United States District Court, N.D. Illinois, Eastern Division
October 11, 2005.
ST. JOHN'S UNITED CHURCH OF CHRIST, an Illinois not-for-profit corporation; HELEN RUNGE; SHIRLEY STEELE; REST HAVEN CEMETERY ASSOCIATION, an Illinois not-for-profit corporation; ROBERT PLACEK; LEROY H. HEINRICH; VILLAGE OF BENSENVILLE, ILLINOIS, an Illinois municipal corporation; ROXANNE MITCHELL; and the VILLAGE OF ELK GROVE, ILLINOIS, an Illinois municipal corporation, Plaintiffs,
THE CITY OF CHICAGO, an Illinois municipal corporation; RICHARD M. DALEY, Mayor of the City of Chicago; FEDERAL AVIATION ADMINISTRATION; MARION C. BLAKEY, Administrator of the Federal Aviation Administration; the STATE OF ILLINOIS; and ROD R. BLAGOJEVICH, Governor of the State of Illinois. Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
As a result of the fast-moving events related to this case,
this Court ordered a status hearing today to consider the impact
of certain actions taken by the Federal Aviation Administration
(the "FAA") and the response by several of the parties in this
action, especially in the proceedings in the Court of Appeals for
the D.C. Circuit. To facilitate the discussion, this memorandum opinion is issued to set forth this Court's tentative
analysis of how these events affect this case and to invite
responses from the parties. Procedurally, this Court will issue a
rule to show cause why the actions described in this memorandum
(dismissal of certain parties and certain counts) should not be
taken. All parties shall have until October 26, 2005, to respond
in writing to the issues raised herein.
As background, it is important to bear in mind the structure of
the twenty-one count amended complaint filed in this Court on
June 19, 2003. The complaint was filed by two sets of plaintiffs.
The first set consists of St. John's United Church of Christ and
two St. John's parishioners named Helen Runge and Shirley Steele
(collectively referred to as the "St. John's Plaintiffs"), as
well as Rest Haven Cemetery Association and two Rest Haven
Association Directors named Robert Placek and Leroy Heinrich
(collectively referred to as the "Rest Haven Plaintiffs"). The
other set of plaintiffs the "Municipal Plaintiffs" consists
of the Village of Elk Grove, the Village of Bensenville, and
homeowner Roxanne Mitchell. The distinction between the two sets
is important because only the St. John's Plaintiffs appear to
have any live claims before this Court at this time.
Plaintiffs filed suit against three sets of defendants: Mayor
Daley and the City of Chicago, the key drivers of the O'Hare
Modernization Project (the "OMP"); FAA Administrator Marion
Blakey and the FAA; and Governor Blagojevich and the State of
Illinois. All claims against the State Defendants were dismissed
on March 29, 2005, on Eleventh Amendment grounds. Mayor Daley can
be dismissed because instituting suit against both Mayor Daley in
his official capacity and the City of Chicago is redundant. It
appears that the claims against the FAA are moot. The only proper
defendant, then, appears to be the City of Chicago. Because many of the counts in the complaint are parallel counts
for example, Count IV is a Free Exercise claim brought by St.
John's Plaintiffs and Count V is the identical claim brought by
Rest Haven Plaintiffs the complaint can be trimmed down
significantly by dismissing everyone but the St. John's
Plaintiffs and the City of Chicago.
Because many of the counts in the complaint were drafted with
the goal of keeping the City and Daley from acquiring any land in
Elk Grove and Bensenville before the FAA issued its Final
Environmental Impact Statement ("EIS") and Record of Decision
("ROD") on the OMP, the complaint can also be trimmed down by
removing those counts that are now moot on the basis of recent
According to a filing submitted by certain Plaintiffs' in the
D.C. Circuit, it appears that the FAA issued its final EIS in
July 2005, and issued a ROD approving the Airport Layout Plan
(the "ALP") on September 30, 2005.
That same day, the St. John's Plaintiffs and the Municipal
Plaintiffs filed three motions in the D.C. Circuit: a petition
for review of the FAA decision, an emergency motion for a stay
pending appeal, and a motion for administrative stay pending
resolution of Petitioners' motion for a stay pending appeal. The
City of Chicago filed an unopposed motion to intervene. That day,
in a per curiam decision, the D.C. Circuit granted the motion for
administrative stay in order "to give the court sufficient
opportunity to consider the merits of the emergency motion for
stay pending appeal." That grant was not to be "construed in any
way as a ruling on the merits" of the emergency motion.*fn1 In the petition for review, the St. John's Plaintiffs and the
Municipal Plaintiffs argued that the FAA action violates, inter
alia, the First Amendment, the Fifth Amendment, Article III, the
Religious Freedom Restoration Act ("RFRA"), the National
Environmental Policy Act ("NEPA"), Section 4(f) of the Department
of Transportation Act, Section 6(f) of the Department of the
Interior Land and Water Conservation Fund Act, the National
Historical Preservation Act ("NHPA"), and the Clean Air
Act.*fn2 In their emergency motion for a stay, the
petitioners alleged both irreparable harm and likely success on
the merits. When discussing the possibility of success on the
merits, the petitioners argued that the FAA's action violated
RFRA and that the FAA improperly declined to address funding.
According to the D.C. Circuit's briefing schedule, briefing on
any dispositive motions should be completed by November 14,
2005.*fn3 Before then, however, there are certain actions
that can be taken in this Court to pare the current complaint
down to four counts for relief:
1. Rest Haven Plaintiffs should voluntarily dismiss all counts
Based on statements issued by both the FAA and the City of
Chicago in July 2005, it appears that Rest Haven is no longer
included in the final plans for the OMP. Given that Rest Haven is
no longer affected by the OMP, the Rest Haven Plaintiffs should
be willing to voluntarily dismiss all the counts of the complaint
that they bring. This Court assumes that the Rest Haven Plaintiffs are amenable to that conclusion, as they
have not attempted to participate in the emergency stay
litigation currently taking place in the D.C. Circuit.
If the Rest Haven Plaintiffs do voluntarily dismiss their
claims, it would appear that this Court should dismiss with
prejudice the following counts: V, IX, XIII, XV, and XVII. In
addition, the Rest Haven plaintiffs should no longer be named
plaintiffs with respect to the following counts: I, II, III,
XVIII, XX, and XXI.
2. Mayor Daley should be dismissed
Plaintiffs have sued both the City and Mayor Daley. It is not
clear that Mayor Daley is being sued in his official capacity. A
plaintiff's failure to indicate whether a public official is
being sued in his or her official capacity gives rise to a
presumption that the suit is an official capacity suit, unless
the pleading or proceedings demonstrate that the plaintiff
actually seeks recovery from the official in his or her personal
capacity. See Stockley v. Jones, 823 F.2d 1068 (7th Cir. 1987).
If Plaintiffs were allowed to sue Mayor Daley in his official
capacity, they would essentially be suing the City twice for the
same set of allegations. See Kentucky v. Graham, 473 U.S. 159,
167 n. 14 (1985) (suits against municipal agents in their
official capacities are actually suits against the municipality);
see also Tabor v. City of Chicago, 10 F.Supp.2d 988, 991
(N.D.III.,1998) (courts have routinely dismissed claims against
municipal agents in such cases.). Therefore, Plaintiff's claim
against Mayor Daley should be dismissed with prejudice.
3. Counts intended to halt progress before FAA action should
be voluntarily dismissed:
As noted earlier, much of this complaint was drafted as a
preemptive strike, intended to keep the City from acquiring land
before the FAA completed its analysis and issued a decision In their complaint, Plaintiffs lay out what they view as the
typical FAA approval process for a project like the OMP.
According to Plaintiffs, the FAA is charged with making sure that
any such project complies with a variety of federal statutes,
such as the NHPA and the NEPA. The FAA reviews compliance when it
is evaluating the project. By the time it issues an EIS and a
ROD, the FAA has taken the federal statutes into account.
Much of the complaint focuses on how the acquisitions were set
to happen before the FAA completed its process. By acquiring land
before it received FAA approval, the City was alleged to violated
federal statutes. By failing to take a more active role in
prohibiting the land acquisition, the FAA was alleged to violate
internal FAA regulations and orders. In order to prevent those
alleged violations, the Plaintiffs drafted a complaint that
focused on declaratory and injunctive relief.
Several counts requested relief in the form of declaratory
judgments and injunctions prohibiting action until the FAA issued
its decision. Now that the FAA has done so, these counts appear
to be moot. The counts that appear to be moot are counts I, II,
III, XIV, XV, XVI, XVII, XX, and XXI.
What remains? For the reasons set forth, only four counts, one
set of plaintiffs, and one defendant appear to be viable part of
this case. The remaining four counts are:
Count IV: a § 1983 claim against the City of
Chicago for imposing a substantial burden on the St.
John's Plaintiffs in violation of the Free Exercise
Count VIII: a claim against the City of Chicago,
brought pursuant to both § 1983 and the Religious
Land Use and Institutionalized Persons Act
("RLUIPA"), for violating the St. John's Plaintiffs
rights under RLUIPA.
Count XII: a § 1983 claim against the City of
Chicago for targeting the St.John's Plaintiffs in
violation of the Free Exercise clause.
Count XVIII: a § 1983 claim against the City of
Chicago for discriminating against St. John's
Plaintiffs in violation of the Equal Protection
clause. In the D.C. emergency motion for a stay pending appeal, the
counsel for the named Petitioners notes: "Counsel is aware of one
case involving substantially the same parties and the same or
similar issues pending in the Northern District of Illinois" and
cites to the case before this Court. The only other reference to
this case is footnote three in that same emergency motion
"Petitioners in this case filed an action in 2003 against the
City and FAA in the United States District Court for the Northern
District of Illinois to ensure that the City did not jump the gun
and begin acquiring and destroying properties before FAA
completed the ROD. By consent of the parties, the District Court
issued an agreed order enjoining the City from doing just that
until FAA issued a ROD. See Order (Tab 21). By properly seeking
review of the FAA's decision under 49 U.S.C. § 46110(c) in this
Court, Petitioners do not waive any of the statutory,
constitutional, or jurisdictional claims they have raised or may
raise in the Illinois district court litigation against either
the City or FAA."
Under 49 U.S.C. § 46110, a person disclosing a substantial
interest in an order issued by Administrator of the Federal
Aviation Administration with respect to aviation duties and
powers designated to be carried out by the Administrator may
apply for review of the order by filing a petition for review in
the United States Court of Appeals for the District of Columbia
Circuit or in the court of appeals of the United States for the
circuit in which the person resides or has its principal place of
business. 49 U.S.C. § 46110(a). That court has exclusive
jurisdiction to affirm, amend, modify, or set aside any part of
the order and may order the Administrator to conduct further
proceedings. 49 U.S.C. § 46110(c). After reasonable notice to the
Administrator, the court may grant interim relief by staying the
order or taking other appropriate action when good cause for its action exists. Id. Findings of
fact by the Administrator, if supported by substantial evidence,
are conclusive. Id.
The complaint in this case sought to prohibit certain
defendants from taking action before the FAA issued its decision
and to prevent the FAA from acting in certain ways based upon the
provisions of certain statutes and the constitution. The FAA has
now acted and the parties appear to be raising the same issues as
to the validity of those actions before this court and the D.C.
Circuit. It would appear that the parties are proceeding in the
proper forum (the D.C. Circuit) to contest the actions of the
FAA. Therefore, all issues concerning the FAA should be dismissed
in the proceeding here.
For the foregoing reasons, this Court will issue a rule to show
cause why the actions described in this memorandum should not be
taken. All parties shall have until October 26, 2005 to respond
in writing to the issues raised herein.
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