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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


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 FAA action.

  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 they bring

  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 ...

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