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CORACE v. BUTTERFIELD

January 13, 1975

RALPH N. CORACE, Plaintiff,
v.
ALEXANDER P. BUTTERFIELD, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 Plaintiff pro se commenced this action under the Noise Control Act of 1972 ("the Act"), P.L. 92-574 § 12, 42 U.S.C. § 4911, seeking in effect mandatory injunctive relief against the defendant Administrator of the Federal Aviation Administration (Administrator). The defendant has moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6), F.R.Civ.P.

 Assuming, as the court must on a motion of this nature, that plaintiff can prove the allegations of his complaint, the following facts are deemed established for purposes of determining the motion.

 A special noise abatement approach, called the Canarsie Visual Approach, was constructed at John F. Kennedy International (JFK) Airport in an effort to avoid subjecting nearby residents to the noise of landing jets. Approximately 70% of the aircraft which are instructed by the airport control tower to employ this particular approach route stray to the north of the designated area and thereby unnecessarily subject the residents below to harmful noises. Meetings were held with subordinates of the Administrator in an attempt to rectify the problem, but have proved fruitless.

 Plaintiff complains in effect that the Administrator has failed or refused to take action as he is empowered to do. He seeks an order from this court directing the Administrator to ensure that pilots do not stray over residential areas for other than safety reasons. Defendant maintains that there is no statutory authorization for such a judicial order.

 Section 4911(a)(2)(B) of the Act provides in pertinent part:

 
"(a) . . . [Any] person . . . may commence a civil action on his own behalf
 
* * *
 
"(2) against
 
* * *
 
"(B) the Administrator of the Federal Aviation Administration where there is alleged a failure of such Administrator to perform any act or duty under section 1431 of Title 49 which is not discretionary with such Administrator."

 Section 1431 of Title 49, the Federal Aviation Act of 1958, as amended in 1972, in turn instructs the Administrator as follows:

 
"(b)(1) In order to afford present and future relief and protection to the public health and welfare from aircraft noise . . . the [Administrator] . . . after consultation with the Secretary of Transportation and with [Environmental Protection Agency] . . . shall prescribe and amend standards for the measurement of aircraft noise . . . and shall prescribe and amend such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise . . . including the application of such standards ...

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