Appendixmm — Bieneman v. Chicago
Supreme Court brief1989
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EPH F. SPANIOL, JR.
ter fQerK
Supreme Court of the Anite
@ctober Term, 1988
LAWRENCE C. BIENEMAN, on his own behalf
and on behalf of all persons similarly situated,
Petitioners,
v.
THE CITY OF CHICAGO; EUGENE SAWYER, in
his official capacity as Acting Mayor of the City
of Chicago; HOWARD STANBACK, in his official
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 WORLD
AIRLINES, INC.; UNITED AIR
LINES, INC.; and, USAIRLINES, INC.,
Respondents.
APPENDIX TO PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
JOSEPH V. KARAGANIS
A. Bruce WHITE
KATHLEEN M. DONAHUE
ELLEN LoIs ZISOOK
Karaganis & White Ltd.
414 North Orleans
Suite 810
Chicago, Illinois 60610
(312) 836-1177
Attorneys for Petitioners
Pandick Technologies, Inc., Chicago © (312) 236-0200 i y)
i
TABLE OF CONTENTS
Page
Mandate, dated January 5, 1989, Bieneman, et al.
v. City of Chicago, et al., No. 88-2399 ........ A-1
Judgment Order, dated December 13, 1988,
Bieneman, et al. v. City of Chicago, et al....... A-3
Opinion, dated December 13, 1988, Bieneman, et
al. v. City of Chicago, et al., No. 88-2399...... A-4
Judgment Order, dated June 28, 1988, denying
Plaintiff’s motion for class certification and
dismissing Plaintiff’s cause of action with
prejudice, Bieneman, et al. v. City of Chicago,
. Se ee er A-23
Minute Order, dated June 24, 1988, denying
Plaintiff’s motion for class certification and
dismissing the case with prejudice, Bieneman,
et al. v. City of Chicago, et al.,
Pee te Gr I 6 ge sre ic as ec ace A-24
Transcript of Proceedings, dated June 24, 1988,
Bieneman, et al. v. City of Chicago, et al.,
Se: ee ee ewe eee eas A-25
Mandate, dated February 26, 1988, Bieneman, et
al. v. City of Chicago, et al., No. 87-2077..... A-34
Judgment Order, dated February 3, 1988,
Bieneman, et al. v. City of Chicago, et al.,
PO EE 65s 8 ie er ek hee nese oe A-36
Opinion, dated February 3, 1988, Bieneman, et al.
v. City of Chicago, etal., No. 87-2077 ....... A-37
ii
Page
Judgment Order, dated July 23, 1987, dismissing
Counts I, II, IV, V, VI, VII and VIII and Count
III, Bieneman, et al. v. City of Chicago, et al.,
oe Rte | ac A-42
Minute Order, July 21, 1987 nunc pro tunc June 8,
1987, entering judgment and dismissing Counts
I, II, IV, V, VI, VII and VIII and Count III,
Bieneman, et al. v. City of Chicago. et al.,
Ben. eS Rs a kn ck Oda eee ee A-43
Minute Order, dated June 8, 1987, dismissing
Counts I, II, IV, V, VI, VII and VIII and Count
III, Bieneman, et al. v. City of Chicago, et al.,
Ben. Be GG AEs A 5 0s an eG Ore ee eee A-44
Memorandum Opinion, dated June 8, 1987,
Bieneman, et al. v. City of Chicago, et al.,
wee: GGUS Pe «6 eck tee eee A-45
First Amended Complaint, Bieneman, et al. v. City
of Chicago, et al., No. 84 C 10388 ......... A-54
Minute Order, dated March 19, 1986, denying
Plaintiff’s Motion for Reconsideration, Biene-
man, et al. v. City of Chicago, et al.,
mo Oe GP ce cd ce eucaue eo A-84
Minute Order, dated October 23, 1985, grant-
ing motion to dismiss Counts I and II, denying
motion to dismiss Count III, and granting motion
for a more definite statement, Bieneman, et al. v.
City of Chicago, et al., No. 84 C 10388...... A-86
Memorandum Opinion and Order, dated October
23, 1985, Bieneman, et al. v. City of Chicago, et
Oc.; tee. O6 GC UGG kk os C2 ee ee eee A-87
A-1
United States Court of Appeals
For the Seventh Circuit
219 South Dearborn Street
Chicago, Illinois 60604
Date: January 5, 1989
Thomas F. Strubbe
Clerk
312-435-5850
Mr. H. Stuart Cunningham, Clerk
United States District Court
219 South Dearborn Street
Chicago, Illinois 60604
Re: LAWRENCE C. BIENEMAN,
on his own behalf and on
behalf of all persons Appeal from the
similarly situated, - sniagsilie
Plaintiff-Appellant \ sa ted et cae
v8.
< The Honorable
THE CITY OF CHICAGO, et Harry D. Leinenweber,
al., Judge Presiding.
Defendants-Appellees. |}
Dear Clerk:
Herewith is the mandate of this Court in the above-
entitled appeal. “A certified copy of the judgment and a
copy of the opinion of the Court, if any, and any direc-
tion as to costs shall constitute the mandate.” (F.R.A.P.
41(a)). I am also returning the original record of your Dis-
trict Court, which was transmitted to this office for use on
appeal. Please acknowledge receipt on the enclosed copy of
this letter.
A-2
Contents of Record Being Returned Later:
Contents of Record being Returned:
3 Vols. Pleadings
2 Vols. Transcripts
2 Bound Vols.
/s/ MABEL L. BOBER
U.S.C.A. Deputy Clerk
Copies Mailed To:
Mark E. JONES
180 North LaSaile Street
Suite 801
Chicago, Illinois 60601
JAMES D. MONTGOMERY
Office of Corporation Counsel
121 North LaSalle
Suite 511
Chicago, Illinois 60601
JOSEPH V. KARAGANIS
414 North Orleans Street
Suite 810
Chicago, Illinois 60610
NOTE TO COUNSEL:
EDWARD L. FOOTE
1 First National Plaza
Suite 5000
Chicago, Illinois 60603
JEREMIAH MARSH
3 First National Plaza
Chicago, Illinois 60602
If any physical and large documentary exhibits have been filed in
the above-entitled cause, they are to be withdrawn ten days from the
date of this notice. Exhibits not withdrawn during this period will be
disposed of.
A-3
JUDGMENT — ORAL ARGUMENT
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 13, 1988
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. CoFFEy, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
—\
LAWRENCE C. BIENEMAN, Appeal from the
on his own behalf and on Unies whates Oisrict
Court for the Northern
behalf of all persons District of Illinois,
similarly situated, Eastern Division
Plaintiff-Appellant, >
No. 88-2399 vs.
No. 84 C 10388
The Honorable
CITY OF CHICAGO, et al., Harry D. Leinenweber,
Defendants-Appellees. } attain
This cause was heard on the record from the United
States District Court for the Northern District of Illinois,
Eastern Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment is
AFFIRMED to the extent it rejects all of Bineman’s [sic]
claims under the Constitution, the judgment is VACATED
_to the extent it holds that claims under state law are
preempted, and the cause is REMANDED with directions
that the Court relinquish jurisdiction under Gibbs, so that
Bieneman may pursue his state-law contentions in state
court, in accordance with the opinion of this Court filed
this date. Each party shall bear its own costs on appeal.
A-4
In the
United States Court of Appeals
For the Seventh Circuit
No. 88-2399
LAWRENCE C. BIENEMAN,
Plaintiff-Appellant,
v.
City OF CHICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 8 C 1038&—Harry D. Leinenweber, Judge.
SUBMITTED NoveMBER 1, 1988—DecipeEp DECEMBER 13, 1988*
Before PosNER, COFFEY, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge. Noise from O’Hare Air-
port 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, commenced this suit as a class
action on behalf of all other residents of northern Illinois
* The case was orally argued on January 6, 1988, but we dis-
missed the appeal for want of jurisdiction because the judgment
was not final. This new appeal, taken from a final judgment, has
been submitted to the original panel for decision without a second
ora] argument.
A-5
2 No. 88-2399
adversely affected by noise.! Bieneman contended that the
City of Chicago (which operates O’Hare) and the airlines
using O’Hare intentionally reduced the value of his land
by propagating noise and the chemicals in aircraft exhaust.
Two counts of the complaint alleged a deprivation of prop-
erty without due process, a third alleged a taking, and
other counts made claims under state tort law.
Decisions by three district judges have left Bieneman
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. Ill. 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 F. Supp. at 1298 n.1, Bieneman filed a notice
of appeal. After we dismissed this as premature, 838 F.2d
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
1 Bieneman became Mayor of Bensenville, Illinois, and that vil-
lage, joined by three others, filed suit in state court seeking an
injunction against the expansion of O’Hare. The villages lost. Vu-
lage of Bensenville v. City of Chicago, 16 Ill. App. 3d 733, 306
N.E.2d 562 (1st Dist. 1973). Bieneman, as Mayor of Bensenville,
was among the signatories to a consent decree affecting planning
for growth at O'Hare. Illinois ex rel. Scott v. Butterfield, No. 74
C 2440 (N.D. Ill. 1974). Bieneman personally was among the plain-
tiffs in a case challenging the Federal Aviation Administration’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.
A-6
No. 88-2399 | 3
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 incon-
sistent 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 certify
the case as a class action. Unless the district court abused
its discretion, we must respect its decision. Patterson 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 proposed class
contained at least 300,000 persons. Some of these un-
doubtedly 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 magni-
tude of any effect on residential owners depends on topog-
raphy, flight patterns, and many other variables; home-
owners 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 wonder courts
routinely decline to certify classes in airport-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 Air-
lines, 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,
525 P.2d 701 (1974).
Conceding this, Bieneman insists that the district court
should have certified a class for purposes of legal ques-
A-7
4 No. 88-2399
tions only, such as preemption and the length of the stat-
ute of limitations. Such a class could prevent inconsistent
outcomes in multifarious cases, achieving the objective of
Fed. R. Civ. P. 23(bX1). Maybe so; some courts have given
class treatment to questions of law while reserving issues
of fact for individual resolution. Sterling v. Velsicol Chemi-
cal Corp., 855 F.2d 1188, 1196-97 (6th Cir. 1988); In re
Agent Orange Product Liability Litigation, 818 F.2d 145,
166-67 (2d Gir. 1987); In re School Asbestos Litigation,
789 F.2d 996, 1008-10 (8d 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 adequacy 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 rul-
ing, does not resolve any concrete case, and it looks sus-
piciously like a request for an advisory opinion. (Sterling,
Agent Orange, and similar opinions contemplated that ques-
tions not covered by the class certification would be re-
solved by further proceedings in the same case, avoiding
this problem.)
Bieneman filed this case as a class action yet pursued
it for more then 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 ap-
peal that ‘fa 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,
abandoning members of the class pleaded in the complaint
and many of the issues originally identified for class treat-
ment, in the teeth of our observation that a representative
A-8
No. 88-2399 5
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, Ine. v. Rodriguez, 431 U.S.
395, 405 (1977). This is quite enough to support Judge
Leinenweber’s decision, and we resolve no other questions
concerning class certification.
II
Bieneman alleges that noise and noxious gasses emanat-
ing from O'Hare Airport deprive him of property without
oY rocess of law, and so allow a remedy under 42
SC §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 de-
prive anyone of “liberty or property” within the mean-
ing of the Due Process Clause. The desire to prosecute
a nuisance suit is not based on either liberty or proper-
ty, 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 prop-
erty in a chose in action—to which the answer, if perti-
nent, is “yes”. See Logan v. Zimmerman Brush Co., 455
U.S. 422, 428 (1982). Sending waves of noise across a
stranger’s land can “take” his property, see United States
v. Causby, 328 U.S. 256 (1946), and therefore must be able
to ‘‘deprive” him of “liberty or property” too. The prop-
erty interest is in the land, not in the mght 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).
A-9
6 No. 88-2399
The state is the aggressor in our case, however. The
complaint alleges that state actors manage O’Hare Air-
port so as to inflict injury on private persons. This for-
mally 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 (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, Biene-
man must show that the City of Chicago intentionally or
recklessly inflicted injury without due process of law. This
is so whether he contends that the violation is procedural
or substantive.?
No one supposes that the City of Chicago set out to
aggravate 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 wealthi-
est and most influential people in Illinois; noise injures
without regard to race, religion, and political beliefs. To
show “‘intent’’ (or at least recklessness), Bieneman main-
tains 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 (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 every-
one intends the natural and probable consequences of his
acts—and the consequences of the preference law were
apparent. The Supreme Court took a different view of in-
tent in constitutional law, however, distinguishing knowl-
edge from intent, byproduct from objective. A state may
know what its laws do, yet may not “‘intend”’ all of the
2 Whether there is such an animal as “substantive due process”
when the state affects property that it could choose to take out-
right is a subject we need not pursue. See Coniston Corp. v. Vil-
lage of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988).
A-10
No. 88-2399 7
consequences. Some of them may be unwelcome fallout
from activities undertaken for another reason. The essen-
tial 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 US. at 279.
Chicago intends to operate O’Hare Airport, 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 sub-
jects 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 (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 ad-
verse consequence, and to do nothing to palliate things,
is to “intend” that consequence. Under Feeney, the con-
tention fails.
A-11
8 No. 88-2399
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 (1962). also Chicago, Burlington & Quincy
R.R. v. Chicago, 166 U.S. 226, 233-41 (1897) (applying the
Takings Clause of the fifth amendment to the states through
the fourteenth). The right step logically is an inverse con-
demnation 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 un-
bearable. Since this suit was filed eight years later, the
defendants insist that it is untimely.
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 (1985). See also Goodman
v. Lukens Steel Co., 107 S. Ct. 2617 (1987) (same for §1981).
In I}linois 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 proper-
ty 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, hold-
ing that constituticnal 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, 107 S. Ct. 2378, 2386 n.9 (1987),
that takings suits may be filed directly under the Con-
stitution. It follows, Bieneman contends, that we should
use as the limitations period the most analogous period
A-12
No. 88-2399 9
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 governmen-
tal units. E.g., Rosenthal v. City of Crystal Lake, 171 Il.
App. 3d 428, 525 N.E.2d 1176 (2d Dist. 1988); DiSanto
v. City of Warrenville, 59 Ill. App. 3d 931, 376 N.E.2d
288 (2d Dist. 1978).
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 cancels
the holding of Garcia that the period of limitations appli-
cable to personal injuries governs all constitutional torts,
even though state law might use different periods for dif-
ferent wrongs. Each is questionable. Agency Holding Corp.
v. Malley-Duff & Associates, Inc., 107 S. Ct. 2759 (1987),
which applied a four-year period from antitrust law to
suits under a different federal statute that did not con-
tain 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. Teamsters, 462 U.S. 151 (1983) (applying
the six-month period from the National Labor Relations
Act to “hybrid” contract-duty of fair representation cases);
In re Data Access Systems Securities Litigation, 843 F.2d
1537 (3d Cir. 1988) (en banc) (applying the three-year pe-
riod 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 enforcing rights under
a federal consent decree). An appropriate 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 in-
verse condemnation actions under the Tucker Act, 28 U.S.C.
§1491(aX1). United States v. 422,978 Square Feet of Land,
445 F.2d 1180, 1187-89 (9th Cir. 1971); Stubbs v. United
A-13
10 No. 88-2399
States, 620 F.2d 775, 784 (10th Cir. 1980); ef. Kabua v.
United States, 546 F.2d 381, 383 (Ct. Cl. 1976). If this
six-year period were applied, Bieneman still would be out
of court.* And Chicago contests the submission that if
State law supplies a period of limitations, the 20-year ad-
verse 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
‘a0 to use. The answer to the first of these questions,
ased on 42 U.S.C. §1988, was “‘state law’. Section 1988
does not apply to a case in which the Constitution rather
than a civil rights statute supplies the remedy, 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 anal-
ogized to contracts, some to intentional torts, some to
negligent torts, some left to the catch-all statute)?, and
(b) if one period is to be used, which? Garcia and Good-
man concluded that only one period should be borrowed
from state law, the one generally applicable to personal
injuries.¢
3 The 12-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 (1986); Block v. North Dakota, 461 U.S.
273 (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.
4 The Court has heard oral argument in Owens v. Okure, 816
F.2d 45 (2d Cir. 1987), cert. granted, 108 S. Ct. 1218 (1988), which
presents the question whether a different rule should apply when
the state has a special period of limitations for intentional torts.
This complication need not detain us.
A-14
No. 88-2399 11
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 statute speaks to the ques-
tions. 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 particular facts of each claim dem-
onstrates that their approach inevitably breeds uncer-
tainty and time-consuming litigation that is foreign
to the central _—— of §1983. Almost every §1983
claim can be favorably analogized to more than one
of the ancient common-lav’ forms of action, each of
which may be governed by a different statute of lim-
itations. . . . If the choice of the statute of limitations
were to depend upon the particular facts or the pre-
cise 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 ap-
propriate statute of limitations to be an uncomplicated
task for judges, lawyers, and litigants, rather than
a source of uncertainty, and unproductive and ever-
increasing litigation. Moreover, 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 (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 (1971), are
identical save for the replacement of a state actor (§1983)
A-15
12 No. 88-2399
by a federal actor (Bivens). No wonder the only two courts
of appeals that have addressed questions concerning limi-
tations 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); McSure-
ly v. Hutchison, 823 F.2d 1002, 1004-05 (6th Cir. 1987).
When the defendant is a state actor, §1983 and direct liti-
gation may be interchangeable, 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 provided the longer period, recreating the
uncertainty that the Supreme Court sought to eliminate.
We conclude, therefore, that there should be a single pe-
riod of limitations for all suits in which the Constitution
supplies the remedy.
Harmonizing the ‘‘direct” suit with the §1983 suit re-
quires us to go the rest of the way vith Wilson v. Gar-
cia. The Supreme Court applied the period for personal
injuries 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
seg jurisdiction. “{I}f the federal claims are dismissed
efore trial, even though not insubstantial in a jurisdic-
tional sense, the state claims should be dismissed as well.”
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
The district court did not dismiss them but resolved them
A-16
No. 88-2399 13
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 qualified
in practice. See Rosado v. Wyman, 397 U.S. 397, 404-05
(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,
Inc. v. Major League Baseball Players’ Ass’n, 805 F.2d
663, 682 (7th Cir. 1986), we recognize that courts some-
times ought to dispose of everything at once, that prompt
resolution 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. Mech-
met 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 defen-
dants contended, and the district court held in reliance
on Luedtke, that federal law preempts any claims other-
wise 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, Ine., 411 U.S. 624 (1973)], the defendants may
not, to the extent they comply with such federal laws and
regulations, be charged with negligence or creating a nui-
sance. Similarly, §114.04 of the Wisconsin Statutes can-
not be invoked to make unlawful flights which are in ac-
cordance with federal laws and regulations. . . . To the
extent that the County may be violating the federal laws
or regulations, the plaintiffs should . . . exhaust their ad-
A-17
14 No. 88-2399
ministrative remedies.” 521 F.2d at 391. Since Luedtke
every court that 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, 603 P.2d 1329, 1336 (1979), cert. denied, 449 U.S. 820
(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, 705 P.2d 866 (1985); Ursin v.
New Orleans Aviation Board, 506 So. 2d 947, 955 (La.
App. 5th Cir.. 1987). The Solicitor General, in a brief filed
at the Supreme Court’s invit: tion in Greater Westchester,
informed the Court that Ly: ‘ke had been decided incor-
rectly but that because Lue ke stood alone the conflict
did not require resolution.
We must decide whether to maintain a go-it-alone posi-
tion. Three things persuade us that Luedtke is incorrect
and that we should fess up to the error.
1. Preemption of state law depends on either a compre.
hensive federal regimen (“occupation of the field’’), usually
established by express statutory declaration, or a clash
between state and federal norms (a fight that the federal
rules win under the Supremacy Clause). Silkwood v. Kerr-
McGee Corp., 464 us. 238, 248 (1984). See also, e.g.,
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-99
(1984) (collecting cases); Louisiana Public Service Comm'n
v. FCC, 476 U.S. 355 (1986); CTS Corp. v. Dynamics Corp.,
107 S. Ct. 1637 (1987). The Federal Aviation Act does not
expressly preempt state damages remedies. To the con-
trary, §1106 of the Federal Aviation Act, 49 U.S.C. App.
§1506, provides that “{nJothing contained in this chapter
shall in any way abridge or alter the remedies now ex-
isting at common law or by statute, but the provisions
S$ Bryski v. City of Chicago, 148 Ill. App. 3d 556, 499 N.E.2d 162
(2d Dist. 1986), finds state claims preempted on the authority of
Luedtke.
A-18
No. 88-2399 15
of this chapter are in addition to such remedies.” Luedtke
did not mention this anti-preemption statute. Statutes of this
sort save common law remedies even when federal law
exclusively determines the content of substantive rules.
International Paper Co. v. Ouelette, 479 U.S. 481, 497-98
(1987); Brown v. Hotel Employees, 468 U.S. 491, 505-07
(1984). Section 1106 is no exception. Nader v. Allegheny
Airlines, Inc., 426 U.S. 290, 298-300 (1976), holds that
§1106 preserves against preemption a claim for fraudulent
misrepresentation in selling tickets for air travel. State
courts award compensation for takings in inverse condem-
nation cases, although if there is complete federal preemp-
tion 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 avail-
able for takings, and common law remedies are available
on questions of fraud and safety, why not on questions
of noise and chemical emissions?
2. Burbank, on which we relied in Luedtke, was a dif-
ferent 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, in-
terfering with the Federal Aviation Administration’s con-
trary judgment. The Supreme Court distinguished in Bur-
bank between the state’s role as a regulator and its role
as a proprietor of —_ observing that it was not ques-
tioning the ability of a governmental body to determine
how it would run its own airports. 411 U.S. at 635-36 &
n.14. It stepped back from this issue because both reports
on the statute establishing federal noise rules stated ex-
pressly that local governments could set their own stan-
dards 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).
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
A-19
16 No. 88-2399
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 Au-
thority of New York, 558 F.2d 75 (2d Cir. 1977) (exclu-
sion of Concorde). 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, deter-
mines how Illinois apportions its governmental powers.
Whalen v. United States, 445 U.S. 684, 689 n.4 (1980);
Mayor of Philadelphia v. Educational Equality League,
415 U.S. 605, 615 n.13 (1974); Highland Farms Dairy, Inc.
v. Agnew, 300 U.S. 608, 612 (1937); Prentis v. Atlantic
Coast Line Co., 211 U.S. 210, 225 (1908); Dreyer v. [li-
nois, 187 U.S. 71, 83-84 (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 busi-
ness. The federal role is limited to defining the powers
of 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 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 damages, not regula-
tion. Perhaps this is a distinction without a difference.
An award of damages is compensatory from Bieneman’s
ie oy but from O’Hare’s it is no different from
regulation. 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 ex-
press substantive rule would lead them to desist. Damages
for disobeying an acknowledged rule discourage that dis-
obedience 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 non-
A-20
No. 88-2399 17
compliance. It is hard (and costly) to determine facts, and
the errors inevitable in litigation may discourage beneficial
conduct. So too, excessive awards might discourage con-
duct that is questionable under existing rules but bene-
ficial on balance (and therefore goes unchallenged by the
agency with control of the substantive doctrines).
The identity of common law damages and penalties for
disobedience to substantive rules could lead to a conclu-
sion that where a state is forbidden to alter the substan-
tive rule, it is forbidden to award damages. Silkwood v.
Kerr-McGee rejects this equation, however. The Court
held in Pacific Gas & Electric Co. v. State Energy Con-
servation & Development Comm’n, 461 U.S. 190 (1983),
that federal law occupies the field of nuclear safety regula-
tion. Notwithstanding the argument (indeed the truism)
that an award of hefty compensatory and punitive dam-
ages 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 reluctance of the modern Court to find preemp-
tion.” Ronald D. Rotunda, Sheathing the Sword of Federal
Preemption, 5 Constitutional Commentary 311, 317 (1988).
If no preemption 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
law remedies for airport noise and pollution have been
preempted by federal law.®
* Because this opinion overrules a portion of the decision in Lued-
tke, it was circulated to all judges in regular active service under
Circuit Rule 40(f). No judge requested that the case be heard en
bane.
eo
A-21
18 No. 88-2399
A word on what this means. Bieneman wants common
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.F.R. Part 36 (noise characteristics
of aircraft), Part 150 (noise abatement procedures at air-
ports). A state court could not award damages against
O’Hare or its users for conduct required by these regula-
tions, or for not engaging in noise-abatement procedures
that the Federal Aviation Administration considered but
rejected as unsafe. Bieneman’s complaint suggests 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 sufficiently steep rate after
takeoff. These subjects are governed 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 fed-
eral norms do not govern. Perhaps, as Bieneman insists,
the airport does not use adequate noise baffles around the
perimeter of the airport, or perhaps it has built more run-
_.ways than federal law requires (to the detriment of those
under the new ones), or is out of compliance with the gov-
erning federal rules. The essential point is that the state
may employ damages remedies only to enforce federal re-
quirements (as in Silkwood) 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 there-
fore affirm the district court’s judgment to the extent it
rejects all of Bieneman’s claims under the Constitution,
vacate the judgment to the extent it holds that claims
under state law are preempted, and remand with direc-
tions that the court relinquish jurisdiction under Gibbs,
A-22
No. 88-2399 19
so that Bieneman may pursue his state-law contentions
in state court.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
A-23
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUDGMENT IN A
CIVIL CASE
. DOCKETED
JUNE 28, 1988
CASE NUMBER:
84 C 10388
LAWRENCE C. BIENEMAN i
Vv.
THE CITY OF CHICAGO, ET AL. -
Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and
a decision has been rendered.
IT IS ORDERED AND ADJUDGED
That the court having previously granted defendants’
motion to dismiss on June 8, 1987, the court now denies
plaintiff’s motion for class certification for the reasons
stated in open court. Therefore the cause of action of plain-
tiff is dismissed with prejudice.
Date: June 24, 1988 H. Stuart CUNNINGHAM
Clerk
/s/ WANDA PARKER
(By) Deputy Clerk
A-24
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Minute Order Form
LAWRENCE C. BIENEMAN )
Date: June 24, 1988
v. Case Number 84 C 10388
> The Honorable
THE CITY OF CHICAGO, Harry D. Leinenweber,
Judge Presiding.
ET AL. a
DOCKET ENTRY:
Judgment is entered as follows:
The court having previously granted defendants’ motion to
dismiss on June 8, 1987, the court now denies plaintiff’s
motion for class certification for the reasons stated in open
court.
This case is hereby dismissed with prejudice.
Docketing to mail notices.
Mail AO 450 form.
Courtroom deputy’s initials: WAP
Date received in central Clerk’s Office: June 28, 1988
Date Docketed: June 28, 1988
Document # 139
A-25
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAWRENCE C. BIENEMAN, ) Docket No. 84 C 10388
Plaintiff,
vs. 88-2399
THE CITY OF CHICAGO, et al.,
Defendants. Docket No. 85 C 10295
\
DELBERT M. BIDDISON, Chicago, Illinois
Plaintiff, | June 24, 1988
vs 9:00 O’Clock A.M.
THE CITY OF CHICAGO, et al., |
Defendants. a
TRANSCRIPT OF PROCEEDINGS BEFORE
THE HONORABLE HARRY D. LEINEWEBER
APPEARANCES:
For the Plaintiff: Mr. JOSEPH V. KARAGANIS
(Messrs. Karaganis & White Ltd.
414 North Orleans, Suite 810
Chicago, Illinois 60610)
For the Defendants: Mr. MICHAEL M. Conway
(Messrs. Hopkins & Sutter
Three First National Plaza
Chicago, Illinois 60602)
Mr. CALVIN P. SAWYIER
(Messrs. Winston & Strawn
One First National Plaza
Chicago, Illinois 60602)
A-26
Court Reporter:
JAMES W. CHEEK
Official Reporter
United States District Court
219 S. Dearborn St. - Rm. 1714
Chicago, Illinois 60604
Docketed July 11, 1988
Filed August 3, 1988
Thomas F. Strubbe
Clerk
A-27
THE CLERK: 84 C 10388, Biedeman [sic] vs. City of
Chicago and 85 C 10295, Biddison vs. City of Chicago.
THE COURT: This cause is before the court on the
motion of plaintiffs for class certification on certain legal
issues in the case of Biedeman [sic] vs. City of Chicago and
the case of Biddison vs. the City of Chicago, which has
previously been ordered related.
Plaintiffs filed these actions in their own behalf and
behalf of all persons similarly situated for personal injuries
and property damages resulting from noise and air pollu-
tion emanating from O’Hare International Airport. The
case was originally assigned to Judge Duff, who decided the
Bieneman case on motion, dismissing plaintiff’s complaint
on June 8th, 1987. Judge Duff had not made a determina-
tion as to whether the case might be maintained as a class
action. Judge Duff’s decision was appealed and the Sev-
enth Circuit held that until the district court determined
whether the case might proceed as a class action the order
of Judge Duff was not final and appealable. Plaintiff filed
the present motion on February 3rd, 1988, and this case
was subsequently reassigned to this court.
The proposed class consists of all persons in Cook or
DuPage County, Illinois who reside under or adjacent to
the flight paths of aircraft approaching, departing or cir-
cling O’Hare International Airport. Plaintiff’s subclass A
consists of all persons whose property is so located and who
claim that the City of Chicago, by reason of O’Hare air-
craft operations, has taken an aviation easement in their
property without compensation, in violation of the Fifth
Amendment.
Plaintiff’s proposed Subclass B consists of all per-
sons who merely reside in such location and who claim
that Chicago, by reason of O’Hare aircraft operations, has
caused them injury to their person or to their personal or
real property and who wish to pursue tort damage reme-
dies provided by state law.
A-28
An action may be maintained as a class action under
rule 23 only if the prerequisites of both Section (a) and one
of the subsections of Section (b) are met. The parties have
addressed their arguments to each subsection of (b) of Rule
23; the Court will do likewise.
Under Rule 23(b)(1)(A) a class should be certified only
if there is a danger of establishing incompatible standards
of conduct for the party opposing the class.
Although plaintiff seeks some declaratory and injunc-
tive relief, the primary goal of this lawsuit is for money
damages. The danger of establishing incompatible stan-
dards of conduct is normally not posed by a suit for money
damages. Zimmerman vs. Bell, 800 F. 2d 386 (4th Cir.
1986). Therefore, the proposed class may not be certified
under this section.
There are two situations in which a class should be
certified under Rule 23(b)(1)(B): Where adjudication as to
one member will effectively dispose of the interests of all
class members, and where adjudication as to one member
will substantially impair or impede the other’s ability to
protect their interests. Plaintiff asserts that this case fits
within the second situation.
Here, adjudication of these legal issues by plaintiff will
not preclude other class members fro winning his or her
case except to the extent that the adjudication serves as
precedent. Plaintiff has suggested no reason why the rest
of the proposed class would be foreclosed from suit except
to that extent.
Rule 23(b)(2) applies to cases involving final adjudica-
tive relief or corresponding declaratory relief. Essential
to a claim to this provision is that the case be primarily
one for injunctive relief. Walters vs. Thompson, 615 F.
Supp. 330 (N.D. Ill. 1985) Declaratory relief which has its
primary purpose to provide a foundation for subsequent
claims of damages does not come within this rule. Serafin
vs. Sears, Roebuck & Co. Inc., 446 F. Supp. 611 (N.D. III.
eV
A-29
1978); Evans vs. City of Chicago, 522 F. Supp. 789 (N.D.
Ill. 1986) affirmed in part, vacated in part on other ground,
689 F. 2d 1286 (7th Cir. 1982).
The Court has already found that the primary relief
sought in this case is money damages and not declaratory
or injunctive relief. Accordingly, the proposed class may
not be certified under any provision of Rule 23(b).
The Court also expresses doubt about whether Biene-
man plaintiff, who has already lost at the trial level, could
fairly and adequately represent the class. For the reasons
stated, the motion to certify is denied in both Bieneman
and Biddison vs. City of Chicago, the related case. Accord-
ingly, the Bieneman vs. City of Chicago cause of action,
the last issue having been resolved, is therefore dismissed
with prejudice.
Now we will proceed to summary judgment on —
MR. KARAGANIS: Your Honor, having been bloodied
on this issue, may we request a judgment order from the
Court, a final judgment order from the Court?
THE COURT: That is what I intended to do when I
say, “your cause of action is dismissed with prejudice in
Bieneman.”
MR. KARAGANIS: I am sorry. Joseph Karaganis for
the plaintiff, your Honor.
MR. CONWAY: Good morning, your Honor, Michael
Conway for the City defendants.
MR. SAWYIER: Calvin Sawyier for the airline defen-
dants.
MR. CONWAY: There is a recent Seventh Circuit case
that indicates that the parties are to request the Court to
have an order entered under — I guess it’s Rule 54 —asa
final judgment order.
MR. SAWYIER: An order in writing or perhaps a 54(b)
finding in the Bieneman case might be helpful.
MR. CONWAY: No, we don’t need a finding —
,
A-30
MR. KARAGANIS: You don’t need a 54(b).
MR. SAWYIER: All right, all right.
THE COURT: We will have a final judgment order
entered in the case.
MR. CONWAY: Your Honor, turning to the Biddison
case. Your Honor continued to this morning our motion
to request the plaintiffs to file their responsive brief to the
summary judgment motion which is pending to the only
remaining count, Count III, of the Biddison action. Your
Honor continued that to this morning. We would renew
our request that the plaintiff be directed to file a response.
THE COURT: You expressed a problem with time.
MR. KARAGANIS: Both with time, your Honor, and
we also filed — when we were last here we filed a motion to
compel production of documents which the Court deferred
until its ruling today. We suggested, as a preliminary
matter, that the question of withheld documents needs to
be resolved. We filed our motion. We are prepared to
adhere to a short briefing schedule on that.
We indicated, your Honor, that most of my firm is
going to be on trial in the Southern District of Indiana for
the bulk of the month of July if not all of July and we will
not be getting back until sometime in August. We intend,
upon coming back, once the document issue is resolved, to
request leave of court to take the depositions of the expert
or other witnesses for which affidavits were filed. There
are only two that the City filed, one a Mary Vigilante and
the other a Mr. Butler. Upon taking of those depositions
we would be prepared to file our response.
MR. CONWAY: Well, your Honor, that is all well and
good. It has been two years since we filed our motion.
We We [sic] are glad to refer to the motion to compel as
characterized by counsel. It is really a motion challenging
our assertion privilege document list that we prepared.
That probably should be referred to a magistrate as the
expeditious way to do that.
i
A-31
Your Honor, we would request that this be briefed in
some reasonable time and not just be continued off gener-
ally.
THE COURT: The motion to compel production of doc-
uments will be referred to the magistrate assigned to the
file.
Let’s see. Do we know who has been assigned?
MR. CONWAY: We have never had any dealings with
the magistrate in this matter. So, I honestly don’t know.
THE COURT: This is before the automatic.
THE CLERK: It will be by lot.
THE COURT: It will be referred to the Executive Com-
mittee for re-assignment to a magistrate for purposes of
consideration of plaintiff’s motion to compel production of
documents.
MR. KARAGANIS: Your Honor, if I might suggest,
we would be prepared, subject to our availability of getting
their witnesses for deposition, to file our response 60 days
from the ruling by the magistrate. In other words, if the
magistrate rules against us, we will prepare our response
in 60 days. If the magistrate rules for us and we get the
documents, we will still work within 60 days.
THE COURT: That seems to be pretty long if we are
going to wait for the magistrate to rule.
MR. CONWAY: It does to me.
MR. KARAGANIS: Judge, the documents may be
highly relevant to our response.
THE COURT: I know. I am not saying that. How
about 30 days from the ruling of the magistrate?
MR. KARAGANIS: Judge, it is a question of getting
the depositions of the witnesses.
MR. CONWAY: Why can’t they take the depositions
now and, if there are some further documents that are
produced, they can —
A-32
THE COURT: I will require the plaintiff to respond to
the motion for summary judgment 30 days from the date
of the ruling of the magistrate on the motion to produce.
MR. KARAGANIS: Thank you, Judge.
MR. CONWAY: Your Honor, I have one other sugges-
tion, if I might, on Biddison. Since the class issue, which
your Honor has decided this morning is the same in both
cases, and the seven counts that are dismissed by Judge
Duff are identical, one count remaining, it would seem
appropriate that that class issue be reviewed if plaintiff
intends to raise it on appeal — I don’t know if he does —
together. So, I would request that a 54(b) finding be made
on the seven counts of Biddison, which Judge Duff also
dismissed, so that any appeal on the class in Biddison and
Bieneman and so forth would be handled together.
MR. KARAGANIS: Judge, if I express a certain gun
shyness with respect to the current status of what we have
got to do up in the Seventh Circuit — Bieneman is clean.
The Court has indicated to us that it looks askance on 54(b)
certifications. I just as soon see Bieneman get up and get
decided. It will obviously have an impact on Biddison.
THE COURT: I think, to the extent that Bieneman
will be precedent —
MR. CONWAY: My only concern in that respect, your
Honor, is that while you have ruled on grounds uniform
to both, relating to aspects of Rule 23(b), you have made
the reference in your ruling to Mr. Bieneman’s peculiar _
situation, haviqg [sic] lost all of his case as opposed to sev-
en/eight’s [sic] of his case, as with Mr. Biddison. So, if the
Court of Appeals were to rule on that, perhaps, narrower
ground, then we would have no instruction as to Biddis-
on. So, it is just an effort, your Honor, to have the two
class allegation issues before the Court. On the substan-
tive issues I agree with your Honor because there are car-
bon copy complaints on those seven counts. But it’s the
class issue that is the only potential for a differentiation.
A-33
MR. KARAGANIS: Judge, having had various por-
tions of my figurative anatomy shot off by the Seventh
Circuit when I went up to argue the case on jurisdictional
grounds — the Bieneman case is clean jurisdictional. There
is a final judgment going to be entered by the Court. At
the risk of complicating things —
THE COURT: I am going to decline your request for a
54(b) finding certification.
MR. CONWAY: All right. Very good, your Honor.
Thank you.
MR. KARAGANIS: Thank you, your Honor.
MR. CONWAY: Shall we have another status date,
your Honor, only so we can report back on the progress of
our briefing?
THE COURT: Let’s have a status in about 60 days.
MR. KARAGANIS: Thank you, Judge.
THE CLERK: August the 25th at 9:00 o’clock.
MR. CONWAY: Thank you, your Honor. That status,
of course, will only be in Biddison.
THE COURT: Right. There is nothing left and I will
have lost the jurisdiction in Bieneman.
MR. KARAGANIS: Hopefully, Judge. Thank you.
MR. CONWAY: Thank you, your Honor.
(Which were all the proceedings had in the above-entitled
cause.)
I CERTIFY THE FOREGOING TO BE THE CORRECT
TRANSCRIPT FROM THE RECORD OF PROCEEDINGS
IN THE ABOVE-ENTITLED MATTER.
/s/ James W. Cheek
Official Court Reporter Date: 6-27-88
A-34
United States Court of Appeals
For the Seventh Circuit
219 South Dearborn Street
Chicago, Illinois 60604
Date: February 26, 1988
Thomas F. Strubbe
Clerk
312-435-5850
Mr. H. Stuart Cunningham, Clerk
United States District Court
219 South Dearborn Street
Chicago, Illinois 60604
“
Re: LAWRENCE C. BIENEMAN,
on his own behalf and on
nd US.C.A. -
behalf of all persons No. pogo
similarly situated,
Plaintiff-Appellant, \ bag cg apes
oO.
= vs.
Judge
THE CITY OF CHICAGO, et Brian Barnett Duff
al.,
Defendants-Appellees.
Dear Clerk:
Herewith is the mandate of this Court in the above-
entitled appeal. “A certified copy of the judgment and a
copy of the opinion of the Court, if any, and any direc-
“tion as to costs shall constitute the mandate.” (F.R.A.P.
41(a)). I am also returning the original record of your Dis-
trict Court, which was transmitted to this office for use on
appeal. Please acknowledge receipt on the enclosed copy of
this letter.
A-35
Contents of Record Being Returned Later:
Contents of Record being Returned:
3 Vols. Pleadings
Exhibits to item No. 25
/s/ MABEL L. BOBER
U.S.C.A. Deputy Clerk
Copies Mailed To:
JOSEPH V. KARAGANIS JUDSON H. MINER
KARAGANIS & WHITE LTD. Office of Corporation Counsel
414 North Orleans Street 610 City Hall
Suite 810 Chicago, Illinois 60602
Chicago, Illinois 60610
CALVIN SAWYIER
MICHAEL M. CONWAY WINSTON & STRAWN
Hopkins & SUTTER One First National Plaza
Three First National Plaza Chicago, Illinois 60603
Chicago, Illinois 60602
MarK E. JONES
180 North LaSalle Street
Suite 801
Chicago, Illinois 60601
NOTE TO COUNSEL:
If any physical and large documentary exhibits have been filed in
the above-entitled cause, they are to be withdrawn ten days from the
date of this notice. Exhibits not withdrawn during this period will be
disposed of.
a
A-36
JUDGMENT —- ORAL ARGUMENT
United States Court of Appeals
For the Seventh Circuit
219 South Dearborn Street
Chicago, Illinois 60604
February 3, 1988
Before
Hon. RIcHarp A. Posner, Circuit Judge
Hon. JOHN L. CorFey, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
LAWRENCE C. BIENEMAN, >
. Appeal from the
on his own behalf and on United States District
behalf of all persons Court for the Northern
similarly situated, District of Ilinois,
Plaintiff-Appellant, Eastern Division
No. 87-2077 vs. No. 84 C 10388
CITY OF CHICAGO, et al., The Honorable
Brian Barnett Duff,
Defendants-Appellees. Judge Presiding.
|
)
This cause was heard on the record from the United
States District Court for the Northern District of Illinois,
Eastern Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment of the said
District Court in this cause appealed from be, and the same
is hereby, DISMISSED for want of jurisdiction, with no
costs in this Court, in accordance with the opinion of this
Court filed this date.
3n the
United States Court of Appeals
For the Seventh Circuit
No. 87-2077
LAWRENCE C. BIENEMAN, on his own behalf and on behalf
of all persons similarly situated,
Plaintiff-A ppellant,
City OF CHICAGO, et al.,
Defendants- Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 8 C 10388—Brian Barnett Duff, Judge.
ARGUED JANUARY 6, 1988—DecIDED FEBRUARY 3, 1988
Before PosNER, COFFEY, and EASTERBROOK, Circuit
Judges.
PER CurRIAM. Lawrence Bieneman filed this case on
behalf of a class of other people similarly affected by noise
from O’Hare Airport. Fed. R. Civ. P. 23(cX1) requires a
district court to decide “{aJs soon as practicable after the
commencement of [the] action” whether it may be main-
tained on behalf of a class. Some three years went by,
and the district judge was ready to rule on the merits.
He dealt with the class aspect of the complaint this way,
662 F. Supp. 1297, 1298 n.1 (N.D. Ill. 1987).
EE ———EeoO
A-38
2 No. 87-2077
(No party [to this case or a companion suit) 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 ac-
tion 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.
The motions at hand were filed under Rule 12(bX6), seek-
ing dismissal for failure to state a claim on which relief
may be granted. The court granted the motions, and the
clerk inserted this language in the printed form used for
final judgments:
IT IS ORDERED AND ADJUDGED that Counts
I, II, IV, V, VI, VII, and VIII are dismissed Count
III is also dismissed.
Bieneman immediately filed a notice of appeal, which we
must dismiss for want of jurisdiction.
An order dismissing a “complaint” as opposed to a
“case” ordinarily is not a final judgment, jamin v.
United States, 833 F.2d 669 (7th Cir. 1987), because the
plaintiff may file an amended complaint. The theories on
which the district court dismissed Bieneman’s complaint
preclude amendment, but the court’s remarks show that
it nonetheless believes there is more to do. It must decide
whether to certify the case as a class action—no small
matter, because this determines whether the judgment
governs everyone who lives near O’Hare Airport or only
Mr. Bieneman. A document identifying 2 defect in the
complaint, without stating who is bound by the decision,
is not a final judgment. Glidden v. Chromalloy American
Corp., 808 F.2d 621 (7th Cir. 1986).
Glidden is strikingly similar to our case. The district
court in Glidden granted judgment for defendants while
A-39
No. 87-2077 3
reserving decision on the request to certify a class. The
judge indicated that he would turn to this subject after
the completion of the appeal on the merits. This reserva-
tion, we concluded, meant that the case was not over in
the district court, making appeal impossible. The district
court must complete its handling of the case before the
judgment is “final” under 28 U.S.C. §1291. Here, as in
Glidden, the district judge has flagged the class aspect
of the case for future decision.
In a series of cases since Glidden, we have held that
when the court overlooks the class allegation, a judgment
dealing with the representative’s claim alone is final be-
cause the district court has done ss it plans to
do. Gomez v. Illinois State Board of Education, 811 F.2d
1030, 1034 n.1 (7th Cir. 1987), Clift v. United Auto Work-
ers, 818 F.2d 623, 626 (7th Cir. 1987), Bennett v. Tucker,
827 F.2d 63, 67 (7th Cir. 1987), Lorance v. AT&T Tech-
nologies, Inc., 827 F.2d 163, 165 n.1 (7th Cir. 1987); Hickey
v. Duffy, 827 F.2d 234, 238 (7th Cir. 1887). Bieneman’s
‘ease has not ended, however, given the district judge’s
express identification of this issue as one needing resolu-
tion. Why none of the parties responded to the district
court’s invitation with a motion is beyond us—the district
court even cited Glidden for the parties’ edification—but
none did, so the case is alive in the district court.
The district court’s discussion might be read as saying
that until some party makes a motion for class certifica-
tion the court need not rule. On this view, failure to re
quest certification amends the complaint to delete the
claim on the class’s behalf. We rejected a similar posi-
tion in Glidden, however. 808 F.2d at 623-24. If a com-
plaint includes a class allegation, the district court must
address it, no matter what the parties later do. Other-
wise the plaintiff could withdraw as representative uni-
laterally, or the parties could settle the case without the
court’s permission. Rule 23(e) forbids either course. If the
complaint depicts the plaintiff as representative of a class,
the district court must deal with the subject even if no
one asks.
A-40
4 No. 87-2077
Rule 23(cX1) says that that decision must come “as soon
as practicable”. Sometimes the class issues may be so in-
tertwined with the merits (or the wisdom of a settlement)
that they should be handled together. Cf. Mars Steel
Corp. v. Continental Illinois National Bank, 834 F.2d
677, 680-82 (7th Cir. 1987). But the propriety of class cer-
tification does not depend on the outcome of the suit, see
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-78 (1974),
and one reason for early certification is to identify the
stakes of the case so that the parties may choose their
litigation strategies accordingly. After even a tentative
decision on the merits, incentives are different. Indeed,
a class representative who has lost on the merits may
have a duty to the class to oppose certification, to avoid
the preclusive effect of the ju nt, while the defendants
suddenly want the certification that ys | might have op-
posed at the outset. It is therefore difficult to —
cases in which it is appropriate to defer class certifica-
tion until after decision on the merits. See Premier Elec-
trical Construction Corp. v. National Electrical Contrac-
tors Ass’n, Inc., 814 F.2d 358, 363 (7th Cir. 1987); Fin-
berg v. Sullivan, 634 F.2d 50, 64 (8d Cir. 1980) (en banc).
Cf. Watkins v. Blinzinger, 789 F.2d 474, 475 n.3 (7th Cir.
1986). But cf. Floyd v. Bowen, 833 F.2d 529, 534-35 (5th
Cir. 1987). Certainly this is not one. When the district
judge (to whom this case was transferred some two years
after its filing) recognized that there was an unresolved
class allegation, he should have requested the views of
the parties and postponed decision of the merits. Omis-
— = do this does not dispose of the class allegation by
efault.
Glidden _—- this case, and the appeal is dismissed
for want of jurisdiction. After the district judge has dealt
one way or the other with the class aspect of the com-
plaint, any fresh appeal will be resubmitted to this panel.
Counsel should advise the court promptly, after filing a
new notice of appeal, whether they wish to use the orig-
inal briefs or betieve that supplemental submissions are
necessary. If any party objects to the decision concern-
A-41
No. 87-2077 5
ing the class, the court will set a schedule for briefs ad-
dressing that issue. No costs.
A true Copy:
Teste:
Appeals for the Seventh Circuit
A-42
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BIENEMAN
JUDGMENT IN A CIVIL CASE
¥, DOCKETED JULY 23, 1987
CASE NUMBER: 84 C 10388
CITY OF CHICAGO
Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and
a decision has been rendered.
IT IS ORDERED AND ADJUDGED that Counts I, II, IV,
V, VI, VII, and VIII are dismissed. Count III is also dis-
missed.
July 21, 1987
nunc pro tunc June 8, 1987 H. STUART CUNNINGHAM
Date Clerk
CLAUDIA M. FLaG
(By) Deputy Clerk
A-43
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Minute Order Form
‘)
BIENEMAN Date: June 21, 1987
nunc pro tunc
June 8, 1987
v. CASE NUMBER: 84 C 10388
The Honorable
CITY OF CHICAGO Face Barnett Duff,
udge Presiding.
DOCKET ENTRY:
Judgment is entered as follows:
Counts I, II, IV, V, VI, VII, and VIII are dismissed. Count
III is also dismissed.
Mail AO 450 form.
Courtroom deputy’s initials: CMF
Date received in central Clerk’s Office: July 23, 1987
Date Docketed: July 23, 1987
Document # 111
A-44
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Minute Order Form
BIENEMAN ;
Vv. CASE NUMBER: 84 C 10388
CITY OF CHICAGO Date: June 8, 1987
The Honorable
P Brian Barnett Duff,
Judge Presiding.
BIDDISON
v. 85 C 10295
CITY OF CHICAGO
DOCKET ENTRY:
Other docket entry:
Counts I, II, IV, V, VI, VII, and VIII of Bieneman v. City
of Chicago, Case No. 84 C 10388, and Biddison v. City
of Chicago, No. 85 C 10295, are dismissed. Count III of
Bieneman also is dismissed. ENTER MEMORANDUM
OPINION.
For further detail see order attached to the original minute
order form.
Docketing to mail notices.
Courtroom deputy’s initials: CMF
Date received in central Clerk’s Office: June 9, 1987
Date Docketed: June 9, 1987
A-45
UNITED STATES DISTRICT COURT
NORTHRN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAWRENCE C. BIENEMAN,
on his own behalf and on
behalf of all persons
similarly situated,
Plaintiffs,
Vv
THE CITY OF CHICAGO, et
al., No. 84 C 10388
Defendants.
DELBERT M. BIDDISON, on
his own behalf and on behalf
of all persons similarly No. 85 C 10295
situated,
Plaintiffs,
v.
THE CITY OF CHICAGO, et
al.,
Defendants.
MEMORANDUM OPINION
Lawrence Bieneman and Delbert Biddison own homes
near O’Hare International Airport and claim various
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 sev-
eral airlines, seeking relief both on his own behalf and on
behalf of “all persons who own, use or reside in residen-
tial 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
A-46
circling O’Hare International Airport.” Bieneman v. City
of Chicago, No. 84 C 10388; Biddison v. City of Chicago,
No. 85 C 10295. The two cases have been found related,
and come before the court today on defendants’ motion 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 offi-
cial capacity as acting Commissioner of the Department
of Aviation of the City of Chicago (collectively, “the City
defendants”), and seven companies providing air passen-
ger service at O’Hare: American Airlines, Inc.; Delta Air-
lines, Inc.; Northwest Airlines, Inc.; Ozark Airlines, Inc.;
Trans World Airlines, Inc.; United Air Lines, Inc.; and
USAirlines, Inc. (collectively, “the airline defendants”).
Count I of each First Amended Complaint accuses the
City defendants of maintaining an official policy that has
deprived plaintiffs of their Fourteenth Amendment rights
to life, liberty, and property in violation of 42 U.S.C. Sec-
tion 1983. Count II accuses the airline defendants of acting
under color of state law as co-conspirators with the City to
1 Rule 23(c)(1) of the Federal Rules of Civil Procedure provides
that “[a]s soon as practicable after the commencement of an
action brought as class action, the court shall determine by order
whether it is to be so maintained.” Althoug the Seventh Circuit
has emphasized the improtance of compliance whith this require-
ment, see, eg., 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 determination without the participation of
counsel. Presumably some party will raise the issue in the near
future. Since the staus of these cases as class actons is irrele-
vant to the morions before the court today, the court proceeds to
address the merits of those motions.
A-47
deprive plaintiffs of their Fourteenth Amendment rights in
violation of Section 1983. Count III is an inverse condem-
nation 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 fed-
eral 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 VII 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 Biene-
man and Biddison cases, the court now has before it a sin-
gle set of briefs addressing the merits of Counts I, III, 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 examines each count in turn.
Counts I and II
Counts I and II of the First Amended Com-
plaints restate claims that Judge Decker dismissed from
Bieneman’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 these counts. See
London v. Coopers & Lybrand, 644 F. 2d 811, 814 (9th Cir.
= . ) :
A-48
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 (5th 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 preserve
those claims for appeal; in this case plaintiffs have chose
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 structures 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, con-
demned, taken and made useless by Defendant City of
Chicago without due process and without compensation 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 Section 1983 — Count
III 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 Sec-
tion 1983.
A-49
The Supreme Court did imply a cause of action aris-
ing directly under the Constitution in Bivens v. Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), where a
Court held that victims of constitutional violations by fed-
eral 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 con-
siderable 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 circumstances where no alternative
statutory remedy exists. See, e.g., Morris v. Washington
Metropolitan Area Transit Authority, 702 F. 2d 1037, 1042
n. 10 (D.C. Cir. 1983). ae
Since the Supreme Court’s decision in Monell v.
Department of Social Services, 436 U.S. 658 (1978), it has
been clear that Section 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
governments. As one court in this district has concluded,
“Congress intended Section 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 nonfed-
eral defendants. 702 F.2d at 1042 n. 10. In view of the
A-50
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 Section 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 authcrity, hold-
ing in a footnote that “[blecause an alleged ‘taking’ in vio-
lation of the fifth and fourteenth amendments presents a
serious constitutional question, a direct cause of 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 condemna-
tion actions against municipalities on the ground that no
remedy was available under Section 1983. In light of Mon-
ell 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 Section 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. Lehplamer,
787 F. 2d 1141 (7th Cir. 1986). Because Bieneman’s cause
of action under Section 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 dis-
missed.
A-51
Counts IV and V
The City raises two arguments against Counts IV and
V, which allege the torts of nuisance and assault and bat-
tery: 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.
As the City points out, Lwuedtke 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 consis-
tently with federal laws 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 deci-
sion in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).
Silkwood 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 feder-
ally 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 determi-
nation that the existence of state remedies would neither
frustrate the objectives of federal law nor create an irrec-
oncilable conflict between state and federal standards. 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 air-
port proprietors and airlines complying with federal law.
Neither Luedtke nor the Supreme Court decision on which
A-52
Luedtke relied, City of Burbank v. Lockheed Air Termi-
nal, Inc., 411 U.S. 624 (1973) (pervasive nature of scheme
of federal regulation of aircraft noise preempts local ordi-
nance limiting hours of takeoffs by jet aircraft), finds any
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. Silkwood’s
conclusion that federal law does not preempt state tort
actions in the area of nuclear safety does nothing to under-
mine 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 Cir-
cuit, this court must follow it. Counts IV and V are dis-
missed because they assert state tort claims preempted by
federal law. It is unnecessary to address the City’s alter-
native 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 inverse condem-
nation 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. Lwuedtke v. County of
Milwaukee, 521 F. 2d at 391. Lwuedtke and Griggs v.
Allegheny County, 369 U.S. 84, 89 (1962) foreclose plain-
tiffs’ 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.
Count VII
In Count VII plaintiffs request a declaratory judgment
that federal law does not preempt their state tort claims
A-53
against the City. Count VII is superfluous and an inap-
propriate 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 declaration 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 dismissed 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, No. 85 C 10295, are dismissed. Count III of
Bieneman also is dismissed.
ENTER:
/s/ BRIAN BARNETT DUFF
Brian Barnett Duff, Judge
UNITED STATES DISTRICT COURT
DATE: June 8, 1987
A-54
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAWRENCE C. BIENEMAN, )
on his own behalf and on
behalf of all persons simi-
larly situated,
Plaintiff,
v.
THE CITY OF CHICAGO;
HAROLD WASHINGTON ,
in his official capacity as a ee
° : . 0.
pre notion oy he egret Honorable Brian Duff
official capacity as acting
Commissioner of the Depart- P FIRST
ment of Aviation of the AMENDED COMPLAINT
City of Chicago; AMERICAN PLAINTIFF DEMANDS
AIRLINES, INC.; DELTA TRIAL BY JURY
AIRLINES, INC.; NORTH-
WEST AIRLINES, INC.;
OZARK AIRLINES, INC.;
TRANS WORLD AIRLINES,
INC.; UNITED AIR LINES,
INC.; and, USAIRLINES,
INC.,
Defendants-Appellees.
COUNT I
Defendants’ Deprivation Of Rights
Protected By The Constitution
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, by his attorneys, and complaining of Defendants
CITY OF CHICAGO, HAROLD WASHINGTON, in his
A-55
official capacity as Mayor of the City of Chicago, and
JEROME R. BUTLER, in his official capacity as acting
Commissioner of the Department of Aviation of the City
of Chicago, alleges as follows:
JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pur-
suant to 28 U.S.C. Section 1331 and 28 U.S.C. Section 1343.
The federal claims in this case arise under and are based
upon the following constitutional provisions and laws of
the United States:
a. The Fourteenth Amendment to the United States
Constitution.
b. 42 U.S.C. Section 1983, which provides a claim
for relief against any person acting under color of
state law, individually, or in concert with others,
to deprive plaintiffs of rights guaranteed by the
Constitution and laws of the United States.
2. This Court’s jurisdiction over the Plaintiff’s state
law claims is founded upon the doctrine of pendent juris-
diction. The state law claims arise out of the same common
nucleus of operative facts as do the federal claims.
3. Venue is proper in this district under the provi-
sions of 28 U.S.C. Sections 1391(b) and 1391(c). All of the
causes of action arise in this district, and all of the Defen-
dants do business in this district.
PARTIES
4. Plaintiff LAWRENCE C. BIENEMAN is a citi-
zen, resident and owner of real property used for residen-
tial purposes located at 15 West Wood in the Village of
Bensenville, DuPage County, Illinois. Mr. Bieneman pur-
chased the aforesaid property in 1967.
——————————————
A-56
5. Defendant CITY OF CHICAGO is a municipal cor-
poration organized and existing under the laws of the State
of Illinois and has its principal place of business in Cook
County, Illinois.
6. Defendant HAROLD WASHINGTON is the duly
elected Mayor of the City of Chicago.
7. Defendant JEROME R. BUTLER is the duly
appointed acting Commissioner of the Department of Avi-
ation of the City of Chicago.
8. Defendant AMERICAN AIRLINES, INC. is a cor-
poration organized and existing under the laws of the State
of Delaware, and is engaged, inter alia, in the business
of carrying passengers for hire by airplane to and from
O’Hare International Airport in Cook County and DuPage
County, Illinois.
9. Defendant DELTA AIRLINES, INC. is a corpora-
tion organized and existing under the laws of the State of
Delaware, and is engaged, inter alia, in the business of car-
rying passengers for hire by airplane to and from O’Hare
International Airport in Cook County and DuPage County,
Illinois.
10. Defendant NORTHWEST AIRLINES, INC. is a
corporation organized and existing under the laws of the
State of Minnesota, and is engaged, inter alia, in the busi-
ness of carrying passengers for hire by airplane to and from
O’Hare International Airport in Cook County and DuPage
County, Illinois.
11. Defendant OZARK AIRLINES, INC. is a corpora-
tion or ganized and existing under the laws of the State of
Delaware, and is engaged, inter alia, in the business of car-
rying passengers for hire by airplane to and from O’Hare
International Airport in Cook County and DuPage County,
Illinois.
12. Defendant TRANS WORLD AIRLINES, INC. is
a corporation organized and existing under the laws of
A-57
the State of Delaware, and is engaged, inter alia, in the
business of carying rying passengers for hire by airplane
to and from O’Hare International Airport in Cook County
and DuPage County, Illinois.
13. Defendant UNITED AIR LINES, INC. is a corpo-
ration organized and existing under the laws of the State
of-Delaware, and is engaged, inter alia, in the business
of carryying passengers for hire by airplane to and from
O’Hare International Airport in Cook County and DuPage
County, Illinois.
14. Defendant USAIRLINES, INC. is a corporation
organized and existing under the laws of the State of
Delaware, and is engaged, inter alia, in the business of car-
rying passengers for hire by airplane to and from O’Hare
International Airport in Cook County and DuPage County,
Illinois.
CLASS ACTION ALLEGATIONS
15. Plaintiff LAWRENCE C. BIENEMAN brings
this action on his own behalf and as a class action pursuant
to Rule 23 of the Federal Rules of Civil Procedure.
16. The plaintiff class consists of all persons who
own, use and 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 air-
craft approaching, departing or circling O’Hare Interna-
tional Airport. (The individual plaintiff and the plaintiff
class are referred to hereafter collectively as “Plaintiffs”).
a. There are several hundred thousand members of
the plaintiff class, thereby making joinder of all
its members impossible.
b. There are questions of both law and fact common
to the entire plaintiff class. Specifically, the legal
bases of the complaint are identical as to each
member of the class, and the unlawful conduct of
is
A-58
the Defendants was committed on grounds gener-
ally applicable to the class as a whole. In addition,
common elements of relief are sought.
The claims of Plaintiff LAWRENCE C.
BIENEMAN, as a representative party, are typ-
ical; and the legal bases of the claims are iden-
tical to the claims of the entire plaintiff class.
Plaintiff LAWRENCE C. BIENEMAN, will fairly
and adequately represent and protect the interests
of the plaintiff class.
17. This action is maintainable as a class action for
each of the following reasons:
a.
Prosecution of separate actions by individual mem-
bers of the class would create a risk of inconsistent
and varying adjudications with respect to the same
conduct by Defendants, and would establish a risk
of incompatible and inconsistent standards of con-
duct for the Defendants.
Prosecution of separate actions by iadividual mem-
bers of the class would, if successful, be dispositive
of the claims of the other members, because Defen-
dants conduct would be declared unlawful, Defen-
dants would be enjoined from violating the rights
of class members and money damages would be
recovered. If unsuccessful, prosecution of separate
actions would substantially impair the ability of
other members of the class to protect their inter-
ests.
Defendants have acted and refused to act on
grounds generally applicable to the plaintiff class,
thereby making appropriate final injunctive relief
and corresponding relief with respect to the class
as a whole.
The common questions of law and fact that exist
A-59
as to all members of the plaintiff class predomi-
nate over any questions solely affecting individual
members of the class. A class action is superior to
other available means for fair and efficient adjudi-
cation of this controversy.
DEFENDANTS’ WRONGFUL CONDUCT
18. Defendant CITY OF CHICAGO owns, controls,
operates and is proprietor of O’Hare International Airport,
which is situated in both Cook County and DuPage County,
Illinois.
19. It has been and continues to be the official pol-
icy and practice of Defendant City of Chicago to operate,
manage, develop and expand O’Hare International Airport,
under color of state law, in a manner that intentionally
injures Plaintiffs and deprives them of their substantive
constitutional rights to life, liberty and property that are
guaranteed by the Fourteenth Amendment to the United
States Constitution.
20. It has been and continues to be the official policy
and practice of Defendant City of Chicago — duly authorized
by Defendant Harold Washington, in his official capacity
as Mayor, and duly implemented by Defendant Jerome
R. Butler and his predecessor in office, Thomas Kapsalis,
in their official capacity as Commissioner of the Depart-
ment of Aviation — to operate, manage, develop and expand
O’Hare International Airport as follows:
a. to put as many aircraft operations as possible
through the airport with the full knowledge and
intention that increases in aircraft operations
increase the noise, vibrations, and air pollution
impacting Plaintiffs and thereby injures Plaintiffs
in their persons and property;
b. to fail to implement alternatives to increased air-
craft operations that would not cause injury to
A-60
Plaintiffs in their persons and property;
to fail to implement mitigating measures that
would reduce the injury to Plaintiffs in their per-
sons and property resulting from noise, vibration
and air pollution.
21. As a direct and proximate result of the offi-
cial authorized policy and practices of Defendant City of
Chicago, Plaintiffs have been intentionally pounded with
excessive levels of noise and vibration, and have been inun-
dated with air pollution by aircraft approaching, depart-
ing or circling O’Hare International Airport; and Plaintiffs
have been injured and deprived of their substantive liberty
and property interests protected by the Constitution in one
or more of the following manners:
a.
Plaintiffs have sustained physical injuries, includ-
ing but not limited to headaches, nausea from nox-
ious fumes and odors, other interferences with the
senses, loss of sleep, fatigue, and pain and suffer-
ing;
Plaintiffs have sustained severe mental and emo-
tional distress that has further damaged their
physical health, including but not limited to stress,
anxiety, nervousness, annoyance, strain, irritabil-
ity, worry and fear for the safety of themselves and
their family members;
Plaintiffs have sustained physical damage to the
residential real property which they own, reside
in and use, including but not limited to continued
shaking and vibration of the structure, objects, and
appliances and broken windows;
Plaintiffs have sustained damage from a substan-
tial loss of the use and peaceful enjoyment of their
property, including but not limited to interfer-
ence with speech among family members and tele-
phone communications, interference with radio,
A-61
stereo, and television communications and enjoy-
ment, interference with the use of their yards
and other out-of-doors portions of their homes, and
difficulties in finding persons willing to purchase
their homes;
e. Plaintiffs have sustained damages by reason of
substantial interference with their ability to oper-
ate their businesses and pursue their livelihood,
their ability to concentrate mental effort, their
ability to study, their ability to perform ordinary
tasks, their ability to pursue their recreational
activities and pursuits, and their personal security
and privacy; and
f. Plaintiffs have been exposed and are continuing to
be exposed to a risk of cancer from the burned and
unburned aircraft fumes.
22. The knowing and intentional infliction of the
above-described injuries on Plaintiffs, as an official autho-
rized policy of Defendant City of Chicago, violates Plain-
tiffs’ substantive rights to life, liberty and property guar-
anteed by the Fourteenth Amendment to the United States
Constitution. The deprivations and violations of Plaintiffs’
constitutional rights and the damage to Plaintiffs by rea-
son of the duly authorized official policy of Defendant City
of Chicago is continuing and occurs on a daily basis.
23. In furtherance of its official policy, Defendant
City of Chicago has, under color of state law, duly autho-
rized and commenced implementation of a $1,500,000,000
expansion of O’Hare International Airport that will
increase annual aircraft operations from 667,000 opera-
tions in 1983 to 920,000 or more operations in 1995, and
to well in excess of 1,000,000 operations in the years
thereafter. Defendant City of Chicago knows and intends
that this substantial increase in operations will drastically
increase the noise, vibrations, and air pollution impacting
Plaintiffs, and will thereby exacerbate Plaintiffs’ past and
A-62
current injuries and cause new and additional injuries and
damage.
24. In furtherance of its official policy, Defendant
City of Chicago has failed and refused to implement alter-
native plans that will not cause injury to Plaintiffs, and
Defendant City of Chicago has failed and refused to imple-
ment mitigating measures that would reduce the potential
injury to Plaintiffs from the expansion.
25. No municipality has the right to intentionally
inflict physical injury on the person and property of indi-
vidual citizens in furtherance of an official policy to max-
imize economic gains. Defendant City of Chicago, Harold
Washington, in his official capacity as Mayor of the City
of Chicago, and Jerome R. Butler, in his official capac-
ity as acting Commissioner of the Department of Avia-
tion of the City of Chicago, are liable to the Plaintiffs for
compensatory damages under 42 U.S.C. Section 1983 for
Defendants’ past and current willful and intentional viola-
tions of Plaintiffs’ substantive constitutional rights. Plain-
tiffs have no adequate remedy at law for the announced
intention of, and steps already taken by Defendant City
of Chicago and its duly authorized representatives to fur-
ther violate Plaintiffs’ substantive constitutional rights
and cause further injury to Plaintiffs.
WHEREFORE, Plaintiff LAWRENCE C. BIENE-
MAN, on his own behalf and on behalf of all persons sim-
ilarly situated, prays that this Court grant the following
relief in Plaintiffs’ favor and against Defendants CITY
OF CHICAGO, HAROLD WASHINGTON, in his official
capacity as Mayor of the City of Chicago, and JEROME R.
BUTLER, in his official capacity as acting Commissioner
of the Department of Aviation of the City of Chicago:
A. judgment for compensatory damages against the
Defendants in an amount in excess of $10,000 per
Plaintiff for Defendants’ past and current viola-
tions of Plaintiffs’ constitutional rights;
A-63
B. a preliminary and permanent judgment enjoining
and restraining Defendants from further violating
Plaintiffs’ constitutional rights;
C. apreliminary and permanent injunction requiring
Defendants to implement alternatives to increased
aircraft operations at O’Hare International Air-
port that would not cause injury to Plaintiffs in
their person and property;
D. a preliminary and permanent injunction requir-
ing Defendants to implement mitigating measures
to reduce the continuing injury to Plaintiffs from
noise, vibration and air pollution;
Plaintiffs’ costs and reasonable attorneys’ fees; and
F. such other relief as this Court deems just and
proper.
COUNT II
Collusion Of The Airline Defendants
With The City Of Chicago To Intentionally
Injure Plaintiffs And Deprive Plaintiffs
Of Their Constitutional Rights
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons simi-
larly situated, by his attorneys, and complaining of Defen-
dants AMERICAN AIRLINES, INC., DELTA AIRLINES,
INC., NORTHWEST AIRLINES, INC., OZARK AIR-
LINES, INC., TRANS WORLD AIRLINES, INC., UNITED
AIR LINES, INC., and USAIRLINES, INC., (hereinafter
collectively referred to as “Airline Defendants”), alleges as
follows:
1-25. Plaintiffs adopt and reallege the allegations of
paragraphs 1 to 24 inclusive of Count I as and for the
allegations of paragraphs 1 to 24 of Count II.
26. The Airline Defendants planned, designed, imple-
A-64
mented and funded, in whole or in part, the past increases
in aircraft operations at O’Hare International Airport in
active concert and participation with Defendant City of
Chicago, and in furtherance of Defendant City of Chicago’s
official policy.
27. In so doing, Airline Defendants knew and
intended that the increased aircraft operations at O’Hare
International Airport would increase the noise, vibrations
and air pollution impacting Plaintiffs and thereby injure
Plaintiffs in their person and property.
28. Asadirect and proximate result of the conspiracy
between and collusion of Airline Defendants and Defen-
dant City of Chicago to intentionally deprive Plaintiffs of
their substantive constitutional rights of life, liberty and
property under color of state law, Plaintiffs, and each of
them, have been injured in one or more of the following
manners:
a. Plaintiffs have sustained physical injuries, includ-
ing but not limited to headaches, nausea from nox-
ious fumes and odors, other interferences with the
senses, loss of sleep, fatigue, and pain and suffer-
ing;
b. Plaintiffs have sustained severe mental and emo-
tional distress that has further damaged their
physical health, including but not limited to stress,
anxiety, nervousness, annoyance, strain, irritabil-
ity, worry and fear for the safety of themselves and
their family members;
c. Plaintiffs have sustained physical damage to the
residential real property which they own, reside
in and use, including but not limited to continued
shaking and vibration of the structure, objects, and
appliances and broken windows;
d. Piaintiffs have sustained damage from a substan-
tial loss of the use and peaceful enjoyment of their
A-65
property, including but not limited to interfer-
ence with speech among family members and tele-
phone communications, interference with radio,
stereo, and television communications and enjoy-
ment, interference with the use of their yards
and other outof-doors portions of their homes, and
difficulties in finding persons willing to purchase
their homes;
e. Plaintiffs have sustained damages by reason of
substantial interference with their ability to oper-
ate their businesses and pursue their livelihood,
their ability to concentrate mental effort, their
ability to study, their ability to perform ordinary
tasks, their ability to pursue their recreational
activities and pursuits, and their personal security
and privacy; and
f. Plaintiffs have been exposed and are continuing to
be exposed to a risk of cancer from the burned and
unburned aircraft fumes.
29. The knowing and intentional infliction of the
above-described injuries on Plaintiffs, as a result of the
conspiracy between and collusion of the Airline Defendants
and Defendant City of Chicago, violates Plaintiffs’ substan-
tive rights to life, liberty and property guaranteed by the
Fourteenth Amendment to the United States Constitution.
The deprivations and violations of Plaintiffs’ constitutional
rights and the dam~ ge to Plaintiffs by reason of the Airline
Defendants’ conspiracy and collusion with Defendant City
of Chicago is continuing and occurs on a daily basis.
30. In furtherance of this conspiracy, Airline Defen-
dants are planning, designing, implementing and funding
Defendant City of Chicago’s $1,500,000,000 expansion of
O’Hare International Airport that will increase annual air-
craft operations from 667,000 operations in 1983 to 920,000
operations in 1995, and to well in excess of 1,000,000 oper-
ations in the years thereafter.
A-66
31. Defendant City of Chicago and the Airline Defen-
dants have entered into a certain “Airport Use Agreement
and Terminal Facilities Lease and Amendments Nos. 1
and 2” (hereinafter referred to as the “Use Agreement”).
The form of the Use Agreement is too lengthy to attach
hereto (more than 500 pages, including exhibits), but a true
and correct copy is set forth in the Journal of Proceedings
for the City Council of the City of Chicago, January 28,
1983, commencing at p. 15,665.
32. Pursuant to the Use Agreement, the Airline
Defendants have guaranteed Defendant City of Chicago
that the Airline Defendants will pay for the $1,500,000,000
expansion of O’Hare International Airport that will sub-
stantially increase annual aircraft operations.
33. Airline Defendants know and intend that the
substantial increase in aircraft operations at O’Hare will
drastically increase the noise, vibrations and air pollution
impacting Plaintiffs and will thereby exacerbate Plaintiffs’
past and current injuries and cause new and additional
injuries and damages.
34. According to Thomas Kapsalis, former Commis-
sioner of the Department of Aviation of the City of Chicago,
Defendant City of Chicago failed to consider alternative
plans that would not cause injury or damage to Plaintiffs,
because the City’s co-conspirators, the Airline Defendants,
refused to fund less destructive alternatives than expan-
sion of operations at O’Hare International Airport.
35. The Airline Defendants, having acted under color
of state law as co-conspirators with Defendant City of
Chicago, are liable to the Plaintiffs for compensatory and
punitive damages under 42 U.S.C. Section 1983 for the Air-
line Defendants’ past and current willful, malicious and
intentional violations of Plaintiffs’ substantive constitu-
tional rights. Plaintiffs have no adequate remedy at law
for the announced intention of and steps already taken
by the Airline Defendants, in collusion with Defendant
A-67
City of Chicago, to willfully, maliciously, and intentionally
further violate Plaintiffs’ substantive constitutional rights
and cause further injury to Plaintiffs.
WHEREFORE, Plaintiff LAWRENCE C. BIENE-
MAN, on his own behalf and on behalf of all per-
sons similarly situated, prays that this Court grant the
following relief in his favor and against Defendants
AMERICAN AIRLINES, INC., DELTA AIRLINES, INC.,
NORTHWEST AIRLINES, INC., OZARK AIRLINES,
INC., TRANS WORLD AIRLINES, INC., UNITED AIR
LINES, INC., and USAIRLINES, INC-.:
A. judgment for compensatory damages against the
Defendants in an amount in excess of $10,000 per
Plaintiff for Defendants’ past and current viola-
tions of Plaintiffs’ constitutional rights;
B. judgment for punitive damages against the Defen-
dants in an amount sufficient to punish the Defen-
dants for their past and current willful, malicious
and intentional violations of Plaintiffs’ constitu-
tional rights, and to deter Defendants from com-
mitting similar wrongs in the future;
C. a preliminary and permanent judgment enjoining
and restraining Defendants from further violating
Plaintiffs’ constitutional rights;
D. apreliminary and permanent injunction requiring
Defendants to implement alternatives to increased
aircraft operations at O’Hare International Air-
port that would not cause injury to Plaintiffs in
their person and property;
E. a preliminary and permanent injunction requiring
Defendants to implement mitigating measures to
reduce the continuing injuries to Plaintiffs from
noise, vibration and air pollution;
F. Plaintiffs’ costs and reasonable attorneys’ fees; and
A-68
G. such other relief as this Court deems just and
proper.
COUNT II
Taking Of Plaintiffs’ Property Under
The Fifth And Fourteenth Amendments
Of The United States Constitution
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, by his attorneys, and complaining of Defendant
CITY OF CHICAGO, allege as follows:
1-18. Plaintiffs adopt and reallege the allegations of
paragraphs 1 to 17 inclusive of Count I as and for the
allegations of paragraphs 1 through 17 of Count III.
18. Defendant City of Chicago owns, controls, oper-
ates and is proprietor of O’Hare International Airport,
which is situated in both Cook County and DuPage County,
Illinois.
19. Plaintiffs own, use and reside in residential
real property under or adjacent to the paths of aircraft
approaching, departing or circling O’Hare International
Airport.
20. Defendant City of Chicago has caused and contin-
ues to cause numerous jet-powered aircraft to be operated,
piloted and propelled through the airspace over or adjacent
to Plaintiffs’ property, repeatedly and at all hours of every
day and night.
21. These continuous operations of airplanes from the
airport owned, operated, and controlled by Defendant City
of Chicago, have impacted and continue to impact Plain-
tiffs and their property with excessive levels of noise and
vibration, and inundate Plaintiffs with air pollution.
22. Asa direct and proximate result of this contin-
uous impacting and inundation, in 1976 Defendant City
of Chicago destroyed the use and enjoyment of Plaintiffs’
ee F
A-69
properties, damaged and destroyed Plaintiffs’ airspace,
dwellings, and other structures on Plaintiffs’ properties,
and totally destroyed the value of Plaintiffs’ property as
residences.
23. By reason of the foregoing, Plaintiffs’ properties
and airspace, and each of them, have been confiscated,
condemned, taken and made useless by Defendant City of
Chicago without due process and without compensation in
contravention of the Fourteenth Amendment to the Con-
stitution of the United States of America.
WHEREFORE, Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, prays that this court grant the following relief in
his favor and against Defendant CITY OF CHICAGO:
A. a declaration that Plaintiffs’ properties and
airspace have been taken by Defendant CITY OF
CHICAGO, without due process in contravention
of the Fourteenth Amendment to the Constitution
of the United States of America;
B. judgment for compensatory damages against
Defendant CITY OF CHICAGO for each Plaintiff,
for the value for the property and airspace taken
by Defendant City of Chicago;
C. Plaintiffs’ costs;
such other relief as this court deems just and
proper.
COUNT IV
State Tort Law Claim For Continuing Nuisance
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, by his attorneys, and complaining of Defendant
CITY OF CHICAGO, alleges as follows:
A-70
1-17. Plaintiffs adopt and reallege the allegations of
paragraphs 1-17 inclusive of Count I as and for the allega-
tions of paragraphs 1-17 of Count IV.
18. Defendant City of Chicago owns, controls, oper-
ates and is proprietor of O’Hare International Airport,
which is situated in both Cook County and DuPage County,
Illinois.
19. Plaintiffs, and each of them, own, use, and reside
in residential real property under or adjacent to the paths
of aircraft approaching, departing, or circling O’Hare !nter-
national Airport.
20. Defendant City of Chicago has caused and contin-
ues to cause numerous jet-powered aircraft to be operated,
piloted and propelled at low altitudes through the airspace
over or adjacent to Plaintiffs’ property, repeatedly and at
all hours of every day and night.
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 excessive levels
of noise and vibration, and inundate Plaintiffs with toxic
air pollutants. :
22. As a direct and proximate result of this pound-
ing with noise, vibration and inundation by air pollution,
Plaintiffs, and each of them, have sustained and continue
to sustain one or more-of the following injuries to their
persons and/or property:
a. Plaintiffs have sustained rhysical injuries, includ-
ing but not limited to headaches, nausea from nox-
ious fumes and odors, other interferences with the
senses, loss of » vep, fatigue, and pain and suffer-
ing;
b. Plaintiffs have sustained severe mental and emo-
tional distress that has further damaged their
physical health, including but not limited to stress,
A-71
anxiety, nervousness, annoyance, strain, irritabil-
ity, worry and fear for the safety of themselves and
their family members;
c. Plaintiffs have sustained physical damage to the
residential real property which they own, reside
in and use, including but not limited to continued
shaking and vibration of the structure, objects and
appliances and broken windows;
d. Plaintiffs have sustained damage from a substan-
tial loss of the use and peaceful enjoyment of their
property, including but not limited to interfer-
ence with speech among family members and tele-
phone communications, interference with radio,
stereo, and television communications and enjoy-
ment, interference with the use of their yards
and other outof-doors portions of their homes, and
difficulties in finding persons willing to purchase
their homes; a
e. Plaintiffs have sustained damages by reason of
substantial interference with their ability to oper-
ate their businesses and pursue their livelihoods,
their ability to concentrate mental effort, their
ability to study, their ability to perform ordinary
tasks, their ability to pursue their recreational
activities and pursuits, and their personal security
and privacy; and
f. Plaintiffs have been exposed and are continuing to
be exposed to a risk of cancer from the burned and
unburned aircraft fumes.
23. The foregoing actions of the Defendant City of
Chicago constitute a continuing nuisance for which Plain-
tiffs are entitled to damages.
WHEREFORE, Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, prays that this court grant the following relief in
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their favor and against Defendant CITY OF CHICAGO:
A. judgment for compensatory damages against
Defendant City of Chicago in an amount in excess
of $10,000 per Plaintiff;
B. Plaintiffs’ costs;
C. such other relief as this Court deems just and
proper.
COUNT V
State Tort Law Claim For Assault And Battery
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his behalf and on behalf of all persons similarly situ-
ated, and complaining of Defendant CITY OF CHICAGO,
alleges as follows:
1-17. Plaintiffs adopt and reallege the allegations of
paragraph 1 to 17 inclusive of Count I as and for the alle-
gations of paragraph 1 through 17 of Count V.
18. Defendant City of Chicago owns, controls, oper-
ates and is proprietor of O’Hare International Airport,
which is situated in both Cook County and DuPage County,
Illinois.
19. Plaintiffs, and each of them, own, use, and reside
in residential real property under or adjacent to the paths
of aircraft approaching, departing, or circling O’Hare Inter-
national Airport.
20. Defendant City of Chicago has caused and contin-
ues 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.
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
a
A-73
impact Plaintiffs and their property with excessive levels
of noise and vibration, and inundate Plaintiffs with air pol-
lution.
22. Asa direct and proximate result of this continu-
ous impacting with noise and vibration and inundation by
air pollution, Plaintiffs, and each of them, have sustained
one or more of the following injuries to their person:
a. Plaintiffs have sustained physical injuries, includ-
ing but not limited to headaches, nausea from nox-
ious fumes and odors, other interferences with the
senses, loss of sleep, fatigue and pain anid suffer-
ing;
b. Plaintiffs have sustained severe mental and emo-
tional distress that has further damaged their
physical health, including but not limited to stress,
anxiety, nervousness, annoyance, strain, irritabil-
ity, worry and fear for the safety of themselves and
their family members;
c. Plaintiffs have sustained physical damage to the
residential real property which they own, reside
in and use, including but not limited to continued
shaking and vibration of the structure, objects, and
appliances and broken windows;
d. Plaintiffs have sustained damage from a substan-
tial loss of the use and peaceful enjoyment of their
property, including but not limited to interfer-
ence with speech among family members and tele-
phone communications, interference with radio,
stereo, and television communications and enjoy-
ment, interference with the use of their yards
and other out-of-doors portions of their homes, and
difficulties in finding persons willing to purchase
their homes;
e. Plaintiffs have sustained damages by reason of
substantial interference with their ability to oper-
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ate their businesses and pursue their livelihood,
their ability to concentrate mental effort, their
ability to study, their ability to perform ordinary
tasks, their ability to pursue their recreational
activities and pursuits, and their personal security
and privacy; and
f. Plaintiffs have been exposed and are continuing to
be exposed to a risk of cancer from the burned and
unburned aircraft fumes.
23. The foregoing intentional pounding and inunda-
tion of Plaintiffs by the Defendant City of Chicago consti-
tutes a continuing assault and battery for which Plaintiffs
are entitled to damages.
24. Recently, Defendant City of Chicago duly autho-
rized and commenced implementation of a $1,500,000,000
expansion of O’Hare International Airport that will
increase annual aircraft operations from 667,000 opera-
tions in 1983 to 920,000 or more operations in 1995. Defen-
dant City of Chicago knows and intends that this sub-
stantial inicrease in operations will drastically increase the
noise, vibrations, and air pollution now beating and inun-
dating Plaintiffs, and will thereby exacerbate Plaintiffs’
past and current injuries and cause new and additional
injuries and damage.
25. This threat by Defendant City of Chicago to fur-
ther intentionally physically injure Plaintiffs, coupled with
the apparent physical ability of and steps already taken
by Defendant City of Chicago to effectuate the threat, has
created a well-founded fear of imminent peril in Plaintiffs.
This conduct constitutes a further continuing assault by
Defendant City of Chicago for which Plaintiffs are entitled
to damages.
WHEREFORE, Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, prays that this court grant the following relief in
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his favor and against Defendant City of Chicago:
A. judgment for compensatory damages against
Defendant City of Chicago in an amount in excess
of $10,000 per Plaintiff;
B. Plaintiffs’ costs;
C. such other relief as this Court deems just and
proper.
COUNT VI
Liability Of Airline Defendants
As Joint Venturers
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similar sit-
uated, and complaining of Defendants AMERICAN AIR-
LINES, INC., DELTA AIRLINES, INC., NORTHWEST
AIRLINES, INC., OZARK AIRLINES, INC., TRANS
WORLD AIRLINES, INC., UNITED AIR LINES, INC.,
and USAIRLINES, INC., (hereinafter collectively referred
to as “Airline Defendants”), alleges as follows:
1-17. Plaintiffs adopt and reallege the allegations of
paragraphs 1 to 17 inclusive of Count I as and for the
allegations of paragraphs 1 to 17 of Count VI; and Plain-
tiffs further incorporate all of the remaining allegations of
Counts III, IV and V inclusive, as allegations of this Count
VI.
18. On or about January 28, 1983, Defendant City of
Chicago and the Airline Defendants entered into certain
Airport Use Agreemenis and Terminal Facilities Leases
(hereinafter referred to as the “Use Agreements”). The
form of the Use Agreement is too lengthy to attach hereto
(more than 500 pages, including exhibits), but a true and
correct copy is set forth in the Journal of Proceedings for
the City Council of the City of Chicago, January 28, 1983,
commencing at p. 15,665.
A-76
19. Under said Use Agreements, each Airline Defen-
dant is granted the right to conduct an air transportation
business at the airport, and to perform all operations and
functions incidental, necessary or proper thereto. The City
has agreed not to grant any airline in competition with any
Airline Defendant any rights or privileges at the airport of
a character or on a basis more favorable to such person
than those granted or available to an Airline Defendant,
the effect of which is to place an Airline Defendant at a
competitive advantage. This grant includes the right to
use, subject to certain restrictions, the airfield area, non-
exclusive aircraft parking areas, airline’s exclusive use
premises, airline’s aircraft parking area and the public use
premises. Each of the Airline Defendants and the City
have certain specified obligations with respect to the main-
tenance and operation of the airport.
20. The Use Agreements contain as exhibits thereto
a list of those Capital Projects which are part of the Airport
Development Plan approved by the Airline Defendants.
Such exhibits also indicate with respect to each approved
Capital Project its “Airline Funded Cost”and its “Priori-
ty” classification (see “1983 Use Agreements - Authorized
Financing of Capital Projects”) and certain other informa-
tion.
21. The Use Agreements provide that the aggregate
of all rentals, fees and charges to be paid by the Airline
Defendants shall be sufficient to pay for the net cost of
operating, maintaining and developing the airport (exclud-
ing the Land Support Area), including the satisfaction of
all of the City’s obligations to make deposits and payments
under any ordinance or resolution authorizing airport obli-
gations.
22. The Use Agreements further provide that the
Airline Defendants shall indemnify and save the City
harmless from and against any and ail liabilities,
losses, damages, judgments, awards, settlement costs and
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expenses (including attorneys’ fees and expenses) arising
out of “... suits alleging a taking of property or interests
in property without just compensation, trespass, nuisance,
or similar suits based upon the use of the airport (other
than the Land Support Area) for the landing and take off
of aircraft...” (Use Agreements, Section 19.01(a)(i) (em-
phasis added).
23. The degree of effective control over the expansion,
development and use of the airport exercised and retained
by the Airline Defendants, as set forth in the Use Agree-
ments, make said Airline Defendants joint venturers with
Defendant City of Chicago in the development and use of
the airport.
24. As joint venturers, the Airline Defendants are
jointly and severally liable with Defendant City of Chicago
for the damages sought herein in Counts III, IV, and V
inclusive.
25. Inasmuch as the causes of action set forth in
Counts III, IV, and V are based on intentional, willful, and
malicious conduct of the Airline Defendants in concert and
participation and collusion with Defendant City of Chicago,
the Airline Defendants are further liable to Plaintiffs, and
each of them, for punitive damages.
WHEREFORE, Plaintiffs LAWRENCE C. BIENE-
MAN, on his own behalf and on behalf of all persons simi-
lar situated prays that this Court grant the following relief
in their favor and against Defendants AMERICAN AIR-
LINES, INC., DELTA AIRLINES, INC., NORTHWEST
AIRLINES, INC., OZARK AIRLINES, INC., TRANS
WORLD AIRLINES, INC., UNITED AIR LINES, INC.,
and USAIRLINES, INC., and each of them:
A. judgment for compensatory damages against the
Airline Defendants, jointly and severally, for a!]
compensatory damages sought from Defendar.t
City of Chicago in Counts III, IV, and V inclusive;
A-78
B. judgment for punitive damages against the Airline
Defendants, jointly and severally, in an amount
sufficient to punish Airline Defendants for their
past and current intentional, willful an malicious
conduct, and to deter Airline Defendants from com-
mitting similar wrongs in the future;
C. Plaintiffs’ costs; and
D. such other relief as this Court deems just and
proper.
COUNT VII
Declaratory Judgment That There Is
No Federal Preemption Of Plaintiffs’
State Law Actions For Damages
NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, by his attorneys, and complaining of Defendant
CITY OF CHICAGO, alleges as follows:
1. Plaintiff hereby incorporates and realleges the
allegations of Counts IV and V which allege state tort law
claims against Defendant City of Chicago.
2. As a matter of federal law the State Supreme
Courts of California, Georgia and Wisconsin have held that
Congress, in the passage of federal aviation legislation, did
not choose to preempt state law tort actions for damages
against airport proprietors. See Greater Westchester Home-
owners Association v. City of Los Angeles, 26 Cal.3d 86, 760
Cal.Rptr.733, 603 P.2d 1329 (1979), cert. den., 499 U.S. 820
(1980); City of Atlanta v. Owen, 282 S.E.2d 906 (Sup.Ct.Ga.
1981); Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d
733 (1983); Baker v. Burbank-Glendale-Pasadena Airport
Authority, No. L.A. 31869, Slip. op. (Cal. September 23,
1985).
3. Asa matter of the same federal law, the United
A-79
States Court of Appeals for the Seventh Circuit has held
that Congress, in the passage of federal aviation legisla-
tion, did intend to preempt state law claims for damages.
Luedtke v. County of Milwaukee, 521 F. 2d 387 (7th Cir.
1975).
4. It is irrational, arbitrary and discriminatory that,
under the identical federal law of preemption, injured res-
idents are allowed to invoke state law remedies in Los
Angeles and Atlanta, but not in Chicago.
5. Plaintiffs contend that as a matter of federal law
Congress, in the passage of federal aviation legislation, did
not intend to preempt their state law claims against the
City of Chicago for damages.
6. Defendant City of Chicago contends that as a mat-
ter of federal law Congress, in the passage of federal avi-
ation legislation, did intend to preempt state law claims.
Defendant City of Chicago justifies its injurious conduct
and its refusal to compensate victims on the basis of
the arbitrary and irrational discrimination between the
application of the federal law of preemption as applied to
Chicago, and the application of the identical federal law of
preemption to Atlanta and Los Angeles.
7. By virtue of the foregoing, an actual contro-
versy exists between the Plaintiffs and Defendant City of
Chicago.
WHEREFORE, Plaintiffs LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similar situ-
ated prays that this Court grant the following relief in his
favor and against Defendant CITY OF CHICAGO:
A. a declaration that as a matter of federal law Con-
gress, in the passage of federal aviation legislation,
did not preempt state law actions against airport
proprietors.
B. such other relief as this Court deems appropriate.
A-80
COUNT VIII
Violation Of Procedural Due Process
. NOW COMES Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similarly
situated, by his attorneys, and complaining of Defendant
CITY OF CHICAGO, alleges as follows:
1-17. Plaintiffs adopt and reallege the allegations of
paragraphs 1 to 17 inclusive of Count I as and for the
allegations of paragraphs 1 to 17 of Count VIII.
18. Defendant City of Chicago owns, controls, oper-
ates and is proprietor of O’Hare International Airport,
which is situated in both Cook County and DuPage County,
Illinois.
19. Plaintiffs, and and each of them, own, use, and
reside in residential real property under or adjacent to the
paths of aircraft approaching, departing, or circling O’Hare
International Airport.
20. On information and belief, Defendant City of
Chicago, without notice or payment of compensation to
Plaintiffs, claims to have taken for itself property rights
in tens of thousands of parcels of residential real property
owned, used and resided in by Plaintiffs. On information
and belief, Defendant City of Chicago also claims that it
need not pay any compensation for any of the property in-
terests it claims to have taken.
21. Pursuant to the statutory provisions of the State
of Illinois that govern O’Hare International Airport,
Ill.Rev.Stat., ch. 24, Sections 11-102-1, et seg., the City of
Chicago cannot acquire a legal interest in Plaintiffs’ prop-
erty without first giving notice, holding a hearing and dis-
closing its plan.
22. Defendant City of Chicago has never given Plain-
tiffs any notice of Defendant’s plan to acquire a legal in-
terest in Plaintiffs’ property.
A-81
23. Defendant City of Chicago has never held a hear-
ing on Defendant’s plan to acquire a legal interest in Plain-
tiffs’ property.
24. Defendant City of Chicago has never publicly dis-
closed its plan to acquire a legal interest in Plaintiffs’ prop-
erty.
25. Defendant City of Chicago’s failure to give notice,
hold a hearing and publicly disclose its plan to acquire an
interest in the tens of thousands of parcels of residential
real property owned, used and resided in by Plaintiffs vio-
lates Plaintiffs’ right to procedural due process guaranteed
by the Fourteenth Amendment to the United States Con-
stitution.
WHEREFORE, Plaintiff LAWRENCE C. BIENEMAN,
on his own behalf and on behalf of all persons similar situ-
ated prays that this Court grant the following relief in his
favor and against Defendant CITY OF CHICAGO:
A. a declaration that Defendant City of Chicago has
violated Plaintiffs’ rights to procedural due process
guaranteed by the Fourteenth Amendment to the
United States Constitution.
B. a declaration that any acquisition of any legal in-
terest in Plaintiffs’ real property claimed to have
been made by the City of Chicago is null, void and
of no force and effect by reason of Defendant City
of Chicago’s violation of Plaintiffs’ procedura! due
process rights.
C. an injunction enjoining and restraining Defendant
City of Chicago from acquiring any legal interest
in any of the residential real property owned, used
or resided in by Plaintiffs, unless and until Defen-
dant City of Chicago gives all Plaintiffs notice, and
holds a public hearing at which Defendant City of
Chicago makes full disclosure of its plan.
A-82
D. such further relief as this Court deems appropri-
ate.
PLAINTIFFS DEMAND TRIAL BY JURY.
LAWRENCE C. BIENEMAN, on
\ his own behalf and on behalf
of all persons similarly situated,
Plaintiffs
By /s/ JOSEPH KARAGANIS
One of his attorneys
JOSEPH V. KARAGANIS
A. BRUCE WHITE
KATHLEEN M. DONAHUE
ELLEN LoIs ZISOOK
Three First National Plaza
Suite 3200
Chicago, Illinois 60602
(312) 372-1121
A-83
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on April 18,
1986, copies of Plaintiffs’ FIRST AMENDED COM-
PLAINT in Bieneman, et al. v. City of Chicago, et al., Case
No. 84 C 10388, were served upon the following persons,
by personal delivery:
MICHAEL M. CONWAY Mr. CALVIN SAWYIER
MR. JEREMIAH MARSH WINSTON & STRAWN
Mr. MICHAEL SCHNEIDERMAN One First National Plaza
Mr. ALBER C. MAULE Suite 500
MR. WILLIAM J. MCKENNA Chicago, Illinois 60606
Mr. JAMES D. OsSYRA
Hopkins & SUTTER Mr. MARL E. JONES
Three First National Plaza Mr. MITCHELL WARE
Suite 4100 Mr. FRANK M. GRENARD
180 North LaSalle Street
Suite 801
Chicago, Illinois 60606
/s/ JOSEPH KARAGANIS
JOSEPH V. KARAGANIS
A. BRUCE WHITE
KATHLEEN M. DONAHUE
ELLEN LcIs ZISOOK
Three First National Plaza
Suite 3200
Chicago, Illinois 60602
A-84
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Minute Order Form
BIENEMAN |
Date: March 19, 1986
v. > No. 84 C 10388
Judge Duff
THE CITY OF CHICAGO
MOTION:
Plaintiff’s motion to reconsider.
DOCKET ENTRY:
For further detail see order on the reverse of the original
minute order form.
Docketing to mail notices.
Date received in central Clerk’s Office: March 20, 1986
Docketed: March 20, 1986
Document # 60
A-85
(Reserved for use by the Court)
ORDER
Plaintiff’s motion to reconsider Judge Decker’s order of
October 3, 1985, dismissing Counts I and II and ordering a
more definite statement as to Count III, is denied. Because
the legal and factual issues in this case are, by agreement
of the parties, essentially identical to those in Biddeson
[sic] v. City of Chicago, No. 85 C 10295, which has been
consolidated with this case, Judge Decker’s October 3, 1985
order shall apply equa'tly in that case. Accordingly, the
court strikes Counts / and II and orders a more definite
statement of Count JII in Biddison v. City of Chicago.
Plaintiffs in both cases are given until April 18, 1986
to amend their pleadings or file additional particulars.
Defendants are given until May 19, 1986 to answer.
A status hearing is set for 9:30 am on June 3, 1986.
/s/ BRIAN BARNETT DUFF
Brian Barnett Duff
A-86
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Minute Order Form
+
LAWRENCE C. BIENEMAN
Date: 23 Oct 85
Vv. Case Number 84 C 10388
Judge Decker
THE CITY OF CHICAGO et al
J
DOCKET ENTRY:
Memorandum opinion and order.
Defendants’ motions to dismiss Ct I and II of the com-
plaint are granted. The City’s motion to dismiss Ct III
is denied. The Court grants the City’s motion for a more
definite statement.
Courtroom deputy’s initials: MEU
Date received in central Clerk’s Office: October 28, 1985
Date Docketed: October 28, 1985
Document # 29
A-87
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAWRENCE C. BIENEMAN, )
Plaintiff,
v8. > No. 84 C 10388
THE CITY OF CHICAGO, et
al.,
Defendants.
a
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 42 U.S.C. Section 1983 against the
City of Chicago (the “City”), certain city officials, and var-
ious 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 oper-
ation of O’Hare constitutes a taking of his property without
compensation in violation of the Fourteenth Amendment
(Count III). Plaintiff seeks damages 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 join a necessary and indispensable party under Fed. R.
Civ. P. 12(b)(7) and 19(b), or in the alternative, for a more
Adefinite statement of Count III. The Airlines move to
lin considering a motion to dismiss, the court must “take
[plaintiff’s] allegations to be true, and view them, together with
(Footnote continued on the following page)
A-88
dismiss Count 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 pollu-
tion harming residents of the surrounding community and
their property. This may be, but plaintiff must identify
a Fourteenth Amendment liberty or property interest vio-
lated by such activities to state a cause of action under
Section 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 Process Clause
itself. Hewitt v. Helms, 459 U.S. 460, 466 (1983).
Plaintiff rightly admits there is no constitutional right
to protection from general environmental harma. Plaintiff
argues, however, that this case “should be treated ... [as
one] involving official policies that result in the intentional
beating of citizens with fists and clubs.” Plaintiff’s Mem-
orandum 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 his
novel theory.” The court finds plaintiff’s analogy between
1 (Continued)
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 ciaim 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).
2 Plaintiff contends that the factually similar case of Virginians
for Dulles v. Volpe, 344 F. Supp. 573 (E.D. Va. 1972) affd in
part, rev'd in part on other grounds, 541 F.2d 442 (4th Cir. 1976),
recognized such a claim. The court disagrees. In Virginians for
Dulles, the court characterized the plaintiffs’ due process claim
(Footnote continued on the following page)
A-8S
fists and clubs and airplane noise wholly inappropriate.
Plaintiff’s claim in better analogized to common law nui-
sance and the Seventh Circuit has expressly held that such
tort rights “are not property rights under the Fourteenth
Amendment.” Brown v. Brienen, 722 F. 2d 360, 364 (7th
Cir. 1983). Plaintiff’s analogy also stretches the scope of
the Fourteenth Amendment and Section 1983 beyond plau-
sible limits. If noise from a lawfully operated airport is
actionable under Section 1983, so too are other normal
government operations, i.e., bus and train systems, con-
struction projects. Neither the Fourteenth Amendment nor
Section 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 plain-
tiff does not sufficiently allege violation of his Fourteenth
Amendment 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 vio-
lation of his Fourteenth Amendment rights, his conspiracy
claim lacks an essential element and must be dismissed.°
2 (Continued)
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 consideration 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).
3 The court also notes that, even if properly pleaded, no such
cause of action may be asserted against the Airline defendants.
(Footnote continued on the following page)
A-90
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 “promoter, 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 nec-
essary party to this action. The City contends, however,
that by its independent control over certain land and oper-
ations at O’Hare, the United States is co-proprietor and as
such must be joined in this action. Defendant’s [sic] 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 dol-
lars. 28 U.S.C. Sections 1346(a), 1491. Therefore, if the
United States is a necessary party, the court must deter-
mine whether this action should, in equity and good con-
science, 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. den., 455 U.S. 1000 (1982).
The United States originally selected the site and
owned t' e land on which O’Hare is now situated. Through
3 (Continued)
The Seventh Circuit so held in Luedtke v. County of Milwaukee,
521 F.2d 387, 389 (7th Cir. 1975).
A-91
a series of conveyances, it has transferred most of that land
to the City. The United States retained a variety of con-
trols 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 exclu-
sive 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 Memoran-
dum. Furthermore, the United States has title to a small
portion of the 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 pro-
prietor 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 opera-
tor. 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 respon-
sible for an easement created thereby.
4 The reversions may vest only upon violation of the aforemen-
tioned conditions. These conditions, however, are not impli-
cated 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.
A-92
The court is also mindful that in numerous documents,
including O’Hare’s operating license and a City ordinance
authorizing revenue bonds for O’Hare construction, 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 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 min-
imized 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 plain-
tiff as a matter of right in the United States Claims Court.
Further, because the United States operates relatively few
flights out of O’Hare, the court is confident that adequate
relief can be fashioned in its absence and the practical like-
lihood of multiple proceedings is low. In addition, there is
little possibility that proceeding will prejudice the City or
the United States. Any such prejudice is outweighed by
the aforementioned countervailing 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 tak-
ing occurred. Under plaintiff’s theory of liability, at some
point in time, the operations at O’Hare so burdened his
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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 cre-
ated. See Branning v. United States, 654 F. 2d 88, 102-103
(Ct. Cl. 1981).
II. Conclusion
For the foregoing reasons, defendants’ motions to dis-
miss 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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