for the Phase II construction is unpersuasive because it is equally uncontested that federal funds, in the amount of at least $43 million, will be sought ultimately to help fund the Phase II construction. The defendants can not avoid their obligations under the AAIA simply because they have not yet applied for such funding, particularly in light of Suburban O’Hare’s allega- tions, which must be taken as true for purposes of these motions to dismiss, that such piecemeal after-the-fact funding of con- struction projects resulting in the expansion of O’Hare was precisely what the Consent Decree was designed to prevent. Moreover, after briefing was completed on these motions, the Court was informed that the City did indeed apply for a $1.2 million federal grant for Phase II construction as early as November 30, 1984, and the plaintiffs have been granted leave to amend their complaint to so allege. Nonetheless, Suburban O’Hare has not demonstrated that the FAA’s approval under Chapter 20 pursuant to Parts 77, 139, and 157 was either unnecessary or insubstantial. Neither has Suburban O’Hare alleged that those parts of the FAA’s November [4, 1984 decision that are based on Chapter 20 are separable from those parts based on Chapter 31. Nor has Suburban O’Hare alleged that the FAA’s Chapter 20 orders are a mere ruse to avoid review of the defendants’ conduct A-46. pursuant to the Consent Decree and under the APA in this Court. In light of the overwhelming weight of authority that mandates exclusive review in the Court of Appeals whenever a FAA decision based on Chapter 20 is challenged, see discussion below, this Court believes that it cannot exercise its general federal question jurisdiction to review the FAA November 14, 1984 decision which at least in part, as Suburban O’Hare concedes, consists of orders rendered pursuant to the FAA’s statutory authority under Chapter 20 of Title 49. Thus, even if the defendants did in fact violate the Consent Decree as Suburban O’Hare contends by failing to “make the substantive decisions [required by the AAIA] now in its November 14, 1984 approval,” it is undisputed that the November 14, 1984 FAA decision was made, at least in part, under Chapter 20 of Title 49. As such, it is reviewable only by the Court of Appeals under Section 1486. The November 14, 1984 FAA decision is a unitary order approving, under various statutory requirements, the form that O’Hare will take when Phase II construction is completed. Suburban O’Hare challenges the FAA’s procedural and substantive compliance with various federal laws in reaching that decision to approve the Master Plan and the ALP for O’Hare. Moreover, Suburban O’Hare seeks not to set aside an isolated component of the decision, but that this Court declare that “the November 14, !984 FAA decision approving the City of Chicago’s Master Plan project is null, void and of no force and effect ...” and that an injunction be entered restraining defendants “from taking any steps in reliance on the November 14, 1984 FAA decision. .. .” Accordingly, Suburban’s O’Hare’s complaint is an attack on a single unitary order entered by the FAA. In conceding that the November 14, 1984 FAA decision is based in part on Chapter 20, Suburban O’Hare has in effect conceded that the entire decision must be reviewed only in the Court of Appeals. iat Win bee ale btatsttatarts', A-47 Even if the November 14, 1984 FAA decision should have been made only pursuant to Chapter 31 of Title 49, the AAIA, the cases cited by Suburban O’Hare do not support its con- tention that the district court has general federal question jurisdiction under 28 U.S.C. § 1331 and the APA te review an order under Chapter 31. Suburban O’Hare contends that the jurisdictional issue before this Court is_ directly con- [1022 ]trolled by the decisions in Schwab v. Quesada, 284 F.2d 140 (3d Cir.1960), and City of Dallas v. Rentzel, 172 F.2d 122 (Sth Cir.1949), cert. denied, 338 U.S. 858, 70 S.Ct. 99, 94 L.Ed. 525 (1949), both involving the Federal Airport Act, a pre- decessor to the AAIA. Suburban O’Hare asserts that in these cases the FAA itself successfully argued to the Circuit Courts of Appeal that because decisions made under the Federal Airport Act were made under a Chapter in Title 49 different from Chapter 20, the exclusive jurisdiction provision of Section 1486 did not apply, thus rendering those decisions unreviewable in the Courts of Appeal. But none of the cases cited by Suburban O’Hare address the jurisdiction of the district court to review decisions under the Federal Airport Act. Indeed, in Schwab, the Third Circuit found no jurisdiction to review the decision under the Federal Airport Act because it held that the decision was unreviewable in any court. 284 F.2d at 142. In City of Dallas, the Fifth Circuit acknowledged the FAA’s argument that the order under the Federal Airport Act was unreviewable in any court, but found it unnecessary to reach the issue. 172 F.2d at 123 and nn. 7, 8. Cf. Morris v. Helms, 681 F.2d 1162, 1164 (9th Cir.1982}. Whatever the continuing validity of the Schwab and City of Dallas cases, particularly in light of the new AAIA which is at issue here, they do not stand for the proposition that if the Court of Appeals lacks jurisdiction to review an FAA order, the district court necessarily has such jurisdiction: the order may simply be unreviewable. Because this Court holds that the FAA November 14, 1984 decision is reviewable in the Court of Appeals under Section A-48 1486, this Court need not, and, therefore, does not decide whether a Chapter 31 FAA order pursuant to the AAIA is unreviewable in any court. To the contrary, district courts have assumed general federal question jurisdiction to decide cases brought under the AAIA as well as other federal statutes, although these courts have not directly addressed the jurisdictional issue because they were not directly confronted with it and because they unquestionably had jurisdiction over claims based on other federal statutes. See, e.g., Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Citizens Airport Committee of Chesterfield County v. Volpe, 351 F.Supp. 52 (E.D.Va.1972). It is worth noting, however, that Chapter 31 contains no judicial review provision itself. Moreover, the Supreme Court has recently held that neither the general federal question jurisdiction under 28 U.S.C. § 1331 nor the APA provide an independent basis for establishing jurisdiction in the district court to review an agency’s decision when a statute directs an exclusive form of judicial review: With respect to our hoiding that there is no jurisdiction pursuant to § 1331, the dissent argues that § 405(h) {prescribing a different form of review for Medicare claims] is not a bar to § 1331 jurisdiction because Ringer’s challenge to the Secretary’s rule is “arising under” the Administrative Procedure Act, not the Medicare Act. Post, at 647 [104 S.Ct. at 2025], But the dissent merely resur- rects an old argument that has already been raised and rejected before by this Court in Weinberger v. Salfi [422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)], supra. As we have already noted earlier, ante, at 636 [104S.Ct. at 2022], the Court rejected the argument that the claimant in Salfi could bring his constitutional challenge to a Social Security Act. Ringer’s claim may well “‘aris[e] under” the APA in the same sense that Salfi’s claim arose under the Constitution, but we held in Sa/fi that the constitutional claim was nonetheless barred by § 405(h). It would be anomalous indeed for this Court to breathe life into the ja acihidaveseld JA étiteabbind P ae a EVE tte Sees Pare : : A-49 dissent’s already discredited statutory argument in order to give greater solicitude to an APA claim than the Court thought the statute allowed it to give to the constitutional claim in Salfi.. Heckler v. Ringer, U.S. __, 104 S.Ct, 2013, 2025-26, 80 L.Ed.2d 622 (1984); see [1023] also Califano v. Sanders, 430 U.S. 99, 104-09, 97 S.Ct. 980, 983-86, 51 L.Ed.2d 192 (1977) (Supreme Court held that Section 702 of the APA must be used together with 28 U.S.C. § 1331 and with another substantive statute to confer subject matter jurisdiction on the district court; Section 702 and 28 U.S.C. § 1331 alone do not confer jurisdic- tion ). The holding of this Court that the November 14, 1984 decision of the FAA is reviewable only in the Court of Appeals because it is a mixed decision made under the FAA’s authority based on both Chapter 20 and Chapter 31 of Title 49 is consistent with the law of this and other Circuits. In cases involving the review of FAA orders which also contained claims made under other statutes or the Constitution, and in cases involving paratilel statutes with provisions similar to Section 1486 vesting exclusive jurisdiction in the Court of Appeals for judicial review of final agency orders, this Circuit and others have uniformly held that judicia! review rests exclusively in the Court of Appeals. For example, as noted above in Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir. 1983) cert. denied, U.S. , 104 S.Ct. 417, 78 L.Ed.2d 354 ( 1983), the Court of Appeals sua sponte dismissed for lack of jurisdiction on appeal from a district court judgment upholding the procedural due process afforded an airman by the FAA in a hearing relating to the revocation of an airman’s certificate. As here, the plaintiff in Gaunce raised constitutional claims, but the Seventh Circuit held that even the assertion of a claim under the Constitution, jurisdiction over which indisputably vests in the district court under 28 U.S.C. § 1331, cannot divest the Court of Appeals’ exclusive jurisdiction to decide the entire order: A-50 The statutorily prescribed requirements cannot be dis- pensed with merely because the administrative proceed- ings dealt with an agency’s proof of specified regulatory violations, while appellant is raising a due process con- stitutional claim in the judicial proceeding. So long as effective means for judicial review are ultimately available where the constitutional claims can be raised, appellant may not dispense with the requirement of prior adminis- trative review, otherwise judicial review would be an abstract process. Id. at 1293. In City of Alexandria v. Helms, 728 F.2d 643 (4th Cir.1984), the Fourth Circuit reversed a preliminary injunction issued by the district court to prevent implementation of an FAA order relating to a “scatter plan” for flight patterns at Washington’s National Airport instituted by the FAA to more equitably distribute aircraft noise among area surrounding the airport. The court held that the district court lacked subject matter jurisdiction because Section 1486 “vests review of FAA orders exclusively in the Courts of Appeals.” Jd. at 645. The Court of Appeals flatly rejected the plaintiffs’ contention that their claims under NEPA provided an independent basis for jurisdiction in the district court: Alexandria and Arlington additionally contend that the National Environmental Policy Act ( NEPA) provides an independent basis for district court jurisdiction in this case. Cf. City of Irving v. Federal Aviation Administration, 539 F.Supp. 17, 34 (N.D.Tex.1981) (FAA’s decision not to issue an EIS was subject to review in the district court when there was no order to review and only claim was under NEPA). However, when review of an agency order is at issue and when Congress has vested exclusive jurisdic- tion over that review in the Courts of Appeals, NEPA does not provide independent grounds for district court jurisdic- tion. Id. at 646 ( footnote omitted ). ee = Bk wrens ne bere A-51 Similarly, in City of Rochester v. Bond, 603 F.2d 927 (D.C.Cir.1979), the District of Columbia Circuit Court of Appeals rejected the argument that plaintiffs NEPA claim provided a basis for concurrent district court jurisdiction for review of an FAA advisory determination that construction of a radio antenna near an airport would be “no hazard,” a determination which the court deemed to constitute a final order [1024] exclusively reviewable only in the Court of Appeals: First, we disagree that the district court may exercise concurrent jurisdiction merely because a violation of NEPA is alleged. The allegation may be raised directly in the courts of appeals; and insofar as it may affect the lawfulness of a directiy appealable order we think it must be. Id. at 936 ( footnotes omitted ).1° The Seventh Circuit has also held that the inclusion of a NEPA claim provides no basis for concurrent jurisdiction permitting district court review of an agency’s decision. In City of West Chicago, Illinois v. United States Nuclear Regulatory Comm’n., 701 F.2d 632 (7th Cir.1983), the court affirmed the district court’s dismissal, for lack of subject matter jurisdiction, of a suit challenging the Nuclear Regulatory Commission’s 1° In a footnote, Bond distinguished State of Illinois ex rel. Scott v. Butterfield, 396 F.Supp. 632 (N.D.II1.1975), because there was no final agency action by the FAA in the Illinois v. Butterfield \itigation at that time. 603 F.2d at 936, n. SI. Clearly the district court had subject matter jurisdiction in the Illinois v. Butterfield \itigation under 28 U.S.C. § 1331 when it entered the Consent Degree in 1982. Suburban O’Hare’s argument that the decision of the district court set forth in State of Illinois ex rei. Scott v. Butterfield, 396 F.Supp. 632 (N.D.IIL 1975) that it possessed subject matter jurisdiction is res judicata here is disingeneous in light of the fact that no final FAA orders, Chapter 20 or otherwise, which the district court was asked to review, had issued at that time. A-52 order allowing the demolition of certain buildings under the parallel judicial review provision, 28 U.S.C. § 2342(4), con- cerning review of the Commission’s Order. The Seventh Circuit concluded that the district court lacked jurisdiction to determine if the agency’s order complied with NEPA: Despite the admission in its brief, the City comtinues to argue that the district court had jurisdiction to review the claim of illegal segmentation under NEPA. Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir.1980), certiorari denied sub nom. Gener- al Pub. Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824. See supra at 650-652. Suffice it to say that as in this case, where final agency action brings an order within the ambit of 28 U.S.C. § 2342(4), the district court has no concurrent jurisdiction with the court of appeals to review the order for NEPA compliance. City of Rochester v. Bond, 603 F.2d 927, 936 (D.C.Cir.1979). Id. at 652 n..21.1' See also Sierra Club. v. United States Dept. of Transportation, 753 F.2d 120, No. 83-1832 (D.C.Cir.1985) (Court of Appeals exercised jurisdiction under Section 1486 to decide a challenge to two FAA orders entered under Chapter 20 even though the petitioners claimed that, in addition to NEPA, a section in another chapter of Title 49, 49 U.S.C. 11 The district court’s decision in City of West Chicago, which was affirmed, also held that the inclusion of a due process claim did not alter the Court of Appeals’ exclusive jurisdiction: Involved here is an express jurisdictional mandate to the court of appeals which this court must respect. Although the plaintiff is raising a constitutional claim, it is directed to, and arises from the NRC’s grant of a license amend- ment under the AEA. Therefore, this constitutional chal- lenge pertains to the final order issued by the NRC and must be reviewed by the court of appeals. City of West Chicago, Illinois v. United States Nuclear Regu- latory Comm’n, 542 F.Supp. 13, 15 (N.D.IIL.1982). (Citations omitted. ) A-53 § 303(c), had been violated by the order); City of Aurora v. Hunt, 749 F.2d 1457. 21 ERC 2132 (10 Cir.1984) (Tenth Circuit reviewed an FAA rule issued under Chapter 20 and also decided a challenge under NEPA pursuant to its exclusive jurisdiction under Section 1486). Thus, Suburban O’Hare’s claims under Chapter 31 of Title 49, as well as its claims under NEPA, and the Clean Air Act, and the due process con- stitutional claim, cannot defeat Section 1486 exclusive jurisdic- tion in the Court of Appeals of an FAA decision rendered in part under Chapter 20. The Seventh Circuit has stated repeatedly that even where doubt exists as to whether jurisdiction properly lies in the Court of Appeals or the district court to review an agency decision which arguably [1025] may fall within the ambit of an exclusive Court of Appeals’ jurisdictional provision, all doubt must be resolved in favor of direct review by the Court of Appeals. E.g., Indiana & Michigan Electric Co. v. United States Environmental Protection Agency, 733 F.2d 489, 491 (7th Cir.1984) (A “judge” made presumption [exists] in favor of court of appeals review in doubtful cases ... [because] district court review adds another laver to the review process... .); Field Container Corp. v. Interstate Commerce Comm’n., 712 F.2d 250, 255 ( 7th Cir.1983), cert. denied, US. 104 S.Ct. 701, 79 L.Ed.2d 167 (1984) (“... the policy of routing review proceedings to the courts of appeals directly where the statute will allow this entitles us to resolve our doubts in favor of [court of appeals] jurisdiction ...”); Denberg v. United States Railroad Retirement Board, 696 F.2d 1193, 1197 (7th Cir.1983), cert. denied, ___. US. 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984) (Any jurisdictional ambiguity is resolved in favor of Court of Appeals jurisdiction.). Indeed, even Suburban O’Hare’s assertions that this Court must exercise its jurisdiction under §1331 and the APA to decide its claims that the defendants violated the Consent Decree cannot vitiate the A-54 exclusive jurisdiction of the Court of Appeals in the first instance. '2 Ill. Suburban O’Hare’s Allegations Of Consent Decree Viola- tions Do Not Affect The Exclusive Jurisdiction Of the Court Of Appeals. Suburban O’Hare asserts that the Consent Decree entered into between the parties in the Ji/linois v. Butterfield litigation provided that the FAA was to approve or disapprove Chicago’s 20 year long-term development program to meet Chicago’s future aviation needs through the “Master Plan” decision- making process. To accomplish this, the FAA was to compare Chicago’s Master Plan proposal with all other alternatives to meet Chicago’s long-term aviation needs, and toward this end the FAA was to prepare or complete a Final Environmental Impact Statement pursuant to the requirements of NEPA. According to Suburban O’Hare, the Consent Decree provided a procedural framework in which both FAA substantive and procedural decisions, normally not undertaken until the receipt of a federal grant application, would be made at the time the Master Plan was submitted and before any Phase II construc- tion was to begin. By entering into the Consent Decree, the plaintiffs in the Illinois v. Butterfield \itigation purportedly received the promise of the FAA and the City defendants that construction of Phase I] would not begin until the defendants followed the procedural 12 See Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467, 472 (7th Cir. 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981) (court held that exclusive jurisdiction lies in the court of appeals to review an 1.C.C. order even though the order itself was not directly attacked because “‘the practical effect of a successful suit would contradict or countermand a Commission order,” quoting B.F. Goodrich Co. v. Northwest Industries, Inc., 424 F.2d 1349, 1353- 54 (3d Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed.2d 50 (1970)). A-55 prerequisites set forth in the Decree leading to a decision to approve or disapprove the Master Plan. In turn, the defendants allegedly were allowed to proceed with Phase I construction without preparing an Environmental Impact Statement and without ongoing litigation over Phase I construction. As an initial matter, it must be noted that if Suburban O’Hare was indeed interested in enforcing the terms of the Consent Decree, as it contends, it should have filed a motion for such enforcement and the imposition of civil contempt and other relief in the Jilinois v. Butterfield litigation, Case No. 74 C 2410. Instead, Suburban O’Hare filed a new complaint which was randomly assigned to this Court. Suburban O’Hare states that in filing a new complaint it merely followed the directions of the Office of the Clerk of this District. Suburban O’Hare allegedly was informed by that Office that the Illinois v. Butterfield case was closed for administrative purposes when the Consent Decree was entered in October, 1982. Moreover, Judge [1026] Roszkowski, who entered the Consent Decree, has since transferred to the Western Division of the United States District Court for the Northern District of Illinois. According to Suburban O’Hare: The office of the Clerk of the Court has advised us that when a matter is presented to the assignment desk that relates to a closed case that had been assigned to Judge Roszkowski, the assignment desk would assign the matter to a new judge by lot. That procedure was followed in this case. Plaintiffs Memorandum On Consent Decree Issues at p. 10 n. 5S. Unfortunately, however, Suburban O’Hare neglects to mention that the Office of the Clerk never informed it to file a new complaint in the district court. This Court has been informed by Stuart Cunningham, the Clerk, that Suburban O’Hare properly should have filed a motion for enforcement of the Consent Decree in the //linois v. Butterfield litigation, Case A-56 No. 74 C 2410, at which point it would have been reassigned at random by order of the Executive Committee from Judge Roszkowski’s docket if Judge Roszkowski did not wish to retain the case. In this instance, although the result may have been the same because the matter ultimately was assigned to this Court at random by lot, insistence on the proper procedure is not trivial. First, Judge Roszkowski, the judge who entered the Consent Decree and who was familiar with the progress of the Illinois v. Butterfield \itigation to that point, should have been given the opportunity to retain it. Judicial economy dictates such a result as this Court was forced to search through three containers of court files from the federal warehouse of this district to familiarize itself with the case.'3 Second, this Court hesitates to establish a precedent of allowing the procedure adopted by Suburban O’Hare to be followed in the future. Because this Court and others in this District are burdened with literally hundreds of cases, it is both wasteful and counter- productive to file a new complaint whenever enforcement of a previously-entered consent decree in another case is sought. '4 [4-6] Nonetheless, Suburban O’Hare quite properly argues that there is no question that subject matter jurisdiction 13 Many of the court documents in the J/linois v. Butterfield litigation were missing from these containers. Indeed, because the Consent Decree itself was missing, and because Suburban O’Hare omitted to attach it to the complaint and then belatedly submitted a version of the Consent Decree different from that submitted by the defendants, much needless time and energy were devoted in searching for it. 14 The cases cited by Suburban O’Hare as precedent for the procedure it followed here of filing a new complaint simply do not support such a procedure. For example, in Sarabia v. Toledo Police Patrolman’s Association, 601 F.2d 914 (6th Cir.1979), nothing in the court’s opinion indicates that the enforcement order appealed from was entered in any case but the original case in which the consent decree was entered. ee A-57 exists generally in the district court to enforce its own consent decree. In the Consent Decree entered in the Illinois v. Butterfield litigation, the district court expressly retained jurisdiction to enforce the decree, but even had it not done so, it is well-settled that a district court has ancillary jurisdiction to enforce its own consent decree. Sarabia v. Toledo Police Patroiman’s Ass’n., 601 F.2d 914 (6th Cir.1979); see generally, Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d. § 3513. Although the normal remedy for a consent decree violation is the imposition of civil contempt, see, e.g., United States v. Board of Education of the City of Chicago, 744 F.2d 1300, 1308 (7th Cir. 1984): Shakman v. Democratic Organization of Cook County, 533 F.2d 344 (7th Cir.1976), cert. denied, 429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976), the court may award any appropriate relief in addition to enforcing the decree. See, e.g., Shakman, supra at 351 (award- ing attorneys’ fees and expenses as well as compensatory damages); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979) (“‘The district court is not free to exercise its discretion and withhold an or-[1027jder in civil contempt awarding damages, to the extent they are estab- lished.”’). Despite the existence of jurisdiction generally to enforce its own judgments, the question posed in this case is whether the district court must exercise its jurisdiction to enforce a Consent Decree that in essence requires it to review an agency decision which Congress has mandated by statute is reviewable only in the Court of Appeals. This question is a matter of first impression so far as this Court is able to determine.'5 For the 15 From the inception of this case, this Court has repeat- edly asked the parties to brief, by citing relevant authority, the issue of whether Suburban O’Hare’s claim of Consent Decree violations affects the exclusive jurisdiction of the Court of Appeals to review the FAA November 14, 1984 decision. Neither the FAA nor the City defendants have cited any cases, ( Footnote continued on following page) A-58 reasons set forth below, this Court holds that it cannot exercise subject matter jurisdiction to enforce the Consent Decree under the circumstances presented by this case. [7] First, the cases discussed in Sections I and II of this Opinion unequivocably hold that the assertion of any claim for relief over which the district court has general federal question jurisdiction does not divest the exclusive jurisdiction of the Court of Appeals to review an FAA decision based in part on Chapter 20 under Section 1486. For example, in Gaunce v. deVincentis, 708 F.2d 1290, 1293 (7th Cir. 1983), cert. denied, (Footnote continued from preceding page) and none of the cases cited by Suburban O’Hare are on point. For example. in Motorola, Inc. v. Computer Displays Inter- national, 739 F.2d 1149 (7th Cir.1984), the Seventh Circuit ruled that it did not possess jurisdiction to review a district court’s finding of civil contempt for violation of a consent decree in the absence of a district court order that included the imposition of an appropriate sanction as well as the finding of contempt. Motorola does not stand for the proposition that a Court of Appeals never has original jurisdiction to enforce a consent decree when the exercise of that jurisdiction is neces- sary to effectuate its exclusive jurisdiction to review a Chapter 20 order. To the contrary, another case cited by Suburban O’Hare, Brennan v. Winters Battery Manufacturing Co., 531 F.2d 317 (6th Cir.), cert. denied, sub. nom., Winters Battery Manufacturing Co. v. Usery, 425 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 reh. denied, 429 U.S. 873, 97 S.Ct. 192, 50 L.Ed.2d 155 (1976), suggests that a Court of Appeals does indeed possess original jurisdiction to enforce consent decrees: “Enforcement by judicial decree provides a basis for contempt proceedings in this court in event of noncompliance.” Jd. at 321 (citation omitted). Similariy, the case of District of Columbia v. Train, 533 F.2d 1250 (D.C.Cir.1976), also cited by Subur- ban O’Hare, does not support its argument that Courts of Appeal may never hear cases involving consent decrees. To the contrary, the court’s opinion suggests that the Court of Appeals could properly decide the consent decree issues if the decree was within the scope of exclusive statutory grant of jurisdiction. Id. at 1254. See also n. 17 and accompanying text, infra. Ber A EE Re Se BETIS Pe Nee ald, Wh WAR rd S 3 3 ' A CO A-59 oe a 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the plaintiff's assertion of a due process constitutional claim, over which a district court unquestionably possesses general federal question jurisdiction, had no affect on the Seventh Circuit’s holding that jurisdiction vests exclusively in the Court of Appeals to review a Chapter 20 order. '® Similarly, Suburban O’Hare’s assertion of the defendants’ Consent Decree violations cannot deprive the Court of Appeals of its exclusive jurisdiction conferred by statute to review the FAA decision at issue in this case in the first instance. The Court of Appeals may exercise jurisdiction over the enforce- ment of the Consent Decree as well as its exclusive jurisdiction under Section 1486 because it may exercise jurisdiction over any proceedings which are incidental or ancillary to an original action where original jurisdiction over the action lies in the Court of Appeals.'7 Because the Court of Appeals is capable of deciding all of the issues raised by Suburban O’Hare in conducting its Chapter 20 review, the Con-[{1028]sent Decree cannot affect subject matter jurisdiction over this case. [8, 9] Second, parties cannot by their agreement alone confer subject matter jurisdiction over a case which would not otherwise exist. Green v. Department of Commerce, 618 F.2d 836, 839 (D.C.Cir.1980); Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980). Thus, even though parties may, by entering into a consent decree, waive certain rights to which they otherwise 16 See also the district court’s decision in City of West Chicago, Illinois v. United States Nuclear Regulatory Comm’n., 542 F.Supp. 13, 15 (N.D.IIl. 1982), affd, 701 F.2d 632 (7th Cir.1983), quoted at n. I1, supra. 17 As the Seventh Circuit stated in Natural Gas Pipeline Co. v. Federal Power Comm’n., 128 F.2d 481, 484 (7th Cir. 1942), “the court may by its own orders protect the rights of the parties in any manner in which any trial court of equity or general jurisdiction might do so in an injunction suit.” A-60 might be entitled,1® they may not waive the right to exclusive review of a Chapter 20 order under Section 1486 in the Court of Appeals by entering into a consent decree and thereby confer such jurisdiction by agreement on the district court. Third, the Consent Decree in the TJilinois v. Butterfield litigation by its terms excludes from its scope a review of the actual FAA decision reached in approving or disapproving the Master Plan. The operative paragraph of the Decree, states: “The FAA has not made any determinations with respect to [the Master Plan approval] and this Decree does not bind the FAA with regard to any determinations it may make respecting these matters.” (Consent Decree, J 1g at p. 4.) In one sense, this language adds nothing because it merely states the obvious: the FAA was not bound by the Consent Decree itself to either approve or disapprove the Master Plan proposal after meeting the procedural and substantive requirements of the Decree and the various laws the parties were bound to follow. On the other hand, this language is consistent with the FAA’s argument that it never intended to, and never did, enter into a Consent Decree which would render any decision it made on the Master Plan reviewable in the district court. Finally, at a pretrial conference held in this Court on January 30, 1985, Suburban O’Hare in effect conceded that its claims under the Consent Decree afford Suburban O’Hare substantiaily the same relief as it seeks under its claims brought pursuant to the APA. (Transcript of Proceedings at pp. 71-72.) In fact, Count I of the complaint is grounded both in the APA and in the Consent Decree. If the Consent Decree adds nothing to the complaint, then the exclusive jurisdiction of the Court of 18 For example, in this case, it is not inconceivable, as the City defendants have conceded, that the defendants might have waived their right by entering into the Consent Decree not to be subject to a private right of action for violations of certain substantive laws such as the Clean Air Act. See Transcript of Proceedings of January 30, 1985 before this Court at pp. 55-57. A-61 Appeals to review the November 14, FAA decision under Section 1486 cannot be altered by the Consent Decree. This Court’s holding that the existence of the Consent Decree and Suburban O’Hare’s claims thereunder do not affect the exclusive jurisdiction of the Court of Appeals to review the November 14, 1984 FAA decision does not suggest that the Consent Decree was never enforceable in the district court. Contrary to the defendants’ suggestion, the Consent Decree is not a useless document that provides no substantive rights to Suburban O’Hare. Subject matter jurisdiction to enforce the Decree and to address any claimed violations of the various laws that the defendants bound themselves to follow in the Decree unquestionably existed in the district court before November 14, 1984, the date the FAA rendered its decision. Once that decision issued, however, jurisdiction vested solely in the Court of Appeals to review it pursuant to Section 1486 because it was rendered under both Chapter 20 and Chapter 31 of Title 49. IV. The November 14, 1984 FAA Decision Is An “Order”’. [10] Suburban O’Hare argues that, should this Court decide that the November 14, 1984 decision of the FAA approving the Master Plan and the ALP for Phase II construc- tion at O’Hare falls within the ambit of Section 1486 because it was at least in part made under Chapter 20, then it is not an “order” within the meaning of Chapter 20. Suburban O’Hare’s contention is based on the following reasoning: [1029] 1) The scope of judicial review provided in Section 1486 is that the FAA’s factual findings are subject to review under the “substantial evidence” test. 49 U.S.C. § 1486(e). 2) The “substantial evidence” test necessarily con- templates that an agency adjudicatory hearing ‘“‘on the record” was conducted pursuant to Section 556 and 557 of the APA. Citizens to Preserve Overton Park, inc. v. Volpe, 402 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). A-62 3) In this case, no FAA hearing under Section 556 and 557 of the APA was conducted because the FAA is not statutorily required to conduct such a hearing by Title 49. 4) Where no formal administrative record has been pre- pared, or where there are disputes about the contents of the Overton Park record of the agency whose decision is the result of informal rather than a formal adjudication, the district court must exercise its general federal question jurisdiction to review the decision in the first instance to resoive all disputed issues of fact.19 Moreover, the dis- covery procedures available in the district court are essen- tial to delineate the extent of the administrative record. As the FAA points [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2148%3A2. Public record. Not legal advice.