Petition for Writ of Certiorari — City of Chicago v. Bieneman

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

rite

a === ——— : : ll 1989

In The '} JOSEPH F. SPANIOL, JR,

CLERK

Supreme Court of the United,Stafes

October Term, 1988

—— —-— > — eee

THE CITY OF CHICAGO, ET AI

itioners

LAWRENCE C. BIENEMAN

R 1€}

— — —--- >} -_ = =

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

—————— a

*MICHAEL M. Conway

JEREMIAH MARSH

MICHAEL SCHNEIDERMAN

WILLIAM J. MCKENNA. IR.

Davip B. Gorort

Hopkins & SUTTER

Three First National Plaza

Suite 4300

Chicago, lilinois 60602

(312) 558-6600

OF COUNSEI TUDSON H. MINER

MARK JONES Corporation Counsel

MitTcHELL WAR! MATTHEW |]. PIERs,

Josie M. FAcIANES Deputy Corporation Counsel

JONES, WARE & GRENARD RutH M. Moscovitcu

180 North LaSalle Street Chief Assistant Corporation

Suite 800 Counsel, Appeals Division

Chicago, Illinois 60601 City Hall, Room 511

(312) 263-4882 Chicago, Illinois 60602

(312) 744-6900

*Counsel of Record for Petitioner

The City of Chicas

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for

the Seventh Circuit erred in reading this Court’s decision

in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.

624 (1973), as creating a “proprietorship exception”

allowing the imposition of damages under state tort law

against airport proprietors for failure to regulate noise

caused by aircraft flying in conformance with federal law

and procedures.

2. Whether the United States Court of Appeals for

the Seventh Circuit erred in finding, contrary to decisions

of this Court, that state law damage claims directed at

noise caused by aircraft in flight do not impose an intol-

erable burden on interstate commerce.

PARTIES TO THE PROCEEDINGS BELOW

Plaintiff in the District Court and appellant in No. 88-2399 was

Lawrence C. Bieneman, on his own behalf and on behalf of all persons

similarly situated.

Defendants in the District court and appellees in No. 88-2399

were: The City of Chicago; Eugene Sawyer, in his cfficial capacity

as Acting Mayor of the City of Chicago; Howard Stanback, in his

offical capacity as Commissioner of the Department of Aviation of

the City of Chicago; American Airlines, Inc.; Delta Airlines, Inc.;

Northwest Airlines, Inc.; Ozark Airlines, Inc.; Trans Worid

Airlines, Inc.; United Airlines, Inc.; and, USAirlines, Inc.

The City, Mayor Eugene Sawyer and Commissioner Howard Stanback

are Petitioners here. Plaintiff Bieneman and each of Defendant

Airlines Listed above are Respondents.

TABLE OF CONTENTS

Page

SU EPER Oa WOLAIUE ik vain ve se eaee pen eee 1

Pit N I EI in 5s oon ss én 08 GN ARE CARR 2

SEATUTES ENVOLVED ... 2... 2icc. 00sec 2

SIAL EME! OF CASE... «.550500scncap naan 3

REASONS FOR GRANTING THE PETITION....... 6

CREAN oes is 00 50 50092 hae ee eee 17

Appendix A

Bieneman v. City of Chicago, United States Court

of Appeals for the Seventh Circuit opinion... App. 1

Appendix B

Bieneman v. City of Chicago, United States Dis-

trict Court for the Northern District of Illinois

opinion dated June 8, 1987 ................. App. 24

Appendix C

Bieneman v. City of Chicago, United States Dis-

trict Court for the Northern District of Illinois

opinion dated October 23, 1985............. App. 35

lll

TABLE OF AUTHORITIES

Page

Air Transport Association of America v. Crotti, 389 F.

eB a) 10

Ario v. Metropolitan Airport Comm'n, 367 N.W.2d

a te 12

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

SO oe i

Bryski v. City of Chicago, 148 Ill. App. 3d 556, 499

N.E.2d 162 (2d Dist. 1986) leave to appeal denied,

fae seem O/e, OOS N_E.2d 351 (1987).............. 1]

City of Burbank v. Lockheed Air Terminal, Inc., 411

OSS 20.) heels x bs See

Drybread v. City of St. Louis, 634 S.W.2d 519 (Mo.

Sa a ee 12

Greater Westchester Homeowner's Association v. City

of Los Angeles, 26 Cal. 3d 86, 160 Cal. Rptr. 733,

603 P.2d 1329 (1979), cert. denied, 449 U.S. 820

Geb ies 4 os a's Salsas seas. 8

Henthorn v. City of Oklahoma City, 453 P.2d 1013

a ee eeennee 2

Kassel v. Consolidated Freightways Corp., 450 U.S

ak tau cc dibs sss v yee cess | 5

Krueger v. Mitchell, 112 Wis. 2d 88, 332 N.W.2d 733

Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d

ey ay eke dn bee w ncn pensce. 12

Luedtke v. County of Milwaukee, 521 F.2d 387 (7th

cde sdb kei ss cine gscacesesss. 6

Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) . 5, 13

TABLE OF AUTHORITIES-Continued

Page

Northwest Phoenix Homeowner's Association v.

Scottsdale Mun. Airport, 636 P.2d 1269 (App. Ct.

Pe. || err errr ere rere te eee e. 11

O’Carroll v. American Airlines, Inc., 863 F.2d 11 (Sth

Cie SO oo ee ee eT eee 13

Owen v. City of Atlanta, 248 Ga. 299, 282 S.E.2d 906

(1981), cert. denied, 456 U.S. 972 (1982)....-.-...--: 9

Raymond Motor Transportation, Inc. v. Rice, 434 U.S.

ky fk) PRR err Ter eC TET treet el eta 16

San Diego Building Trades Council v. Garmon, 359

he <0). | er ee ere ee bere to 12

Silkwood v. Kerr-McGee, 464 U:S. 238 (1984). 0.60.05: 6

Southern Pacific Co. v. State of Arizona, 325 U.S. 761

by , -) eee On ere Pere tre tr Ce tere 15

Thornburg v. Port of Portland, 376 P.2d 100 (Ore.

lt) ey ee reer rrr rio eer ee 12

Township of Hanover v. Town of Morristown, 135 N.J.

Super. 529, 343 A.2d 792 (App. Ct. i i: | on 11

United States v. City of Blue Ash, Ohio, 487 F. Supp.

135 (S.D. Ohio 1978), aff’d., 621 F.2d 227 (6th

Ci: SOG and wana sc ene eas eres 10

Village of Bensenville v. City of Chicago, 16 Ill. App.

3d 733, 306 N.E.2d 562 (1st Dist. 1973).........--. 11

CONSTITUTION

Article 1, 68, 1.3. .....0c cee seek nsec ce snecesneee ses 3, 15

en es ee. ee er rer rrr rere rere ero 3

—

TABLE OF AUTHORITIES-—Continued

—

In The

Supreme Court of the United States

October Term, 1988

y’

i al

THE CITY OF CHICAGO, ET AL.,

Petitioners,

LAWRENCE, C. BIENEMAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The City of Chicago (the “City”), through its Coun-

sel, petitions for a Writ of Certiorari to review the deci-

sion of the United States Court of Appeals for the

Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 864 F.2d 463 (App. 1).

The District Court’s order dismissing Bieneman’s state

law claims against the City on grounds of federal pre-

emption is reported at 662 F.Supp. 1297 (App. 24). The

prior District Court order dismissing Bieneman’s claims

under 42 U.S.C. § 1983 is unreported (App. 35).

JURISDICTION

The opinion of the United States Court of Appeals for

the Seventh Circuit was rendered on December 13, 1988.

No petition for rehearing was filed. The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

STATUTES INVOLVED

49 U.S.C. §1508(a). The United States of America is

declared to possess and exercise complete and exclusive

national sovereignty in the airspace of the United States,

including the airspace above all inland waters and the

airspace above those portions of the adjacent high seas,

bays and lakes, over which by international law or treaty

or convention the United States exercises national juris-

diction. The aircraft of the armed forces of any foreign

nation shall not be navigated in the United States, includ-

ing the Canal Zone, except in accordance with an authori-

zation granted by the Secretary of State.

49 U.S.C. §1301(29). “Navigable airspace” means air

space above the minimum altitudes of flight prescribed

by regulations issued under this chapter, and shall

include airspace needed to insure safety and take-off and

landing of aircraft.

49 U.S.C. §1305(a) -

Preemption — (1) except as provided in paragraph (2)

of this subsection, no State or political subdivision

thereof and no interstate agency or other political agency

of two or more States shall enact or enforce any law, rule,

regulation, standard or other provision having the force

and effect of law relating to rates, routes, or services of

any air carrier having authority under subchapter IV of

this chapter to provide air transportation.

U.S. Const., Art. VI, cl.2. This Constitution, and the

Laws of the United States shall be made in Pursuance

thereof; and all Treaties made, or which shall be made,

under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

U.S. Const., Art. I, §8, cl.3. The Congress shall have

power ~_

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.

STATEMENT OF CASE

Petitioner, the City, owns, controls, operates and is

proprietor of O’Hare International Airport (“O’Hare”)

situated in Cook and DuPage Counties, Illinois. O’Hare is

one of the busiest airports in the world. Respondent’s

complaint alleged that O’Hare serves over 667,000 flights

per year, with the number of flights projected to rise to

over 1 million by 1995.’

Respondent Lawrence C. Bieneman (“Bieneman”) is a

property owner in suburban Bensenville, DuPage County,

Illinois. He filed an eight-count amended complaint (the

“Complaint”) against the City, its Mayor and Commis-

sioner of Aviation and various airline carriers serving

O’Hare, alleging deprivations of property without due

process, the taking of property under the 5th and 14th

Amendments to the United States Constitution, along

with state tort claims for nuisance, assau!t and battery.

The Complaint sought certification of Bieneman as the

representative of a class of similarly situated persons

under E.R.C.P. 23.

The Complaint made no allegations that O’Hare was

operated in violation of the Federal Aviation Act (the

“Act”), 49 U.S.C. §1301 et seq., or federal regulations.

Rather, Bieneman’s state tort claims were premised on

allegations that:

20. Defendant City of Chicago has caused and con-

tinues to cause numerous jet-powered aircraft to be

operated, piloted and propelled at low altitudes

through the airspace over or adjacent to Plaintiffs’

property and repeatedly at all hours of every day

and night (Counts IV and V).

and that:

21. These operations of airplanes to, from, and

around the airport owned, operated, and controlled

by Defendant City of Chicago, have impacted and

continue to impact Plaintiffs and their property with

1 As the Complaint was dismissed on a motion to dismiss,

Respondent's allegations are taken as true for purposes of this

_petition.

excessive levels of noise and vibration, and inundate

Plaintiffs with toxic air pollution (Counts IV and V).

The Compiaint alleged that these acts had caused Biene-

man both personal and property damage.

The City moved to dismiss Bieneman’s state claims,

inter alia, on grounds of federal preemption, and also

moved to dismiss Bieneman’s other claims. In two sep-

arately issued opinions, the District Court granted Defen-

dants’ motion, dismissing Bieneman’s claims against all

Defendants with prejudice.

The United States Court of Appeals for the Seventh

Circuit affirmed the District Court’s dismissal of Biene-

man’s constitutional claims and affirmed its refusal to

certify a class action. However, the Seventh Circuit

vacated the District Court’s determination that Biene-

man’s state tort claims against the City were preempted

in light of this Court’s decision in City of Burbank v.

Lockheed Air Terminal, 411 U.S. 624 (1973) (“Burbank”). The

Seventh Circuit ruled that the Act does not expressly

preempt state damage remedies. It noted that the Act

included a savings clause, 49 U.S.C. §1506, on which this

Court had relied in permitting state damage remedies for

an airline’s misrepresentation in selling tickets in Nader v.

Allegheny Airlines, Inc., 426 U.S. 290 (1976), and that state

courts freely awarded damages in air crash cases.

Next, the Seventh Circuit found that Burbank left

room for state regulation of airport noise when the state

Or municipality was the proprietor of an airport stating:

Whether Illinois should allow its courts some role in

setting noise levels at O’Hare is the state’s business.

The federal role is limited to defining the power of

ns i

the state as an entity. Given the recognition in Bur-

bank, that the state may govern the operation of

airports it owns, the conclusion in Luedtke [v. County

of Milwaukee, 521 F.2d 387 (7th Cir. 1975)] that every

conceivable role for state courts has been preempted

is untenable.

Finally, the Seventh Circuit ruled, relying on this

Court’s decision in Silkwood v. Kerr-McGee, 464 U.S. 238

(1984), that the mere fact that a pervasive scheme of

federal regulation exists does not, by itself, lead to pre-

emption of state damage remedies. In ruling that state

damage remedies were not preempted, the court over-

ruled its earlier decision in Luedtke v. County of Milwaukee,

521 F.2d 387 (7th Cir. 1975).

As no federal grounds for jurisdiction remained, the

Seventh Circuit ordered the District Court to dismiss

Bieneman’s state claims without prejudice so that they

may be refiled in state court.

REASONS FOR GRANTING THE PETITION

I. The United States Court of Appeals for the Seventh

Circuit has decided an important question of federal

law which has not been, but should be, settled by

this Court.

Air travel is an increasingly dominant and critical

mode of transportation. The number of flights is increas-

ing, as is the need for larger and more efficient airports.

To promote the nation’s economy and the convenience of

its citizens, a highly interrelated national air transporta-

tion system has developed. The nation’s growing depen-

dence on air travel has brought with it heightened

concern for air safety and has made it essential that there

be a uniform and orderly system for regulating aviation.

With jet travel comes noise and with such noise come

attempts by state and local governments and by individ-

uals such as Bieneman to limit noise. To the extent such

state and local measures pertain to noise from planes in

flight, however, they run afoul of the federal regulatory

scheme and of considerations of interstate commerce. As

this Court recognized in Burbank:

“The aircraft and its noise are indivisible. . . .To

exclude the aircraft noise from the Town is to exclude

aircraft.”

Burbank at 628 (quoting American Airlines v. Town of Hemp-

stead, 272 F. Supp. 226, 230 (E.D.N.Y.), aff’d., 398 F.2d 369

(2d Cir.), cert. denied, 393 U.S. 1017 (1968)). Burbank recog-

nized that an “intensive and exclusive” system of federal

control of air transportation had evolved to best preserve

efficient and safe air travel. Id. at 633 (quoting Northwest

Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944) (Jack-

son, J., concurring)).

In Burbank, the regulated airport was not owned by

the municipality. Therefore, the municipality was not act-

ing as a proprietor. Because Burbank addressed a situation

where a municipality was not a proprietor, this Court did

not need to address the limits on state or local govern-

ments’ ability to regulate airport noise when acting as

airport proprietors. Therefore, this Court took pains to

stress in footnote 14 of Burbank:

We do not consider here what limits, if any, apply to

a municipality as a proprietor.

411 US. at 636 n.14.

In recent years, however, several courts, including

the Seventh Circuit below and three state Supreme

Courts, have misread this Court’s express and unequivo-

cal statement that it was not ruling on this issue to instead

have been an affirmative ruling by this Court that the

limits of Burbank do not apply to a state or municipality

acting as an airport proprietor. Thus, the Seventh Circuit

stated:

The Supreme Court distinguished in Burbank

between the state’s role as a regulator and its role as

a proprietor of airports, observing that it was not

questioning the ability of a governmental body to

determine how it would run its own airports. (App.

19)

As a result of this misreading, the Seventh Circuit

assumed that an airport proprietor can influence aircraft

operations and, accordingly, held that state tort claims

based on its failure to do so are not preempted. Thus the

Seventh Circuit stated that even where a complaint

alleges no violation of any federal law or regulation, an

individual can sue under purely state law for noise

caused by aircraft “propelled at low altitudes through the

airspace adjacent to Plaintiffs’ property” or by the

“operation of airplanes to, from, and around the

airport.”

Similarly, the California Supreme Court in 1979 in

Greater Westchester Homeowner's Association v. City of Los

Angeles, 26 Cal. 3d 86, 160 Cal. Rptr. 733, 603 P.2d 1329

2 The allegations of the Complaint do not speak to noise

by planes on the ground at the airport. This is not a case, as the

Seventh Circuit erroneously stated, regarding noise baffles to

absorb ground noise at the perimeter of the airport. (App. 22)

(1979), cert. denied, 449 U.S. 820 (1980), a case regarding

Los Angeles International Airport, the Georgia Supreme

Court in 1982 in Owen v. City of Atlanta, 248 Ga. 299, 282

S.E.2d 906, cert. denied, 456 U.S. 972 (1982), a case regard-

ing Atlanta-Hartsfield Airport, and the Wisconsin

Supreme Court in 1983 in Krueger v. Mitchell, 112 Wis. 2d

88, 332 N.W.2d 733 (1983), all relied on a purported

“proprietorship exception” to Burbank in upholding state

tort damage remedies for airport noise. This supposed

“proprietorship exception” has been used to justify dam-

age claims against several of the nation’s busiest and

most important airports.

By misinterpreting footnote 14, the Seventh Circuit

and other courts which have found a “proprietorship

exception” have jeopardized the safe and efficient system

of air travel envisioned by the Act and by this Court in

Burbank. Thus, while it was unnecessary to address the

scope of proprietors’ rights to regulate noise in 1973 in

Burbank, it is imperative to do so today.

Far from excepting proprietors from constraints on

noise regulation, federal law and decisions of this Court

make clear that noise regulation of aircraft in flight is

equally offensive to the federal regulatory scheme

whether the state or municipality is acting as a regulator

Or a proprietor or both. As this Court explained in

Burbank:

It is the pervasive nature of the scheme of federal

regulation of aircraft noise that Jeads us to conclude

that there is pre-emption. As Mr. Justice Jackson

stated, concurring in Northwest Airlines, Inc. v. Minne-

sota, 322 U.S. 292, 303:

“Federal control is intensive and exclusive.

Planes do not wander about in the sky like

vagrant clouds. They move only by federal per-

mission, subject to federal inspection, in the

hands of federally certified personnel and under

an intricate system of federal commands. The

moment a ship taxis onto a runway it is caught

up in an elaborate and detailed system of

control.”

Burbank at 633-34.

To allow state regulation of aircraft schedules to com-

bat noise, Burbank understood, would make it impossible

for the FAA to manage a coordinated system of air traffic

flow:

If we were to uphold the Burbank ordinance, and a

significant number of municipalities followed suit, it

is obvious that fractionalized control of the timing of

takeoffs and landings would severely limit the flex-

ibility of FAA in controlling air traffic flow. The

difficulties of scheduling flights to avoid congestion

and the concomitant decrease in safety would be

compounded.

Id. at 639. See also 49 U.S.C. §1508(a) (deciaring that

navigable airspace belongs to the United States).

Other federal courts construing Burbank have made

clear that once a plane is in flight, its noise is beyond

state regulatory control. See United States v. City of Blue

Ash, Ohio, 487 F. Supp. 135 (S.D. Ohio 1978), aff’d., 621

F.2d 227 (6th Cir. 1980) (noise abatement procedure

designed to reduce noise by mandating specific turns by

departing aircraft held preempted); Air Transport Associa-

tion of America v. Crotti, 389 F. Supp. 58, 65 (N.D. Cal.

1975) (three-judge court) (“Regulations of noise levels

which occur when an aircraft is in direct flight . .. are a

per se unlawful exercise of police power into the exclu-

sive federal domain of control over aircraft flights and

operation, and air space management and utilization in

interstate and foreign commerce”).

In addition, several state courts have recognized that

Burbank limits more than merely a state’s police power.

One court has taken a position directly contrary to Biene-

man, holding that damages claims based upon noise from

planes in-flight are preempted. Bryski v. City of Chicago,

148 Ill. App. 3d 556, 499 N.E.2d 162 (2d Dist. 1986) leave to

appeal denied, 113 IIl.2d 572, 505 N.E.2d 351 (1987). Other

courts, while not specifically addressing damage claims,

have found that state injunctive remedies are preempted

in light of Burbank. Village of Bensenville v. City of Chicago,

16 Ill. App. 3d 733, 306 N.E. 2d 562 (1st Dist. 1973);3

Northwest Phoenix Homeowner's Association v. Scottsdale

Mun. Airport, 636 P.2d 1269 (App. Ct. Ariz. 1981); Town-

ship of Hanover v. Town of Morristown, 135 N.J.Super. 529,

343 A.2d 792 (App.Ct. 1975).

Moreover, courts of last resort in other states have

avoided the issue of constitutional preemption by ruling

under state law that actions for inverse condemnation are

3 Ironically, while the Seventh Circuit finds that state dam-

age remedies are not preempted and has allowed Bieneman to

pursue his remedies in state court, the two Illinois State Appel-

late Courts with jurisdiction over O’Hare have held that state

remedies are preempted in light of Burbank. Bryski v. City of

Chicago, 148 Ill. App. 3d 556, 499 N.E. 2d 162 (2d Dist. 1986),

leave to appeal denied, 113 Ill. 2d 572, 505 N.E.2d 351 (1987)

(state damage remedies preempted); Village of Bensenville v.

City of Chicago, 16 Ill. App. 3d 733, 306 N.E.2d 562 (1st Dist.

1973) (state injunction remedies preempted). Litigants who

walk into Illinois State Court in light of the Seventh Circuit’s

decision in Bieneman will be dismissed on grounds of

preemption.

the exclusive state remedy for parties aggrieved by air-

port noise. See, e.g., Ario v. Metropolitan Airport Comm'n,

367 N.W.2d 509 (Minn. 1985); Long v. City of Charlotte, 306

N.C. 187, 293 S.E.2d 101, 108 (1982); Henthorn v. City of

Oklahoma City, 453 P.2d 1013 (Okl. 1969); Thornburg v. Port

of Portland, 376 P.2d 100 (Ore. 1962). See also Drybread v.

City of St. Louis, 634 S.W.2d 519 (Mo.App. 1982).4

The growing recognition of the need to curtail state

inhibitions on air travel is also reflected in changes in

federal aviation law in the 16 years since Burbank. In the

1982 Airport and Airways Improvement Act, 49 U.S.

§2201 et seq., in providing for metropolitan airport hubs,

of which O’Hare Airport is one, Congress declared as its

policy that:

It is in the national interest to develop in metro-

politan areas an integrated system of airports

designed to provide expeditious access and maxi-

mum safety. /d. at 2201(10).

and that:

Artificial restrictions on airport capacity are not in

the public interest. Id. at § 2201(13).

Moreover, in 1978, Congress expressly preempted

state regulation aimed at rates, routes or services:

4 Although Burbank addressed regulation and not damage

claims of the kind at issue here, Burbank’s limits on state

authority apply equally to indirect state regulation of noise by

way of injunction or damage remedies. As the Seventh Circuit

acknowledged (App. 20) and this Court recognized in San

Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), a

state may not do through judicially-created damage remedies

what it could not do through direct regulation.

(1) except as provided in (2) of this subsection, no

State or political subdivision thereof and no inter-

state agency or political agency of two or more States

shall enact or enforce any law, rule, regulation, stan-

dard or other provision having the force and effect of

law relating to rates, routes, or services of any air

carrier having authority under subchapter IV of this

chapter to provide air transportation. 49 U.S.C.

§1305(a)(1).

These provisions make certain that federal law leaves no

room for state law which forces an airport, out of fear of

liability, to reduce the number, type, or timing of aircraft

it services.5 See O’Carroll v. American Airlines, Inc., 863

F.2d 11 (Sth Cir. 1989) (finding state tort remedies pre-

empted based upon express preemption provision).

To read Burbank as the Seventh Circuit does not only

imperils the FAA’s regulatory scheme, but also imposes

an unfair burden on airport proprietors. As noise from

planes in flight is something the proprietor cannot con-

trol, it is especially draconian to expose the proprietor to

the risk of liability resulting from the noise of aircraft

° The broad reach of federal preemption of in-flight noise

is not disturbed, as the Seventh Circuit contended, by the

Savings clause of the FAA Act, 49 U.S.C. § 1506. That the

savings clause has no relevance to the FAA‘s authority to

regulate in-flight aircraft is best evidenced by the fact that

Burbank struck down state regulation despite the clear pres-

ence of § 1506 in the Act. Cases allowing suit for misrepresen-

tation by airlines, Nader v. Allegheny Airlines, 426 U.S. 290

(1976), or for bodily injuries from air crashes do not speak to

the operation of aircraft complying with federal law and are

therefore not preempted. They do not justify state regulation of

the noise that goes part and parcel with aircraft flight.

flying to, from or around an airport.® To say that Burbank

imposes such a dilemma on airport proprietors misreads

Burbank and risks the very fractionalized control of air

traffic flow and the weakening of FAA authority that

Burbank found offensive. That this Court has not, but

should, settle an important question of federal law consti-

tutes a strong reason for granting review of certiorari.

U.S. Sup. Ct. Rule 17.1(c).

Il. The United States Court of Appeals for the Seventh

Circuit has decided an important question of fed-

eral law in a way in direct conflict with applicable

decisions of this Court.

The United States Court of Appeals for the Seventh

Circuit’s decision is in direct conflict with applicable

decisions of this Court establishing limits on states’ abil-

ity to regulate interstate commerce, including air travel.

The conflict between the Seventh Circuit and decisions of

this Court is an important question governing review on

certiorari. U.S. Sup. Ct. R. 17.1(c).

Burbank recognized that, in addition to disrupting the

FAA’s regulatory scheme, state regulation of in-flight

noise imposed an intolerable burden on interstate com-

merce. The Court cited with approval an FAA statement

detailing the risks posed by state noise regulations to

interstate commerce:

The continuing growth of public acceptance of avia-

tion as a major force in passenger transportation and

6 Notwithstanding the Seventh Circuit’s loose use of lan-

guage, see App. 19-20, the City, not the State, is the proprietor

of O'Hare.

the increasingly significant role of commercial avia-

tion in the nation’s economy are acomplishments

which cannot be inhibited if the best interest of the

public is to be served. It was concluded therefore that

the extent of relief from the noise problem which this

[curfew] might have achieved would not have com-

pensated the degree of restriction it would have

imposed on domestic and foreign air commerce.

411 U.S. at 640 (quoting 25 Fed. Reg. 1764-1765).

The awareness in Burbank that state noise law could

severely constrain the free flow of interstate air transpor-

tation intended by Congress reaffirms what this Court

has noted in striking down state restraints directed at

other modes of interstate transportation as violative of

the Commerce Clause. U.S. Const., Art. I, § 8, cl.3. Thus,

in Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959),

this Court struck down an Illinois safety regulation pre-

scribing a specific form of protective mud-flap for trucks

traveling through the state. This Court noted that Illinois’

law conflicted with mud-flap regulations passed by other

states and concluded that allowing such a patchwork of

incompatible laws would impose an untenable burden on

interstate commerce. The Court held:

Like any local law that conflicts with federal regula-

tory measures, state regulations that run afoul of the

policy of free trade reflected in the Commerce Clause

must also bow.

Id. at 529 (citations omitted). See also Southern Pacific Co. v.

State of Arizona, 325 U.S. 761, 773 (1945) (invalid statute

“interposes a substantial obstruction to the national pol-

icy proclaimed by Congress, to promote adequate, eco-

nomical and efficient railway transportation service”);

Kassel v. Consolidated Freightways Corp., 450 U.S. 662

(1981); Raymond Motor Transportation, Inc. v. Rice, 434 U.S.

429 (1978). Here a web of incompatible state noise restric-

tions established by jury verdict and enforced by damage

awards would unduly burden aviation travel. For

instance, jets leaving New York’s Kennedy Airport might

not be able to fly to Dallas-Fort Worth Airport if they

would lead to a greater cumulative noise level than Texas

law tolerated. Moreover, the restraints imposed by fear of

damage liability may well be more sweeping than those

created by the police power ordinance struck down as

unconstitutional in Burbank.

—— —___—_—_—_—_@— ——————————————

CONCLUSION

The petition for a Writ of Certiorari should be

granted and set down for briefing and argument on the

merits. Alternatively, the petition should be granted sum-

marily ‘nd the decision of the United States Court of

Appeals .or the Seventh Circuit denying preemption

should be vacated and the case remanded for further

consideration in light of City of Burbank v. Lockheed Air

Terminal, 411 U.S. 624 (1973) and other decisions of this

Court.

Respectfully submitted,

*MICHAEL M. Conway

JEREMIAH MarsH

MICHAEL SCHNEIDERMAN

WILLIAM J. McKENNA, Jr.

Davip B. Gororr

Hopkins & SuTTER

Three First National Plaza

Suite 4300

Chicago, Illinois 60602

(312) 558-6600

OF COUNSEL: JuDson H. MINer,

Mark JONES Corporation Counsel

MITCHELL WARE MAatTTHEew J. Piers,

Josie M. Factanes Deputy Corporation Counsel

Jones, Ware & GreNARD Ruth M. MoscovitcH,

180 North LaSalle Street Chief Assistant Corporation

Suite 800 Counsel, Appeals Division

Chicago, llinois 60601 City Hall, Room 511

(312) 263-4882 Chicago, Illinois 60602

(312) 744-6900

“Counsel of Record for Petitioner

The City of Chicago

App. 1

APPENDIX A

Lawrence C. BIENEMAN,

Plaintiff-Appellant,

CITY OF CHICAGO, et al.,

Defendant-Appellees.

No. 88-2399.

United States Court of Appeals,

Seventh Circuit.

Submitted Nov. 1, 1988.

Decided Dec. 13, 1988.*

Before POSNER, COFFEY and EASTERBROOK, Cir-

cuit Judges.

EASTERBROOK, Circuit Judge.

Noise from O’Hare Airport is the subject of this case.

Lawrence C. Bieneman, who bought a parcel of land near

O’Hare in 1967 and has become a frequent filer, com-

menced this suit as a class action on behalf of all other

residents of northern Illinois adversely affected by noise.!

“The case was orally argued on January 6, 1988, but we dis-

missed the appeal for want of jurisdiction because the judg-

ment was not final. This new appeal, taken from a final

judgment, has been submitted to the original panel for deci-

sion without a second oral argument.

|. Bieneman became Mayor of Bensenville, Illinois, and that

village, joined by three others, filed suit in state court seek-

Ing an injunction against the expansion of O'Hare. The

villages lost. Village of Bensenville v. City of Chicago, 16

Il.App.3d 733, 306 N.E.2d 562 (1st Dist.1973). Bieneman, as

Mavor of Bensenville, was among the signatories to a con-

sent decree affecting planning for growth at O'Hare. Illinois

(Continued on following page)

App. 2 =

Bieneman contended that the City of Chicago (which

operates O’Hare) and the airlines using O’Hare inten-

tionally reduced the value of his land by propagating

noise and the chemicals in aircraft exhaust. Two counts of

the complaint alleged a deprivation of property without

due process, a third alleged a taking, and other counts

made claims under state tort law.

Decisions by three district judges have left Beineman

empty-handed. Judge Decker dismissed the claims alleg-

ing deprivations of property without due process on the

ground that entitlements to be free from nuisances and

related torts are not “property” within the meaning of the

Due Process Clause. Judge Duff, to whom the case was

transferred, dismissed the remaining claims. 662 F.Supp.

1297 (N.D.111.1987). Any taking occurred no later than

1976, Judge Duff concluded, so that this suit, filed in

1984, is untimely. The state claims presented under the

court’s pendent jurisdiction all had been preempted by

federal statutes and regulations, Judge Duff concluded in

reliance on Luedtke v. County of Milwaukee, 521 F.2d 387,

391 (7th Cir.1975). Although Judge Duff reserved decision

on the complaint’s demand to proceed as a class action,

662 FSupp. at 1298 n. 1, Bieneman filed a notice of

appeal. After we dismissed this as premature, 838 F.2d

(Continued from previous page)

ex rel. Scott v. Butterfield, No. 74 C 2440 (N.D.II1.1974). Biene-

man personally was among the plaintiffs in a case challenging

the Federal Aviation Administrations’s plan of redevelopment

at O’Hare - another defeat. Suburban O'Hare Commission v.

Dole, 787 F.2d 186 (7th Cir.1986). So this case is at least the

fourth for Bieneman on the topic.

App. 3

962 (7th Cir.1988). Bieneman asked the district court to

certify a class limited to some of the legal issues in the

case. By then the case had been transferred to Judge

Leinenweber, who denied the motion. Judge Leinenweber

doubted whether Bieneman, who had lost the case on the

merits, was an adequate representative of the class; at all

events, the judge thought that the prospect of inconsi-

stent decisions on legal questions was insufficient to call

for certification of a class, given the disparate interests of

the many thousands of persons affected by operations at

O’Hare Airport. Bieneman again appeals, this time from a

final judgment.

Bieneman contests the district court’s refusal to cer-

tify the case as a class action. Unless the district court

abused its discretion, we must respect its decision. Patter-

son v. General Motors Corp., 631 F.2d 476, 480 (7th

Cir.1980); Adashunas v. Negley, 626 F.2d 600, 605 (7th

Cir.1980); Susman v. Lincoln American Corp., 561 F.2d 86,

90 (7th Cir.1977). There was no abuse. Bieneman’s pro-

posed class contained at least 300,000 persons. Some of

these undoubtedly derive great benefit from increased

operations at O’Hare, which make the area attractive for

business and may increase the value of land, even as they

make land less attractive for residential purposes. The

magnitude of any effect on residential owners depends

on topography, flight patterns, and many other variables;

homeowners who want to sell to businesses (or are in

areas zoned for business) may benefit from extra flights

and so oppose homeowners differently situated. No

App. 4

wonder courts routinely decline to certify classes in air-

port-noise cases. E.g., Virginians for Dulles v. Volpe, 344

F.Supp. 573, 575 (E.D.Va.1972), affirmed in relevant part,

541 F.2d 442 (4th Cir.1976); Town of East Haven v. Eastern

Airlines, Inc., 331 F.Supp. 16, 18 (D.Conn.1971), affirmed,

470 F.2d 148 (2d Cir.1972); Ario v. Metropolitan Airports

Comm'n, 367 N.W.2d 509 (Minn.1985); City of San Jose v.

Superior Court of Santa Clara County, 12 Cal.3d 447, 115

Cal.Rptr. 797, 525 P.2d 701 (1974).

Conceding this, Bieneman insists that the district

court should have certified a class for purposes of legal

questions only, such as preemption and the length of the

statute of limitations. Such a class could prevent inconsi-

stent outcomes in multifarious cases, achieving the objec-

tive of Fed.R.Civ.P. 23(b)(1). Maybe so; some courts have

given class treatment to questions of law while reserving

issues of fact for individual resolution. Sterling v. Velsicol

Chemical Corp., 855 F.2d 1188, 1196-97 (6th Cir.1988); In re

Agent Orange Product Liability Litigation, 818 F.2d 145,

166-67 (2d Cir.1987); In re School Asbestos Litigation, 789

F.2d 996, 1008-10 (3d Cir.1986). That this may be done

does not mean that it must be. A court does not abuse its

discretion in failing to employ novel procedural devices,

especially when there are serious doubts about the ade-

quacy of the plaintiff’s representation of the class, even

about the existence of a case or controversy with regard

to a certification of the sort Bieneman proposes. A class

limited to legal claims (such as identifying the period of

limitations), leaving the class members to file separate

suits if they want to take advantage of the ruling, does

not resolve any concrete case, and it looks suspiciously

like a request for an advisory opinion. (Sterling, Agent!

App. 5

Orange, and similar opinions contemplated that questions

not covered by the class certification would be resolved

by further proceedings in the same case, avoiding this

problem.)

Bieneman filed this case as a class action yet pursued

it for more than three years without asking the district

court to certify a class; he appealed, leaving the class

behind, and recovered his zeal to serve as representative

only on learning that disposition of the class claim was

essential to his own claim. We suggested on the first

appeal that “a class representative who has lost on the

merits may have a duty to the class to oppose certifica-

tion, to avoid the preclusive effect of the judgment.” 838

F.2d at 964. Bieneman nonetheless pressed_on. What he

pressed, however, was a motion for partial certification,

abaondoning members of the class pleaded in the com-

plaint and many of the issues originally identified for

class treatment, in the teeth of our observation that a

representative may not unilaterally abandon the class,

838 F.2d at 963. The district court was entitled to doubt

that Bieneman is a fit representative of other land

owners. See East Texas Motor Freight System, Inc. v.

Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52

L.Ed.2d 453 (1977). This is quite enough to support Judge

Leinenweber’s decision, and we resolve no other ques-

tions concerning class certification.

Bieneman alleges that noise and noxious gasses ema-

nating from O’Hare Airport deprive him of property

without due process of law, and so allow a remedy under

App. 6

42 U.S.C. § 1983. The contention is fundamentally that

O’Hare is a nuisance, traditionally a subject of state law.

Judge Decker believed that maintaining a nuisance does

not deprive anyone of “liberty or property” within the

meaning of the Due Process Clause. The desire to pros-

ecute a nuisance suit is not based on either liberty or

property, the judge held in reliance on Brown v. Brienen,

722 F.2d 360 (7th Cir.1983), and Jackson v. City of Joliet, 715

F.2d 1200 (7th Cir.1983). As we see things, however, the

right question is not whether there is or may be property

in a chose in action — to which the answer, if pertinent, is

“yes”. See Logan v. Zimmerman Brush Co., 455 U.S. 422,

428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982). Sending

waves of noise across a stranger’s land can “take” his

property, see United States v. Causby, 328 U.S. 256, 66 S.Ct.

1062, 96 L.Ed. 1206 (1946), and therefore must be able to

“deprive” him of “liberty or property” too. The property

interest is in the land, not in the right to litigate. That the

state’s conduct concerning the land is tortious does not

eliminate a liberty or property element that otherwise

exists. Brown, Jackson, and similar cases do not depend on

a belief that obnoxious conduct by the state cannot

deprive a person of liberty or property. They hold, rather,

that the Constitution does not require the state to use

civil or criminal process to protect its residents from

private aggression or ameliorate the vicissitudes of life.

See generally Archie v. City of Racine, 847 F.2d 1211 (7th

Cir.1988) (en banc).

The state is the aggressor in our case, however. The

complaint alleges that state actors manage O’Hare

Ariport so as to inflict injury on private persons. This

App. 7

formally states a constitutional claim. The immediate hur-

dle for Bieneman, however, is the principle that negligent

conduct does not violate the Due Process Clause. Daniels

v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662

(1986), and we added in Archie that grossly negligent

conduct should be treated just like negligence. 847 F.2d at

1218-20. To get anywhere, Bieneman must show that the

City of Chicago intentionally or recklessly inflicted injury

wothout due process of law. This is so whether he con-

tends that the violation is procedural of substantive.”

No one supposes that the City of Chicago set out to

aggrevate Mr. Bieneman by jacking up the levels of noise

at O’Hare Airport. He is not a member of some prostrate

group; owners of land near O’Hare are among the

wealthiest and most influential people in Illinois; noise

injures without regard to race, religion, and political

beliefs. To show “intent” (or at least recklessness), Biene-

man maintains that Chicago knows the effect of noise and

exhaust gasses, yet does nothing to aid their victims. Put

in this way, however, the argument is no different from

the one in Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).

Statutes reserving public jobs for veterans assist a group

almost all members of which are male. Women seeking

the jobs contended that the state must have “intended” to

do them injury, because everyone intends the natural and

probable consequences of his acts - and the

2. Whether there is such an animal as “substantive due pro-

cess” when the state affects property that it could choose to

take outright is a subject we need not pursue. See Coniston

Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988).

App. 8

consequences of the preference law were apparent. The

Supreme Court took a different view of intent in constitu-

tional law, however, distinguishing knowledge from

intent, byproduct from objective. A state may know what

its laws do, yet may not “intend” all of the consequences.

Some of them may be unwelcome fallout from activities

undertaken for another reason. The essential question, as

the Court saw things, was whether the state acted “at

least in part ‘because of,’ not merely ‘in spite of,’ [the]

adverse effects upon an identifiable group.” 442 U.S. at

279, 99 S.C. at £296.

Chicago intends to operate O’Hare Ariport, knowing

that noise and pollution occur. But it does not operate

O’Hare because this is the best way to create noise and

fumes. These are unwelcome byproducts. A good way to

put the intent question is: “If the consequence at issue

were smaller, or its effect were reversed, would the actor

find the activity less attractive?” If planes made less

noise, would Chicago curtail the size and hours of opera-

tion of O’Hare? To put the question this way is to show

that Bieneman cannot establish intent.

Recklessness is a proxy for intent, and Bieneman

fares no better with the claim that Chicago gratuitously

subjects him to noise and pollution. He might say that a

government acts recklessly toward something if the gov-

ernment accords it no weight - in prison cases, for exam-

ple, we say the guards act recklessly if they accord the

interests of prisoners no weight and so disdain cries of

distress. One might ask from this perspective whether the

City would operate O’Hare differently if it owned all of

the surrounding land. Cf. William F. Baxter & Lillian R.

Altree, Legal Aspects of Airport Noise, 15 J.L. & Econ. 1

App. 9

(1972). If Chicago would behave no differently, then it

must be holding property owners’ interests as dear as its

own, the pole away from recklessness. Bieneman’s com-

plaint does not allege that the City allows O’Hare to be

noisier or dirtier than it would if the government owned

the surrounding land, and at oral argument Bieneman’s

counsel denied that it does. This aspect of the case there-

fore stands or falls on the proposition to know of an

adverse consequence, and to do nothing to palliate

things, is to “intend” that consequence. Under Feeney, the

contention fails.

Ill

Protests about “deprivations” without due process

sound tinny when the state is free to take what it wants —

with or without process — so long as it is prepared to pay.

A state may take property outright or may condemn an

easement for noise, and sometimes under the Constitu-

tion it must do so, see Causby, although airport noise

rarely requires compensation, Griggs v. Allegheny County,

369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). See also

Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226,

233-41, 17 S.Ct. 581, 583-86, 41 L.Ed. 979 (1897) (applying

the Takings Clause of the fifth amendment to the states

through the fourteenth). The right step logically is an

inverse condemnation action. Bieneman contends that the

noise at O’Hare took his land - or at least an easement -

no later than 1976, when, Bieneman believes, the din

became unbearable. Since this suit was filed eight years

later, the defendants insist that it is untimely.

App. 10

A suit under 42 U.S.C. § 1983 must be filed within the

time allowed by state law for personal injury actions.

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d

254 (1985). See also Goodman v. Lukens Steel Co., 482 U.S.

656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (same for

§ 1981). In Illinois that period is two years, although we

held in Anton v. Lehpamer, 787 F.2d 1141 (7th Cir.1986),

that in light of cases before Garcia that might have engen-

dered reliance on a longer period, the plaintiff would be

allowed two years from the decision in Garcia or five

years from the time the claim accrued, whichever is

shorter. Bieneman contends that Chicago took his prop-

erty in 1976, so under Anton he had until 1981 to file a

§ 1983 action. Bieneman attempts to avoid that outcome

by insisting that the takings claim rests on the Constitu-

tion rather than § 1983. The district court disagreed,

holding that constitutional inverse condemnation suits

against state actors depend on § 1983. 662 F.Supp. at

1299-1300. We know from First English Evangelical!

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107

S.Ct. 2378, 2386 n. 9, 96 L.Ed.2d 250 (1987), that takings

suits may be filed directly under the Constitution. It

follows, Bieneman contends that we should use as the

limitations period the most analogous period drawn from

state law — which, he submits, is the 20-year time allowed

to bring adverse possession actions, a period applied to

inverse condemnation suits against governmental units.

"E.g., Rosenthal v. City of Crystal Lake, 171 Ill.App.3d 428,

121 Ill.Dec. 869, 525 N.E.2d 1176 (2d Dist.1988); DiSanto v.

City of Warrenville, 59 Ill.App.3d 931, 17 Ill.Dec. 289, 376

N.E.2d 288 (2d Dist.1978).

App. 11

The line of argument works only if three things hold:

first, that state rather than federal law supplies the period

of limitations for a claim arising directly under the Con-

stitution; second, that the period for adverse possession

is the most analogous period of state law; third, that the

existence of a claim directly under the Constitution can-

cels the holding of Garcia that the period of limitations

applicable to personal injuries governs all constitutional

torts, even though state law might use different periods

for different wrongs. Each is questionable. Agency Holding

Corp. v. Malley-Duff & Associates, Inc., _ U.S. __, 107

S.Ct. 2759, 97 L.Ed.2d 121 (1987), which applied a four-

year period from anti-trust law to suits under a different

federal statute that did not contain its own period of

limitations, shows that the custom of recurring to state

law for periods of limitations is not the same as a rule

requiring their absorption. See also DelCostello v. Teams-

ters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)

(applying the six-month period from the National Labor

Relations Act to “hybrid” contract-duty of fair represen-

tation cases); In Data Access Systems Securities Litigation,

843 F.2d 1537 (3d Cir.1988) (en banc) (applying the three-

year period contained in federal securities laws to

implied federal rights of action); Smith v. City of Chicago,

769 F.2d 408 (7th’ Cir.1985) (applying a six-month period

derived from federal employment laws to actions enforc-

ing rights under a federal consent decree). An appropri-

ate benchmark for this purpose might be the six years

provided by 28 U.S.C. § 2401(a) for suits against the

United States, a period that is employed to mark the

outer limits for purposes of inverse condemnation actions

under the Tucker Act, 28 U.S.C. § 1491(a)(1). United States

App. 12

v. 422,978 Square Feet of Land, 445 F.2d 1180, 1187-89 (9th

Cir.1971); Stubbs v. United States, 620 F.2d 775, 784 (10th

Cir.1980); cf. Kabua v. United States, 546 F.2d 381, 383

(Ct.C1.1976). If this six-year period were applied, Biene-

man still would be out of court. And Chicago contests

the submission that if state law supplies a period of

limitations, the 20-year adverse possession rule is the

most closely analogous. We shall go no further along

either path, however, for the third condition cannot be

satisfied.

Garcia and Goodman, which established the periods of

limitations applicable under § 1983 and § 1981, resolved

two questions: where to get the period of limitations, and

which period to use. The answer to the first of these

questions, based on 42 U.S.C. § 1988, was “state law”.

Section 1988 does not apply to a case in which the Consti-

tution rather than a civil rights statute supplies the rem-

edy, although the Rules of Decision Act, 28 U.S.C. § 1652,

might have the same effect for other federal litigation.

The second question has two parts: (a) shall there be a

single period of limitations for all §§ 1981 and 1983 cases,

or should different periods be used for different patterns

(some analogized to contracts, some to intentional torts,

3. The i2-year period in the Quiet Title Act, 28 U.S.C.

§ 2409a(f), might be an alternative benchmark, but this

statute applies only when the government claims an interest

in land. See United States v. Mottaz, 476 U.S. 834, 106 S.Ct.

2224, 90 L.Ed.2d 841 (1986); Block v. North Dakota, 461 U.S.

273, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). The point of

Bieneman’s suit is that the government disclaims an interest

in his land but ought to be forced to pay for it anyway, the

classic inverse condemnation action.

App. 13

some to negligent torts, some left to the catch-all stat-

ute)?, and (b) if one period is to be used, which? Garcia

and Goodman concluded that only one period should be

borrowed from state law, the one generally applicable to

personal injuries.4

These decisions — whether to have a single period,

and which period to use - do not depend on § 1988.

Nothing in the text or history of that ststute speaks to the

questions. The Court had to devise its own rule, and it

made a practical choice for compelling reasons:

The experience of the courts that have predicated

their choice of the correct statute of limitations on an

analysis of the particluar facts of each claim demon-

strates that their approach inevitably breeds uncer-

tainty and time-consuming litigation that is foreign

to the central purposes of § 1983. Almost every

§ 1983 claim can be favorably analogized to more

than one of the ancient commonlaw forms of action,

each of which may be governed by a different statute ’

of limitations. . . . If the choice of the statute of

limitations were to depend upon the particular facts

or the precise legal theory of each claim, counsel

could almost always argue, with considerable force,

that two or more periods of limitations should apply

to each § 1983 claim. . . . The simplicity of the

admonition in § 1988 [to use state law] is consistent

with the assumption that Congress intended the

identification of the appropriate statute of limitations

to be an uncomplicated task for the judges, lawyers,

and litigants, rather than a source of uncertainty, and

4. The Court has heard oral argument in Okure v. Owens, 816

F.2d 45 (2d Cir.1987), cert. granted, U.S. ___, 108 S.Ct.

1218, 99 L.Ed.2d 419 (1988), which presents the question

whether a different rule should apply when the state has a

special period of limitations for intentional torts. This com-

plication need not detain us.

App. 14

unproductive and ever increasing litigation. More-

over, the legislative purpose to create an effective

remedy for the enforcement of federal civil rights is

obstructed by uncertainty in the applicable statute of

limitations, for scarce resources must be dissipated

by useless litigation on collateral matters.

Garcia, 471 U.S. at 272-75, 105 S.Ct. at 1944-47 (footnotes

omitted). See also Agency Holding, 107 S.Ct. at 2763-64.

These considerations apply with equal force to claims

invoking the Constitution directly. Actions under § 1983

and those under the principal fount of direct suits, Bivens

v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999,

29 L.Ed.2d 619 (1971), are identical save for the replace-

ment of a state actor (§ 1983) by a federal actor (Bivens).

No wonder the only two courts of appeals that have

addressed questions concerning limitations under Bivens

have held that the rules used for § 1983 suits will be

applied in full force to Bivens cases. Chin v. Bowen, 833

F.2d 21, 23-24 (2d Cir.1987); McSurely v. Hutchison, 823

F.2d 1002, 1004-05 (6th Cir.1987). When the defendant is a

state actor, § 1983 and direct litigation may be inter-

changeable, the choice between them adventitious. There

is no reason to have a different period of limitations, and

a strong reason not to: any difference would give the

plaintiff an incentive to pick whichever jurisdiction pro-

vided the longer period, recreating the uncertainty that

the Supreme Court sought to eliminate. We conclude,

therefore, that there should be a single period of limita-

tions for all suits in which the Constitution supplies the

remedy.

Harmonizing the “direct” suit with the § 1983 suit

requires us to go the rest of the way with Wilson v. Garcia.

App. 15

The Supreme Court applied the period for personal inju-

ries to all § 1983 cases, recognizing that § 1983 covers

many wrongs that states, for domestic purposes, would

classify under different statutes. To avoid enervating liti-

gation, the period for direct actions must be the same as

the period for § 1983 actions. So pleading this case as a

claim directly under the Takings Clause leaves Bieneman

exactly where pleading it under § 1983 would have left

him: with five years from the wrong, or two years from

Wilson, whichever is less, to file the complaint. Bieneman

missed the time by three years, and the district court

properly granted summary judgment for the defendants.

There remain questions of Illinois law, laid under the

pendent jurisdiction. “[I]f the federal claims are dis-

missed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed

as well.” United Mine Workers v. Gibbs, 383 U.S. 715, 726

86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The district

court did not dismiss them but resolved them on the

merits — adversely to Bieneman. The court did not give a

reason for doing so or recognize that there might be a

problem in disposing of state questions after the basis of

federal jurisdiction evaporated.

The dictum given unqualified in Gibbs has been qual-

ified in practice. See Rosado v. Wyman, 397 U.S. 397,

404-05, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970).

Although this court regularly directs district judges to

remit pendent state claims to state court after wrapping

up the federal issues before trial, e.g., Baltimore Orioles,

App. 16

Inc. v. Major League Baseball Players’ Ass'n, 805 F.2d 663,

682 (7th Cir.1986), we recognize that courts sometimes

ought to dispose of everything at once, that prompt reso-

lution may be dramatically more efficient, justifying the

displacement of state questions to the federal tribunal.

See Zepik v. Tidewater Midwest, Inc., 856 F.2d 936, 945-46

(7th Cir.1988) (collecting cases). The failings in the federal

issues may carry over to the state claims. Mechmet v. Four

Seasons Hotels, Ltd., 825 F.2d 1173, 1178 (7th Cir.1987). Or

there might be a federal defense to the state claims, one

appropriately resolved by a federal court. Graf v. Elgin,

Joliet & Eastern Ry., 790 F.2d 1341, 1345-48 (7th Cir.1986).

Our case is of this kind. The defendants contended, and

the district court held in reliance on Luedtke, that federal

law preempts any claims otherwise available under state

law. 662 F.Supp. at 1300-01. Bieneman recognizes that

Luedtke governs and asks us to overrule it, which a state

court could not do. Gibbs permits a federal court to

proceed in such a case.

Luedtke offered this analysis, which we quote in full:

“Since the federal laws and regulations have preempted

local control of aircraft flights, Burbank [v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547

(1973)], the defendants may not, to the extent they com-

ply with such federal laws and regulations, be charged

with negligence or creating a nuisance. Similarly, § 114.04

of the Wisconsin Statutes cannot be invoked to make

unlawful flights which are in-accordance with federal

laws and regulations. . ~. To the extent that the County

may be violating the federal laws or regulations, the

plaintiffs should . . . exhaust their administrative

remedies.” 521 F.2d at 391. Since Luedtke every court that

App. 17

has examined the question independently has come to the

opposite conclusion. Greater Westchester Homeowners Ass'n

v. City of Los Angeles, 26 Cal.3d 86, 100, 160 Cal.Rptr. 733,

740, 603 P.2d 1329, 1336 (1979), cert. denied, 449 U.S. 820,

101 S.Ct. 77, 66 L.Ed.2d 22 (1980); Owen v. City of Atlanta,

157 Ga.App. 354, 277 S.E.2d 338, affirmed, 248 Ga. 299,

282 S.E.2d 906 (1981); Krueger v. Mitchell, 112 Wis.2d 88,

101, 332 N.W.2d 733, 739 (1983); Baker v. Burbank-Glendale-

Pasadena Airport Authority, 39 Cal.3d 862, 218 Cal.Rptr.

293, 705 P.2d 866 (1985); Ursin v. New Orleans Aviation

Board, 506 So.2d 947, 955 (La.App. 5th Cir.1987).5 The

Solicitor General, in a brief filed at the Supreme Court’s

invitation in Greater Westchester, informed the Court that

Luedtke had been decided incorrectly but that because

Luedtke stood alone the conflict did not require resolution.

We must decide whether to maintain a go-it-alone

position. Three things persuade us that Luedtke is incor-

rect and that we should fess up to the error.

1. Preemption of state law depends on either a com-

prehensive federal regimen (“occupation of the field”),

usually established by express Statutory declaration, ora

clash between state and federal norms (a fight that the

federal rules win under the Supremacy Clause). Silkwood

v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621,

78 L.Ed.2d 443 (1984). See also, e.g., Capital Cities Cable,

Inc. v. Crisp, 467 U.S. 691, 698-99, 104 S.Ct. 2694,

5. Bryski v. City of Chicago, 148 Ill. App.3d 556, 101 ill.Dec. 795, |

499 N.E.2d 162 (2d Dist.1986), finds state claims preempted

on the authority of Luedtke.

App. 18

2699-2700, 81 L.Ed.2d 580 (1984) (collecting cases); Louisi-

ana Public Service Comm'n v. FCC, 476 U.S. 355, 106 S.Ct.

1890, 90 L.Ed.2d 369 (1986); CTS Corp. v. Dynamics Corp.,

481 U.S. 69, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987). The

Federal Aviation Act does not expressly preempt state

damages remedies. To the contrary, § 1106 of the Federal

Aviation Act, 49 U.S.C.App. § 1506, provides that

“InJothing contained in this chapter shall in any way

abridge or alter the remedies now existing at common

law or by statute, but the provisions of this chapter are in

addition to such remedies.” Luedtke did not mention this

anti-preemption statute. Statutes of this sort save com-

mon law remedies even when federal law exclusively

determines the content of substantive rules. International

Paper Co. v. Ouellette, 479 U.S. 481, 497-98, 107 S.Ct. 805,

814-15, 93 L.Ed.2d 883 (1987); Brown v. Hotel & Restaurant

Employees, 468 U.S. 491, 505-07 104 S.Ct. 3179, 3187-88, 82

L.Ed.2d 373 (1984). Section 1106 is no exception. Nader v.

Allegheny Airlines, Inc., 426 U.S 290, 298-300, 96 S.Ct. 1978,

1984-85, 48 L.Ed.2d 643 (1976), holds that § 1106 pre-

serves against preemption a claim for fraudulent misrep-

resentation in selling tickets for air travel. State courts

award compensation for takings in inverse condemnation

cases, although if there is complete federal preemption

the national rather than the local government should be

the payor. State courts award damages every day in air

crash cases, notwithstanding that federal law preempts

the regulation of safety in air travel. If damages are

available for takings, and common law remedies are

available on questions of fraud and safety, why not on

questions of noise and chemical emissions?

App. 19

2. Burbank, on which we relied in Luedtke, was a

different kind of problem altogether. The City of Burbank

had enacted a curfew, forbidding departures of jet air-

craft from a privately-owned airport between 11 p.m. and

7 a.m. This directly regulated the airport’s operations,

interfering with the Federal Aviation Administration’s

contrary judgment. The Supreme Court distinguished in

Burbank between the state’s role as a regulator and its role

as a proprietor of airports, observing that it was not

questioning the ability of a governmental body to deter-

mine how it would rur its own airports. 411 U.S. at

635-36 & n. 14, 93 S.Ct. at 1860-61 & n. 14. It stepped back

from this issue because both reports on the statute estab-

lishing federal noise rules stated expressly that local gov-

ernments could set their own standards as proprietors.

See H.R.Rep. 92-842, 92d Cong., 2d Sess. 8-10 (1972);

S.Rep. 92-1160, 92d Cong., 2d Sess. 10-11 (1972), US.

Code Cong. & Admin.News 1972, p. 4655.

So Illinois has some role notwithstanding Burbank in

governing the amount of noise and pollution that escapes

from O’Hare. We need not and do not say just what the

role is, although other courts have read Burbank as allow-

ing a state to exclude certain kinds of aircraft in order to

reduce noise. E.g., British Airways Board v. Port Authority

of New York, 558 F.2d 75 (2d Cir.1977) (exclusion of Con-

corde). Illinois might choose to exercise such powers as it

has through the City of Chicago, the “owner” of O’Hare.

It might withdraw home rule from Chicago and exercise

these powers through legislation of general application.

Or it might exercise these powers through the courts.

Neither the Constitution nor the Federal Aviation Act, as

amended by the Noise Control Act of 1972, determines

App. 20

how Illinois apportions its governmental powers. Whalen

v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 1436

n. 4, 63 L.Ed.2d 715 (1980); Mayor of Philadelphia v. Educa-

tional Equality League, 415 U.S. 605, 615 n. 13, 94 S.Ct.

1323, 1330 n. 13, 39 L.Ed.2d 630 (1974); Highland Farms

Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81

L.Ed. 835 (1937); Prentis v. Atlantic Coast Line Co., 211 U.S.

210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Dreyer v.

Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79

(1902); United Beverage Co. v. Indiana Alcoholic Beverage

Comm'n, 760 F.2d 155 (7th Cir.1985). Whether Illinois

should allow its courts some role in setting noise levels at

O’Hare is the state’s business. The federal role is limited

to defining the powers of the state as an entity. Given the

recognition in Burbank that the state may govern the

operation of airports it owns, the conclusion in Luedtke

that every conceivable role for state courts has been

preempted is untenable.

3. Burbank dealt with regulation: the city enacted a

substantive rule. Bieneman wants damage, not regula-

tion. Perhaps this is a distinction without a difference. An

award of damages is compensatory from Bieneman’s per-

spective, but from O’Hare’s it is no different from regula-

tion. The airport and the air carriers see the award of

damages as a signal to stop doing whatever led to the

decision, just as the monetary penalty for violating an

express substantive rule would lead them to desist. Dam-

ages for disobeying an acknowledged rule discourage

that disobedience and also induce potential defendants to

steer clear of the danger zone, to discontinue conduct

that in fact complies with the rule but could be mistaken

for noncompliance. It is hard (and costly) to determine

App. 21

facts, and the errors inevitable in litigation may discour-

age beneficial conduct. So too, excessive awards might

discourage conduct that is questionable under existing

rules but beneficial on balance (and therefore goes

unchallenged by the agency with control of the substan-

tive doctrines).

The identity of common law damages and penalties

for disobedience to substantive rules could lead to a

conclusion that where a state is forbidden to alter the

substantive rule it is forbidden to award damages. Silk-

wood v. Kerr-McGee rejects this equation, however. The

Court held in Pacific Gas & Electric Co. v. State Energy

Conservation & Development Comm'n, 461 U.S. 190, 103

S.Ct. 1713, 75 L.Ed.2d-752 (1983), that federal law occu-

pies the field of nuclear safety regulation. Notwithstand-

ing the argument (indeed the truism) that an award of

hefty compensatory and punitive damages is a method of

regulating safety, the Court concluded that federal law

does not preempt common law remedies concerning

nuclear safety. “Silkwood ... highlights the extreme reluc-

tance of the modern Court to find preemption.” Ronald

D. Rotunda, Sheathing the Sword of Federal Preemption, 5

Constitutional Commentary 311, 317 (1988). If no pre-

emption is the conclusion notwithstanding the absence

from nuclear safety legislation of a statute such as § 1106,

it must be the appropriate treatment of air travel as well.

Luedtke did not mention any of these considerations,

and its holding cannot be maintained in the face of them.

We overrule Luedtke to the extent it holds that all common

—

App. 22

law remedies for airport noise and pollution have been

preempted by federal law.®

A word on what this means. Bieneman wants com-

mon law remedies, but these must be remedies for

wrongs, as in Silkwood, or for those aspects of airport

operation within the state’s control as proprietor under

Burbank. Federal law governs much of the conduct of

O’Hare and its carriers. See 14 C.FR. Part 36 (noise

characteristics of aircraft), Part 150 (noise abatement pro-

cedures at airports). A state court could not award dam-

ages against O’Hare or its users for conduct required by

these regulations, or for not engaging in noise abatement

procedures that the Federal Aviation Admistration con-

sidered but rejected as unsafe. Bieneman’s complaint sug-

gests that damages should be awarded because there are

too many flights per hour, or because the aircraft are

older models not fitted with high-bypass turbofan

engines, or because the planes do not climb at a suffi-

ciently steep rate after takeotf. These subjects are gov-

erned by federal law, and a state may not use common

law procedures to question federal decisions or extract

money from those who abide by them. There may be, on

the other hand, aspects of O’Hare’s operations that

offend federal law, or that federal norms do not govern.

Perhaps, as Bieneman insists, the airport does not use

adequate noise baffles around the perimeter of the air-

port, or perhaps it has built more runways than federal

6. Because this opinion overrules a portion of the decision in

Luedtke, it was circulated to all judges in regular active

service under Circuit Rule 40(f). No judge requested that the

case be heard en banc.

App. 23

law requires (to the detriment of those under the new

ones), or is out of compliance with the governing federal

rules. The essential point is that the state may employ

damages remedies only to enforce federal requirements

(as in Silkwook) or to regulate aspects of airport operation

over which the state has discretionary authority.

This disposes of the federal defense to the claims

under state law. Remaining questions about the common

law of illinois are more appropriately resolved in state

court, since no ground of federal jurisdiction survives.

We therefore affirm the district court’s judgment to the

extent it rejects all of Bieneman’s claims under the Con-

stitution, vacate the judgment to the extent it holds that

claims under state law are preempted, and remand with

directions that the court relinquish jurisdiction under

Gibbs, so that Bieneman may pursue his state-law conten-

tions in state court.

App. 24

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LAWRENCE BIENEMAN, on his)

own behalf and on behalf of all )

persons similarly situated, )

Plaintiffs,

V. ) No. 84 C 10388

THE CITY OF CHICAGO, et al., ‘

Defendants. )

)

DELBERT BIDDISON, on his own _ )

behalf and on behalf of all persons _)

similarly situated, )

Plaintiffs, ‘ i

V. ) No. 85 C 10295

THE CITY OF CHICAGO, et al., ‘

Defendants. )

MEMORANDUM OPINION

Lawrence Bieneman and Delbert Biddison own

homes near O’Hare International Airport and claim var-

ious injuries from the noise, vibrations, and air pollution

that O’Hare inflicts on its neighbors. Each has sued the

City of Chicago - which owns and operates O’Hare - and

several airlines, seeking relief both on his own behalf and

on behalf of “all persons who own, use or reside in

residential real property situated in Illinois within the

territorial boundaries of Cook County and DuPage

County, under or adjacent to the paths of aircraft

approaching, departing or circling O’Hare International

Airport.” Bieneman v. City of Chicago, No. 84 C 10388;

App. 25

Biddison v. City of Chicago, No. 85 C 10295. The two cases

have been found related, and come before the court today

on defendants’ motions to dismiss.

Bieneman’s and Biddison’s eight-count First

Amended Complaints are nearly identical, and name as

defendants the City, Harold Washington in his official

capacity as Mayor of the City of Chicago, Jerome Butler

in his official capacity as acting Commissioner of the

Department of Aviation of the City of Chicago (collec-

tively, “the City defendants”), and seven companies pro-

viding air passenger service at O’Hare: American

Airlines, Inc.; Delta Airlines, Inc.; Northwest Airlines,

Inc.; Ozark Airlines, Inc.; Trans World Airlines, Inc.;

United Air Lines, Inc.; and USAirlines, Inc. (collectively,

“the airline defendants”).

Court I of each First Amended Complaint accuses the

City defendants of maintaining an official policy that has

1. Rule 23(c)(1) of the Federal Rules of Civil Procedure pro-

vides that “[a]s soon as practicable after the commencement

of an action brought as a class action, the court shall deter-

mine by order whether it is to be so maintained.” Although

the Seventh Circuit has emphasized the importance of com-

pliance with this requirement, see, e.g., Glidden v. Chromalloy

American Corp., 808 F.2d 621 (7th Cir. 1986), no party in

either Bieneman or Biddison has sought a determination of

whether it is appropriate to maintain these cases as class

actions. It appears likely from the face of the complaints that

class action status is appropriate, but the court declines to

make such a determination without the participation of

counsel. Presumably some party will raise the issue in the

near future. Since the status of these cases as class actions is

irrelevant to the motions before the court today, the court

proceeds to address the merits of those motions.

' | i —

App. 26

deprived plaintiffs of their Fourteenth Amendment rights

to life, liberty, and property in violation of 42 U.S.C.

§ 1983. Count II accuses the airline defendants of acting

under color of state law as co-conspirators with the City

to deprive plaintiffs of their Fourteenth Amendment

rights in violation of § 1983. Count III is an inverse

condemnation claim against the City.

Count IV alleges that the City’s operation of O’Hare

constitutes a continuing nuisance. Count V is a claim

against the City for assault and battery. Count VI alleges

that the airline defendants are joint venturers with the

City in the operation of O’Hare and therefore are liable

together with the City for the injuries alleged in Counts

III-V. Count VII seeks a declaratory judgment that federal

law does not preempt plaintiffs’ state law tort claims

against the City. Finally, Count VIII alleges that the City

violated plaintiffs’ Fourteenth Amendment rights by tak-

ing their property without due process.

The City defendants have moved to dismiss Counts I,

III, IV, V, VII, and VIII in Bieneman, and Counts I, IV, V,

VII, and VIII in Biddison. In Biddison the City defendants

have also filed a motion for summary judgment on Count

III, but the court has suspended briefing on that motion

pending additional discovery. The airline defendants

have moved to dismiss Count VI in both Bieneman and

Biddison. Because the parties have consolidated briefing

in the Bieneman and Biddison cases, the court now has

before it a single set of briefs addressing the merits of

Counts I, Ill, IV, V, VII, and VIII of the First Amended

Complaints, and a single set of briefs addressing the

merits of Count VI of those complaints. The court exam-

ines each count in turn.

App. 27

Counts I and II

Counts I and II of the First Amended Complaints

restate claims that Judge Decker dismissed from Biene-

man’s original complaint on October 23, 1985. This court

declined to reconsider Judge Decker’s order and made it

applicable to the Biddison case. Plaintiffs say they have

repleaded Counts I and II in order to preserve their right

to appeal Judge Decker’s dismissal of those counts. See

London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

1981) (plaintiff waives all claims alleged in the original

complaint which are not reasserted in the amended com-

plaint); contra Wilson v. First Houston Investment Corp., 566

F.2d 1235, 1238 (Sth Cir. 1978) (plaintiff who filed

amended complaint after dismissal may raise on appeal

the correctness of the dismissal order). It is not for this

court to decide whether plaintiffs who file amended com-

plaints must replead dismissed claims in order to pre-

serve those claims for appeal; in this case plaintiffs have

chosen to replead the dismissed claims, and Judge

Decker’s ruling remains the law of the case. Counts I and

II are dismissed.

Count III

Count III of Bieneman’s complaint alleges that “in

1976 Defendant City of Chicago destroyed the use and

enjoyment of Plaintiffs’ properties, damaged and

destroyed Plaintiffs’ airspace, dwellings, and other struc-

tures on Plaintiffs’ properties, and totally destroyed the

value of Plaintiffs’ property as residences.” By virtue of

this conduct, Bieneman continues, “Plaintiffs’ properties

and airspace, and each of them, have been confiscated,

App. 28

condemned, taken and made useless by Defendant City

of Chicago without due process and without compensa-

tion in violation of the Fourteenth Amendment to the

Constitution of the United States.” The City moves to

dismiss Count III on the ground that it fails to state a

claim under the Fourteenth Amendment, and in any

event is barred by the statute of limitations.

Unlike Bieneman’s other federal claims —- Counts I

and II, which allege violations of § 1983 - Count IIl

alleges only a violation of the Fourteenth Amendment.

There is strong authority that the Fourteenth Amendment

does not support a direct cause of action against a munic-

ipality when the municipality is subject to suit under

§ 1983.

The Supreme Court did imply a cause of action aris-

ing directly under the Constitution in Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),

where the Court held that victims of constitutional viola-

tions by federal agents may sue the agents despite the

absence of a statutory cause of action. But the Court

subsequently held that such a cause of action is not

available when “Congress has provided an alternative

remedy which is explicitly declared to be a substitute for

recovery directly under the Constitution and viewed as

equally effective.” Carlson v. Green, 446 U.S. 14, 18-19

(1980) (emphasis in original). Lower courts subsequently

have expressed considerable reluctance to expand the

number of direct actions allowed under the Constitution

absent explicit Supreme Court approval, reading Carlson

to limit the availability of such causes of action to circum-

stances where no alternative statutory remedy exists. See,

App. 29

e.g., Morris v. Washington Metropolitan Area Transit Author-

ity, 702 F.2d 1037, 1042 n. 10 (D.C. Cir. 1983).

Since the Supreme Court’s decision in Monell v.

Department of Social Services, 436 U.S. 658 (1978), it has

been clear that § 1983 provides a cause of action against

municipalities and municipal employees acting in their

official capacities, and courts accordingly have declined

to allow direct constitutional claims against local govern-

ments. As one court in this district has concluded, “Con-

gress intended § 1983 to be the exclusive federal remedy

for the unconstitutional actions of city officials.” Strauss

v. City of Chicago, 614 F.2d 9, 10 (N.D. Ill. 1984), aff’d 760

F.2d 765 (7th Cir. 1985). Accord Williams v. Bennett, 689

F.2d 1370, 1390 (11th Cir. 1982); Ward v. Caulk, 650 F.2d

1144, 1147-48 (9th Cir. 1981). Indeed, the D.C. Circuit

‘noted in Morris that since the Supreme Court’s Monell

decision every court of appeals to address the issue has

concluded that no direct cause of action exists under the

Fourteenth Amendment against nonfederal defendants.

702 F.2d at 1042 n. 10. In view of the many decisions

rejecting direct causes of action under the Constitution

when statutory remedies are available, and in view of the

fact that the Supreme Court has recognized a cause of

action against a municipality under § 1983 for inverse

condemnation, Lake Country Estates v. Tahoe Planning

Agency, 440 U.S. 391, 399-400 (1979), this court concludes

that Bieneman does not have a direct cause of action

against the City under the Fourteenth Amendment.

Only one recent case provides contrary authority,

holding in a footnote that “[b]ecause an alleged ‘taking’

in violation of the fifth and fourteenth amendments pre-

sents a serious constitutional question, a direct cause of

App. 30

action lies -within the district court’s federal question

jurisdiction.” Amen v. City of Dearborn, 718 F.2d 789, 792 n.

4 (6th Cir. 1983). But Amen cites as its only authority two

pre-Monell cases, Gordon v. City of Warren, 579 F.2d 386,

391 (6th Cir. 1978), and Muskegon Theaters, Inc. v. City of

Muskegon, 507 F.2d 199, 200 (6th Cir. 1974), which allowed

direct Fourteenth Amendment inverse condemnation

actions against municipalities on the ground that no rem-

edy was available under § 1983. In light of Monell and

Lake Country Estates, such reasoning is no longer valid.

Bieneman cannot save Count III by amending it to

allege a violation of his rights under § 1983. “[I)n Illinois,

a plaintiff whose section 1983 cause of action accrued

before the [Supreme Court’s decision in Wilson v. Garcia,

105 S.Ct. 1938 (1985)], must file suit within the shorter

period of either five years from the date his action

accrued or two years after Wilson.” Anton v. Lehpalmer,

787 F.2d 1141 (7th Cir. 1986). Because Bieneman’s cause of

action under § 1983 arose in 1976, more than five years

before he brought this suit, the statute of limitations bars

his claim. Count III of Bieneman’s complaint is dismissed.

Counts IV and V

The City raises two arguments against Counts IV and

V, which allege the torts of nuisance and assault and

battery: first, that federal law preempts state tort claims

against airport proprietors; and second, that Illinois

courts have not recognized a cause of action against the

proprietor of a transportation facility for the lawful, non-

negligent operation of that facility.

App. 31

As the City points out, Luedtke v. County of Milwaukee,

521 F.2d 387 (7th Cir. 1975) is a formidable obstacle to

plaintiffs’ tort claims. In Luedtke the Seventh Circuit held

that federal law preempts state negligence and nuisance

actions against airport proprietors and airlines so long as

the airports and airlines are operating consistently with

federal iaws and regulations. 521 F.2d at 391. Accord,

Bryski v. City of Chicago, 148 Ill. App. 3d 556, 564 (2nd

Dist. 1986).

Plaintiffs acknowledge Luedtke, but argue that it is no

longer good law in light of the Supreme Court’s decision

in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). Silk-

wood holds that federal regulation of the safety aspects of

nuclear energy does not preempt a state law action for

punitive damages for the release of plutonium from a

federally licensed facility. 464 U.S. at 258. The Court

based its conclusion on extensive evidence that Congress

intended to retain state tort remedies for nuclear injuries

when it enacted laws regulating nuclear safety, and on its

determination that the existence of state remedies would

neither frustrate the objectives of federal law nor create

an irreconcilable conflict between state and federal stan-

dards. Id. at 256.

Nothing in Silkwood suggests that the Seventh Circuit

erred in Luedtke when it held that federal regulation of air

transportation preempts state tort actions against airport

proprietors and airlines complying with federal law. Nei-

ther Luedtke nor the Supreme Court decision on which

Luedtke relied, City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624 (1973) (pervasive nature of scherne of

federal regulation of aircraft noise preempts local ordi-

nance limiting hours of take-offs by jet aircraft), finds any

App. 32

evidence of Congressional intent to allow state regulation

of airport operations. Indeed, City of Burbank recites sub-

stantial evidence that Congress did intend to preempt

local regulation of airport noise. 411 U.S. at 633-39. Silk-

wood’s conclusion that federal law does not preempt state

tort actions in the area of nuclear safety does nothing to

undermine Luedtke’s conclusion that federal law preempts

such claims in the unique and entirely unrelated field of

air transportation.

Because Luedtke remains good law in the Seventh

Circuit, this court must follow it. Counts IV and V are

dismissed because they assert state tort claims preempted

by federal law. It is unnecessary to address the City’s

alternative argument for the dismissal of Counts IV and

Count VI

Count VI alleges that the airline defendants are joint

venturers with the City in the operation of O’Hare, and

thus are liable together with the City for the inverse

condemnation alleged in Count III, and for the common

law torts alleged in Counts IV and V.

As the court has already concluded, federal law pre-

empts plaintiffs’ state tort claims. Luedtke v. County of

Milwaukee, 521 F.2d at 391. Luedtke and Griggs v. Allegheny

County, 369 U.S. 84, 89 (1962) foreclose plaintiffs’ inverse

condemnation claim against the airlines; both cases

squarely hold that airlines may not be held liable for the

taking of property adjacent to airports from which the

airlines operate flights. Count VI is dismissed.

aa aa cia

App. 33

Count VII

In Count VII plaintiffs request a declaratory judg-

ment that federal law does not preempt their state tort

claims against the City. Count VII is superfluous and an

inappropriate invocation of the district court’s power to

grant declaratory relief. If plaintiffs’ state tort claims

survive a motion to dismiss there is no need for a declara-

tion that federal law does not preempt them; on the other

hand, if the court dismisses the state tort claims on the

basis of preemption a request for a declaratory judgment

of non-preemption can fare no better. Count VII is dis-

missed for the same reasons as Counts IV and V.

Count VIII

Count VIII alleges that the City violated plaintiffs’

Fourteenth Amendment right to due process by acquiring

interests in their property without notice or a hearing.

This adds nothing to the allegations of Count III. Assum-

ing plaintiffs can show that the City did actually “take”

their property, it is settled law that a governmental body

may take land without notice or a hearing, leaving the

landowner with an action for inverse condemnation as

his sole remedy. United States v. Clarke, 445 U.S. 253,

256-57 and n. 3 (1980); Barbian v. Panagis, 694 F.2d 476, 482

n. 6 (7th Cir. 1982). Count III asserts such a claim, so

Count VIII is redundant. Count VIII is dismissed.

CONCLUSION

Counts I, II, IV, V, VI, VII, and VIII of Bieneman v. City

of Chicago, No. 84 C 10388, and Biddison v. City of Chicago,

App. 34

No. 85 C 10295, are dismissed. Count Ill of Bieneman also

is dismissed.

ENTER:

/s/ Brian Barnett Duff

BRIAN BARNETT DUFF, JUDGE

UNITED STATES DISTRICT

COURT

DATE: June 8, 1987

App. 35

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LAWRENCE C. BIENEMAN,

Plaintiff,

)

) NO. 84 C 10388

THE CITY OF CHICAGO,

)

et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Lawrence Bieneman (Bieneman), owns real

property near O’Hare Airport (O’Hare). He claims the

noise, vibration and pollution incident to the operation of

O’Hare violate his constitutional rights. Therefore, he

brought this class action under 42 U.S.C. § 1983 against

the City of Chicago (the “City”), certain city officials, and

various airlines (the “Airlines”). First, plaintiff alleges

that, by its operation of O’Hare, the City intentionally

deprived him of his Fourteenth Amendment rights

(Count I). Next, plaintiff claims the Airlines conspired

together and with the City to operate O’Hare in a manner

violative of those rights (Count II). Finally, plaintiff

alleges the City’s operation of O’Hare constitutes a taking

of his property without compensation in violation of the

Fourteenth Amendment (Count III). Plaintiff seeks dam-

ages and injunctive relief.

| The City moves to dismiss Count I for failure to state

a Claim.! It also seeks dismissal of Count III for failure to

1. In considering a motion to dismiss, the court must “take

[plaintiff’s] allegations to be true, and view them, together

(Continued on following page)

App. 36

join a necessary and indispensable party under Fed. R.

Civ. P. 12(b)(7) and 19(b), or in the alternative, for a more

definite statement of Count III. The Airlines move to

dismiss Count II for lack of subject matter jurisdiction

and failure to state a claim.

I. Discussion

1. Count I

Plaintiff complains that the City’s operation of

O’Hare results in a high volume of noise, vibration and

air pollution harming residents of the surrounding com-

munity and their property. This may be, but plaintiff

must identify a Fourteenth Amendment liberty or prop-

erty interest violated by such activities to state a cause of

action under § 1983. Jackson v. Byrne, 738 F.2d 1443,

1445-1446 (7th Cir. 1984). It is well settled that liberty and

property interests arise from state law and the Due Pro-

cess Clause itself. Hewitt v. Helms, 459 U.S. 460, 466

(1983).

Plaintiff rightly admits there is no constitutional right

to protection from general environmental harms. Plaintiff

argure, However, that this case “should be treated ... [as

(Continued from previous page)

with reasonable inferences to be drawn therefrom, in the light

most favorable to the plaintiff.” Powe v. City of Chicago, 664 F.2d

639, 642 (7th Cir. 1981). Dismissal for failure to state a claim is

proper only if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

App. 37

one] involving official policies that result in the inten-

tional beating of citizens with fists and clubs.” Plaintiff’s

Memorandum at 18. In essence, plaintiff alleges the noise,

vibration and pollution at O’Hare constitute an assault

and battery. Plaintiff, however, cites no case adopting this

novel theory.” The court finds plaintiff's analogy between

fists and club and airplane noise wholly inappropriate.

Plaintiff’s claim is better analogized to common law nui-

sance and the Seventh Circuit has expressly held that

such tort rights “are not property rights under the Four-

teenth Amendment.” Brown v. Brienan, 722 F.2d 360, 364

(7th Cir. 1983). Plaintiff’s analogy also stretches the scope

of the Fourteenth Amendment and § 1983 beyond plaus-

ible limits. If noise from a lawfully operated airport is

actionable under § 1983, so too are other normal govern-

ment operations; i.e., bus and train systems, construction

projects. Neither the Fourteenth Amendment nor § 1983

was intended to mandate such a result. Cf. Jackson v. City

of Joliet, 715 F.2d 1200, 1205 (7th Cir. 1983), cert, denied 104

S.Ct. 1325 (1984). Because plaintiff does not sufficiently

2. Plaintiff contends that the factually similar case of Virgin-

ians for Dulles v. Volpe, 344 F. Supp. 573 (E.D. Va. 1972), aff'd

in part, rev'd in part on other grounds, 541 F.2d 442 (4th Cir.

1976), recognized such a claim. The court disagrees. In Vir-

ginians for Dulles, the court characterized the plaintiffs’ due

process claim as one based on nuisance. The court, in dicta,

entertained the relevance of specific personal injury. Plaintiff

interprets this to mean that a due process claim can be based

on personal injury caused by airplane noise. The court's

discussion, however, occurs in the context of its consider-

ation of the nuisance claim and is relevant only thereto. The

Fourth Circuit so interpreted the court’s ruling on appeal.

Virginians for Dulles, 541 F.2d 442, 443-444 (4th Cir. 1976).

App. 38

allege violation of his Fourteenth Amendinent rights,

Count I cannot survive.

2. Count II

Count II alleges a conspiracy among the Airlines and

the City. Plaintiff’s Fourteenth Amendment claim is based

on the same faulty analogy rejected above. It is axiomatic

that there can be no conspiracy to do that which is legal.

Therefore, because plaintiff does not sufficiently allege

violation of his Fourteenth Amendment rights, his con-

spiracy claim lacks an essential element and must be

dismissed.°

3. Count III

A. Motion to Dismiss

It is undisputed that plaintiff pleads a valid cause of

action for the alleged taking of his property without

compensation. Griggs v. Allegheny County, 369 U.S. 84, 88

(1962). The issue raised by defendant’s motion is whether

the United States must be joined as a party to this action.

In Griggs, the Supreme Court held that the Airport “pro-

moter, owner and lessor” (the “proprietor”) was liable for

taking an air easement. Plaintiff argues that the City is

the sole proprietor of O’Hare and the only necessary

party to this action. The City contends, however, that by

3. The court also notes that, even if properly pleaded, no such

cause of action may be asserted against the Airline defen-

dants. The Seventh Circuit so held in Luedtke v. County of

Milwaukee, 521 F.2d 387, 389 (7th Cir. 1975).

App. 39

its independent control over certain land and operations

at O’Hare, the United States is a co-proprietor and as

such must be joined in this action. Defendants rightly

point out that the court has no jurisdiction over the

United States in this case because the United States can

only be sued for inverse condemnation in the United

States Claims Court where, as here, the claim exceeds ten

thousand dollars. 28 U.S.C. §§ 1346(a), 1491. Therefore, if

the United States is a necessary party, the court must

determine whether this action should, in equity and good

conscience, proceed without the United States. Fed. R.

Civ.P. 19(b).

The court must decide whether the United States is a

proprietor of O’Hare. Criteria relevant to this determina-

tion are ownership, operation, promotion and the ability

to acquire necessary easements. San Diego Unified Port

District v. Gianturco, 651 F.2d 1306, 1317 (9th Cir. 1981),

cert. denied 455 U.S. 1000 (1982).

The United States originally selected the site and

owned the land on which O’Hare is now situated.

Through a series of conveyances, it has transferred most

of that land to the City. The United States retained a

variety of controls over the land and operations at

O’Hare as a condition of these conveyances. In particular,

the City was obligated to, 1) use the land for airport

purposes; 2) deny an exclusive right of use to any third

party; 3) maintain the land and improvements in good

condition; and 4) prevent the development of navigation

hazards. In deeds executed in 1946 and 1972, the United

States retained reversionary rights which vest if these

conditions are not satisfied. See Exhibits “B-1,” “B-7,” and

“B-8” to Defendant’s Memorandum. Furthermore, the

App. 40

United States has title to a small portion of land at

O’Hare which it uses independently for maintenance and

operation of its military aircraft.

Considering these and defendant’s other arguments,

the court is not convinced that the United States is a

proprietor of O’Hare. The conditions set out in the deeds

cited above implicitly assume that the City operates

O’Hare. These conditions can be satisfied only by

O’Hare’s operator. The reversions constitute a remote

interest in certain land at O’Hare, but do not evidence

any active operation thereof.*

The United States’ flights out of O’Hare constitute

less than one percent of the airport’s total flights. See

Exhibit “4” to Plaintiff’s Memorandum. Furthermore, the

United States’ independent operations at O’Hare are not

at issue in this case. Plaintiff’s complaint attacks only the

City’s operations at O’Hare. The City has no control over

the United States’ operations and therefore cannot be

responsible for an easement created thereby.

The court is a!so mindful that in numerous docu-

ments, including O’Hare’s operating license and a City

ordinance authorizing revenue bonds for O’Hare con-

struction, the City is listed as the sole operator of O’Hare.

See Exhibits “2F,” and “3” to Plaintiff's Memorandum.

These and other documents indicate that the United

4. The reversions may vest only upon violation of the afore-

mentioned conditions. These conditions, however, are not

implicated in this action. Therefore, there is little likelihood

that the United States’ interest in O’Hare will become more

immediate and important as a result of this litigation.

App. 41

States plays no active role in the proprietary operation of

O’Hare. See generally Exhibits to Plaintiff's Memorandum.

In sum, the court finds that the City is the sole proprietor

of O’Hare and the only necessary party to this action.

Accord Illinois ex rel. Scott v. Butterfield, 396 F. Supp. 632,

645 (N.D. Ill. 1975).

Alternatively, the court is convinced that even if the

United States is a necessary party, equity and good con-

science dictate that this action proceed without it. The

factors considered by the court in this regard include, 1)

the extent to which a judgment rendered in the absence of

the United States might prejudice the United States or the

City; 2) the extent to which that prejudice can be mini-

mized by shaping the appropriate relief; 3) whether the

relief so shaped is adequate; and 4) whether plaintiff has

another available forum. Fed. R. Civ. P. 19(b).

Of greatest import is the lack of another available

forum. Defendant admits that it cannot be joined by

plaintiff as a matter of right in the United States Claims

Court. Further, because the United States Operates rela-

tively few flights out of O’Hare, the court is confident

that adequate relief can be fashioned in its absence and

the practical likelihood of multiple proceedings is low. In

addition, there is little possibility that proceeding will

prejudice the City or the United States. Any such preju-

dice is outweighed by the aforementioned counterveiling

factors.

B. Motion for More Definite Statement

The court finds merit in defendant’s motion for a

more definite statement of the time at which the alleged

App. 42

taking occurred. Under plaintiff’s theory of liability, at

some point in time, the operations at O’Hare so burdened

his property as to constitute a partial taking thereof. For

plaintiff to recover compensation from the City for this

easement, he must show that he held title to the property

at the time the easement was created. Therefore, plaintiff

must allege in his complaint the time he took title to the

property and the approximate time the easement was

created. See Branning v. United States, 654 F.2d 88, 102-103

(Ct. Cl. 1981).

II. Conclusion

For the foregoing reasons, defendants’ motions to

dismiss Counts I and II of the complaint are granted. The

City’s motion to dismiss Count III is denied. The court

grants the City’s motion for a more definite statement.

ENTER:

/s/ Bernard M. Decker

United States District Judge

DATED: October 23, 1985

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.