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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1080

## 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.

il

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
I
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

iv

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

—

f
r

nl

TABLE OF AUTHORITIES-—Continued

4
—

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.

7X
-

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

,%
vv

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.

&
4

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).

>
4

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.

a
hd

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.

,%
ed

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)

9

(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

10

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

11

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.

12

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.

13

(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.

14

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.

15

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

16

(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.

—— —___—_—_—_—_@— ——————————————

17

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,

v.

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.

I

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.

I]

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.

IV

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
V.

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.

ta

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1035%3A1. Public record. Not legal advice.