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Consolidated Appeal Nos. 05-4450 and 05-4451Related Appeal: No. 05-4418
IN THEUNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
VILLAGE OF BENSENVILLE, an Illinois municipalcorporation; VILLAGE OF ELK GROVE, an Illinoismunicipal corporation; ROXANNE MITCHELL; RESTHAVEN CEMETERY ASSOCIATION, an Illinoisnot-for-profit corporation; ROBERT PLACEK; andLEROY H. HEINRICH,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, an Illinois MunicipalCorporation; FEDERAL AVIATION ADMINISTRATION; MARION BLAKEY, Administrator of the Federal Aviation Administration,
Defendants-Appellees.
Appeal from the United States District Courtfor the Northern District of Illinois
Eastern DivisionNo. 03 C 3726
The Honorable David H. Coar, Judge Presiding_______
BRIEF OF DEFENDANT-APPELLEE CITY OF CHICAGO_________
MARA S. GEORGESCorporation Counsel
of the City of ChicagoSuite 80030 North LaSalle StreetChicago, Illinois 60602(312) 744-4439
BENNA RUTH SOLOMON Deputy Corporation CounselMYRIAM ZRECZNY KASPER Chief Assistant Corporation CounselSUZANNE M. LOOSE Assistant Corporation Counsel
Of Counsel
Consolidated Appeal Nos. 05-4450 and 05-4451Related Appeal: No. 05-4418
IN THEUNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
VILLAGE OF BENSENVILLE, an Illinois municipalcorporation; VILLAGE OF ELK GROVE, an Illinoismunicipal corporation; ROXANNE MITCHELL; RESTHAVEN CEMETERY ASSOCIATION, an Illinoisnot-for-profit corporation; ROBERT PLACEK; andLEROY H. HEINRICH,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, an Illinois MunicipalCorporation; FEDERAL AVIATION ADMINISTRATION; MARION BLAKEY, Administrator of the Federal Aviation Administration,
Defendants-Appellees.
Appeal from the United States District Courtfor the Northern District of Illinois
Eastern DivisionNo. 03 C 3726
The Honorable David H. Coar, Judge Presiding_______
BRIEF OF DEFENDANT-APPELLEE CITY OF CHICAGO_________
i
TABLE OF CONTENTS
PAGE
Table of Authorities . . . . . . . . . . . . . . . . . . . . ii
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . 1
Issues Presented for Review . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . 5
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 9
Summary of Argument . . . . . . . . . . . . . . . . . . . . 16
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . 16
I. REST HAVEN HAS WAIVED ALL ARGUMENTS FOR REVERSING THEDISTRICT COURT’S DISMISSAL OF ITS CLAIMS. . . . . . . . 19
II. REST HAVEN’S CLAIMS WERE PROPERLY DISMISSED BECAUSE THEREREMAINS NO LIVE CASE OR CONTROVERSY CONCERNING REST HAVENCEMETERY. . . . . . . . . . . . . . . . . . . . . . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 35
ii
TABLE OF AUTHORITIES__________
CASES PAGE
Ajayi v. Aramak Business Services, Inc., 336 F.3d 520 (7th Cir. 2003) . . . . . . . . . . . . . . 22
Belom v. National Futures Association, 284 F.3d 795 (7th Cir. 2002) . . . . . . . . . . . . . . 20
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . 25
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . 31
Day v. Northern Indiana Public Service Corp., 164 F.3d 382 (7th Cir. 1999) . . . . . . . . . . . . . . 22
E.E.O.C. v. North Gibson School Corp., 266 F.3d 607 (7th Cir. 2001) . . . . . . . . . . . . . . 27
Federation of Advertising Industry Representatives,Inc. v. City of Chicago, 326 F.3d 924 (7th Cir.), cert. denied, 540 U.S. 879 (2003) . . . . . . . . . . . . . . . . . . 31
Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996) . . . . . . . . . . . . . . 17
Kelso v. Bayer, 398 F.3d 640 (7th Cir. 2005) . . . . . . . . . . . . . . 23
Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) . . . . . . . . . . . . . . 27
Licari v. City of Chicago, 262 F.3d 646 (7th Cir. 2001) . . . . . . . . . . . . . . 24
Lin v. Ashcroft, 385 F.3d 748 (7th Cir. 2004) . . . . . . . . . . . . . . 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . 26
Magnuson v. City of Hickory Hills, 933 F.2d 562 (7th Cir. 1991) . . . . . . . . . . . . . . 31
iii
Mazanec v. North Judson-San Pierre School Corp., 798 F.2d 230 (7th Cir. 1986) . . . . . . . . . . . . . . 27
Northeastern Florida Chapter of the Associated GeneralContractors v. City of Jacksonville, 508 U.S. 656 (1993) . . . . . . . . . . . . . . . . . . 31
Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1990) . . . . . . . . . . . . . 31
Reid v. Illinois State Board of Education, 358 F.3d 511 (7th Cir. 2004) . . . . . . . . . . . . . 17-18
Rembert v. Sheahan, 62 F.3d 937 (7th Cir. 1995) . . . . . . . . . . . . . 2,28
Renne v. Geary, 501 U.S. 312 (1991) . . . . . . . . . . . . . . . . . . 25
Roberts v. American Airlines, Inc., 526 F.2d 757 (7th Cir.), cert. denied, 425 U.S. 951 (1976) . . . . . . . . . . . . . . . . . . 26
Ross Brothers Construction Co. v. International SteelServices, Inc., 283 F.3d 867 (7th Cir. 2002) . . . . . . . . . . . . . . 23
Thomas v. Fiedler, 884 F.2d 990 (7th Cir. 1989) . . . . . . . . . . . . . . 31
Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517 (7th Cir. 2001), cert. denied, 535 U.S. 929 (2002) . . . . . . . . . . . . . . . 25,26,27
United States v. Foster, 789 F.2d 457 (7th Cir.), cert. denied, 479 U.S. 883 (1986) . . . . . . . . . . . . . . . . . . 24
United States v. McDougal, 133 F.3d 1110 (8th Cir. 1998) . . . . . . . . . . . . . 24
United States v. Ramsey, 406 F.3d 426 (7th Cir. 2005) . . . . . . . . . . . . . . 20
United States v. Torres, 170 F.3d 749 (7th Cir. 1999) . . . . . . . . . . . . . . 24
iv
Wernsing v. Thompson, 423 F.3d 732 (7th Cir. 2005) . . . . . . . . . . . . . . 27
Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485 (7th Cir. 2004) . . . . . . . . . . . 25-26,27
U.S. CONSTITUTION, STATUTES, & RULES
5 U.S.C. § 552 (2000) . . . . . . . . . . . . . . . . . . . . . 2
16 U.S.C. § 470f (2000) . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1291 (2000) . . . . . . . . . . . . . . . . . . . . 3
28 U.S.C. § 1331 (2000) . . . . . . . . . . . . . . . . . . . . 2
42 U.S.C. § 2000bb et seq. (2000) . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000cc et seq. (2000) . . . . . . . . . . . . . . . 1
42 U.S.C. § 4332 (2000) . . . . . . . . . . . . . . . . . . . . 1
49 U.S.C. § 303 (2000) . . . . . . . . . . . . . . . . . . . . 1
49 U.S.C. § 46110 (2000) . . . . . . . . . . . . . . . . . 3,30
P.A. § 93-450, 2003 Ill. Legis. Serv. 2394 . . . . . . . . . 14
Fed. R. App. P. 28 . . . . . . . . . . . . . . . . . . . . 22,24
Fed. R. Civ. P. 54(b) . . . . . . . . . . . . . . . . . . . . . 3
40 C.F.R. § 1506.1 . . . . . . . . . . . . . . . . . . . . . 14
67 Fed. Reg. 47029-30 (July 17, 2002) . . . . . . . . . . . . 10
We cite to the docket number assigned each document, even1
though many of the documents in the record are not marked withthose numbers.
1
JURISDICTIONAL STATEMENT
The jurisdictional statement of plaintiffs-appellants is not
complete and correct. These plaintiffs, along with St. John’s
United Church of Christ and two plaintiffs with relatives buried
at St. Johannes Cemetery [hereafter referred to collectively as
“St. John’s”], filed a complaint against the City and the FAA.
R. 1-1. The plaintiffs subsequently filed an amended complaint,1
alleging that the City’s plans to acquire and demolish property
for O’Hare expansion and the FAA’s role in approving airport
expansion plans violated the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4332 (2000); the National Historic
Preservation Act (“NHPA”), 16 U.S.C. § 470f (2000); the
Department of Transportation Act, 49 U.S.C. § 303 (2000); the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
42 U.S.C. § 2000cc et seq. (2000); and the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. (2000), as
well as the Free Exercise Clause, the Equal Protection Clause,
and the Due Process Clause of the United States Constitution.
Separate Appendix to Brief of Appellants Village of Bensenville,
Village of Elk Grove, Roxanne Mitchell, Rest Haven Cemetery
Association, Robert Placek, and Leroy H. Heinrich at SA-1
2
[hereafter “Bensenville Sep. App.”]. On October 26, 2005, all
the plaintiffs except Rest Haven Cemetery Association, Robert
Placek, and Leroy H. Heinrich [hereafter referred to collectively
as “Rest Haven”], filed a motion for leave to file a second
amended complaint which contained similar counts. Id. at SA-102.
The district court had jurisdiction over the amended
complaint when it was filed, but the claims raised by Rest Haven
became moot when the FAA issued a record of decision declining to
approve an airport layout plan (“ALP”) that included acquiring
and relocating Rest Haven Cemetery, and, instead, approving a
modified ALP that works around the cemetery. Rest Haven did not
allege claims in the second amended complaint challenging the ALP
as approved by the FAA. The district court thus lost subject
matter jurisdiction over Rest Haven’s claims. See, e.g., Rembert
v. Sheahan, 62 F.3d 937, 940 (7th Cir. 1995) (a federal court
loses jurisdiction over claims that have become moot).
As for the claims that were pled in the second amended
complaint, the district court had jurisdiction over only some of
them. Specifically, the court had jurisdiction under 28 U.S.C.
§ 1331 (2000) over the claims brought by St. John’s against the
City under 28 U.S.C. § 1331 (2000). These claims are pending
before this court in No. 05-4418. The court also had
jurisdiction over a claim asserted against the FAA under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2000). At
3
the time the second amended complaint was tendered, the district
court did not have jurisdiction over any of the other claims
against the FAA because the court of appeals has exclusive
jurisdiction over final orders of the FAA under 49 U.S.C.
§ 46110(a) (2000); id. § 46110(c).
On November 16, 2005, the district court entered an order
dismissing the first amended complaint and denying leave to file
a second amended complaint, except for the FOIA count against the
FAA. Brief of Appellants Village of Bensenville, Village of Elk
Grove, Roxanne Mitchell, Rest Haven Cemetery Association, Robert
Placek, and Leroy H. Heinrich at A-2 [hereafter cited as
“Bensenville Br.”]. The district court also entered an order
pursuant to Fed. R. Civ. P. 54(b) finding no just reason to delay
entry of judgment. Id. at A-1. The plaintiffs filed three
notices of appeal on November 23, 2005. R. 157. Appeal Nos. 05-
4450 and 05-4451 were consolidated. This court has jurisdiction
over these appeals pursuant to 28 U.S.C. § 1291 (2000).
4
ISSUES PRESENTED FOR REVIEW
1. Whether Rest Haven has waived all arguments for
reversal of the district court’s dismissal where it failed to
identify a current injury or threat of injury, either before the
district court or in the argument section of its opening brief on
appeal, and where the only argument it does present improperly
adopts a brief in a separate appeal.
2. Whether there remains any live case or controversy
concerning Rest Haven Cemetery after the FAA approved an ALP that
allows the cemetery to remain at its current location with graves
undisturbed.
The FAA’s record of decision is a matter of public2
record, judicially noticeable by this court, and is included in
5
STATEMENT OF THE CASE_________
In May 2003, Rest Haven, along with St. John’s, the Village
of Bensenville, the Village of Elk Grove, and a few village
residents, filed this lawsuit. R. 1. The plaintiffs filed an
amended complaint on June 19, 2003. Bensenville Sep. App. at SA-
1. The plaintiffs sought to enjoin the City from acquiring
property for its O’Hare Modernization Program (“OMP”) before
receiving FAA approval of an ALP. Id. Along with other claims,
the complaint alleged that the City’s planned acquisition and
destruction of two cemeteries violated the First Amendment,
RLUIPA, and the Equal Protection Clause. Id. On June 23, 2003,
the City moved to dismiss the complaint. R. 34. On July 10,
2003, the City agreed to an order not to acquire property, except
for “hardship situations,” in Bensenville or Elk Grove Village,
or to acquire the two cemeteries, until the FAA issued a record
of decision (“ROD”) approving the OMP. R. 54.
Pursuant to NEPA, the FAA prepared an environmental impact
statement (“EIS”), which it issued on July 28, 2005, and issued a
ROD on September 29, 2005, approving the City’s ALP, with a
modification to accommodate Rest Haven Cemetery. See Appendix of
Federal Appellees at 20-21, 35-37, 95-107 [hereafter cited as
“FAA App.”]. The plaintiffs in this case, except for Rest2
an appendix to the FAA’s brief in this case. In the relatedappeal, St. John’s United Church of Christ v. City of Chicago,No. 05-4418, the plaintiffs argued that our reference to the RODwas inappropriate because they contest matters in that document. See Reply Brief of St. John’s at 1 n.1. The references we maketo the ROD are incontestable. Moreover, the ROD is an integralpart of the history of this case. Its issuance caused thedistrict court to issue a rule to show cause why certain countsshould not be dismissed, including the counts brought by RestHaven, and the plaintiffs amended their complaint in manysignificant ways, including to eliminate Rest Haven as aplaintiff, in response to the rule to show cause.
6
Haven, filed a petition for review of the ROD in the United
States Court of Appeals for the District of Columbia Circuit and
an emergency motion for a stay pending appeal. The motion for a
stay was denied, and that action is still pending. See Village
of Bensenville v. FAA, No. 05-1383. Subsequent to the ROD, on
November 21, 2005, the FAA issued a Letter of Intent (“LOI”)
announcing its intent to obligate up to $337,200,000 from current
and future budget authority to issue grants to the City for Phase
I of the OMP. Bensenville Sep. App. at SA-525. The plaintiffs
in this case, except for Rest Haven, also filed a petition to
review that decision, along with an emergency motion for stay and
injunctive relief. See Village of Bensenville v. FAA, No. 05-
1456 (D.C. Cir.). On January 17, 2006, the D.C. Circuit denied
the motion for a stay and injunctive relief pending appeal and
consolidated that case with the earlier appeal of the ROD.
Meanwhile, on October 11, 2005, the district court, in this
case, issued a rule to show cause why certain parties and counts
7
should not be dismissed in light of the issuance of the ROD.
Bensenville Sep. App. at SA-83. Regarding Rest Haven’s claims,
the court noted that “it appears that Rest Haven is no longer
included in the final plans for the OMP,” and is thus “no longer
affected by the OMP.” Id. at SA-87. Rest Haven responded
agreeing to dismiss its claims if it could obtain “an enforceable
order of this court” incorporating “the commitment of the City of
Chicago and the FAA” not to disturb Rest Haven. Id. at SA-91.
In the alternative, Rest Haven “wish[ed] to proceed to final
judgment on the existing Amended Complaint.” Id.
The other plaintiffs filed a motion to amend their
complaint, Bensenville Sep. App. at SA-102, along with motions
for a temporary restraining order (“TRO”) and preliminary
injunction, R. 118, R. 120, R. 123.
The proposed second amended complaint contains several
counts by the other plaintiffs, including St. John’s Free
Exercise Clause, Equal Protection Clause, and RLUIPA claims.
Bensenville Sep. App. at SA-145 to SA-155. The complaint also
contains several counts against the FAA, including, among other
allegations, that the FAA had violated RFRA, had assisted the
City’s purported constitutional and RLUIPA violations, and was
improperly allowing the City to proceed with acquisition and
demolitions before making a decision on the City’s applications
for funding. Id. at SA-147 to SA-168.
After St. John’s had represented that it was pursuing3
only its “religious law claims” in a motion for summary reversal,for injunctive relief pending appeal, and to expedite its appeal,this court struck St. John’s original brief, which attempted toadd claims against the FAA. This court also subsequently deniedSt. John’s motion to join the briefs in these consolidatedappeals. The claims of St. John’s, therefore, are beingaddressed exclusively in No. 05-4418.
8
The district court entered and extended a TRO while it
considered the plaintiffs’ motions. R. 135. On November 16,
2005, the court entered an order vacating the TRO, dismissing the
first amended complaint and denying leave to file all but the one
FOIA count in the second amended complaint. Bensenville Br. at
A-2. A judgment pursuant to Rule 54(b) was entered that same
date. Id. at A-1.
The plaintiffs filed three separate appeals. St. John’s
separately appealed its claims against the City in appeal No. 05-
4418, and that case has proceeded separately on an expedited
schedule. The two villages and one village resident filed the
second appeal, No. 05-4450, and Rest Haven filed the third, No.
05-4451. The latter two appeals were consolidated.3
9
STATEMENT OF FACTS_________
The O’Hare Modernization Program
As the FAA has found, O’Hare International Airport is one of
the busiest airports in the world and a major contributor to
aircraft delay throughout the country. FAA App. at 7-10. To
meet increasing demand and reduce flight delays, the City of
Chicago, as owner and operator of O’Hare, has proposed the OMP.
R. 45 ¶ 2; R. 46 ¶ 4. The OMP would replace the current outmoded
configuration -- seven intersecting runways -- with six parallel
and two crosswind runways, reducing delays considerably by
allowing for a constant stream of landings and takeoffs. R. 45
¶ 2; FAA App. at 8-10.
To complete the renovations at O’Hare, the City must acquire
property in the area adjacent to the current boundaries of
O’Hare. Bensenville Sep. App. at SA-105; R. 46 ¶ 2; FAA App. at
66. The City’s original proposed design required the City to
acquire two cemeteries, in addition to hundreds of other
properties, including homes, businesses, and parklands.
Bensenville Sep. App. at SA-2. When the City acquires these
properties it will pay just compensation, as required by the
Constitution and, in addition to that, relocation costs and other
benefits as required by federal law. FAA App. at 66-67.
The City announced the OMP in June 2001 and applied for FAA
approval of an amended ALP. See Bensenville Sep. App. at SA-2.
10
On July 17, 2002, the FAA issued its notice of intent to prepare
an EIS. 67 Fed. Reg. 47029-30 (July 17, 2002). The FAA analyzed
the environmental consequences of the OMP and a range of
alternatives, and issued a final EIS on July 28, 2005. FAA App.
at 20-21. The FAA carefully scrutinized the impact on property
to be acquired, including the claims by the owners of St.
Johannes and Rest Haven cemeteries that relocation imposed a
substantial burden on religion not justified by a compelling
governmental interest. The FAA accepted that relocation would
impose a substantial burden on religion. FAA App. at 97. The
FAA then determined that the airport plan could and should be
changed to work around Rest Haven Cemetery. FAA App. at 100.
The area where Rest Haven is located was slated as a space for
necessary relocation of existing air cargo facilities, and that
plan represented the “optimum arrangement” for clustering air
cargo facilities together. Id. Nevertheless, “[i]n balancing
the interests of the Rest Haven religious objectors with the
compelling interest in adoption of Alternative C, the FAA found
it would be possible to relocate those cargo facilities within
the space available for repositioning the cargo buildings and
still leave Rest Haven Cemetery undisturbed . . . .” Id. The
FAA, therefore, approved:
the selected alternative with an ALP that depicts cargobuilding repositioning, but also shows that Rest HavenCemetery will remain in private ownership, completewith an access road provided by the City of Chicago, to
11
allow continued access to its grounds. As such, thecemetery will remain available for future burials, andfor visitation and care of the graves by members of thepublic. Under this arrangement, there will be no basisfor mandatory reinterment of bodies at Rest HavenCemetery. As a result, there will be no substantialburden upon religious liberties at Rest Haven Cemetery.
Id. See also FAA App. at 119.
The FAA also found that acquisition of the land on which St.
Johannes Cemetery sits was essential and necessary to serve a
compelling interest and would violate neither the Free Exercise
Clause nor RFRA. FAA App. at 107-08.
The FAA identified the OMP, with a revision to build around
Rest Haven, as the preferred alternative to meet capacity and
delay-reduction needs at O’Hare. FAA App. at 35-37, 100, 119.
On September 29, 2005, the FAA issued its ROD approving that
revised ALP. FAA App. at 120-22. The plaintiffs in this case,
except for Rest Haven, filed a petition for review of that
decision in the United States Court of Appeals for the D.C.
Circuit. Village of Bensenville, No. 05-1383 (D.C. Cir.).
Subsequently on November 21, 2005, the FAA issued a letter
of intent indicating that the FAA would obligate up to
$337,200,000 in funds over the next fifteen years for grants to
the City for the OMP. Bensenville Sep. App. at SA-526. Again,
the plaintiffs in this case, except for Rest Haven, filed a
petition for review of that decision. Village of Bensenville,
By order of January 17, 2006, the D.C. Circuit4
consolidated the two cases.
12
No. 05-1456 (D.C. Cir.).4
District Court Proceedings
In May 2003, long before the FAA issued its EIS or ROD, Rest
Haven, along with St. John’s, the Village of Bensenville, the
Village of Elk Grove, and a few village residents, filed this
lawsuit. R. 1. The plaintiffs filed an amended complaint on
June 19, 2003. Bensenville Sep. App. at SA-1. The plaintiffs
sought to enjoin the City from acquiring property for the OMP
before the FAA approved an ALP. Id. That amended complaint
alleged that the City, in 2003, planned to acquire and demolish
Rest Haven Cemetery, along with other properties, for the OMP.
Id. at SA-2. The complaint alleged that the City cannot build
the proposed OMP “unless and until the FAA renders a decision
approving the proposed OMP project.” Id. Rest Haven alleged
that the planned acquisition of Rest Haven Cemetery would violate
RFRA, RLUIPA, the First Amendment, and the Equal Protection
Clause. Id. at SA-3, SA-47, SA-52, SA-55, SA-56, SA-60, SA-63,
SA-67, SA-70, SA-72, SA-74, SA-76. Rest Haven sought declaratory
relief against the City and the FAA to require the FAA to meet
the strict scrutiny test before approving acquisition and
destruction of Rest Haven, see, e.g., id. at SA-40, SA-48, and an
injunction to keep the City from acquiring or destroying Rest
13
Haven, see, e.g., id. at SA-49, SA-57. On June 23, 2003, the
City moved to dismiss the complaint. R. 34.
On October 11, 2005, after the FAA had issued its ROD
approving an ALP that excluded Rest Haven from the area to be
acquired and used for the OMP, the district court, in this case,
issued a rule to show cause why certain parties and counts should
not be dismissed in light of the issuance of the ROD.
Bensenville Sep. App. at SA-83. Regarding Rest Haven’s claims,
the court noted:
it appears that Rest Haven is no longer included in thefinal plans for the OMP. Given that Rest Haven is nolonger affected by the OMP, the Rest Haven Plaintiffsshould be willing to voluntarily dismiss all the countsof the complaint that they bring. This court assumesthat the Rest Haven Plaintiffs are amenable to thatconclusion, as they have not attempted to participatein the emergency stay litigation currently taking placein the D.C. Circuit.
Bensenville Sep. App. at SA-87.
In response to the rule to show cause, the City agreed that
the dismissals proposed in the court’s order, excluding the
dismissal of Rest Haven, “should be entered for the reasons and
based on the authorities set forth in the Court’s Memorandum
Opinion and Order.” R. 115. In the plaintiffs’ response, Rest
Haven addressed its claims by stating:
The Rest Haven Plaintiffs are happy to dismiss all thecounts relating to Rest Haven if they can obtain anenforceable order of this court which incorporates thecommitment of the City of Chicago and the FAA: (a) thatChicago will preserve and leave forever undisturbed thegraves of the departed at Rest Haven; and (b) that
14
Chicago will guarantee the Rest Haven plaintiffscontinued access to the Rest Haven Cemetery. Withoutsuch an order the Rest Haven Plaintiffs wish to proceedto final judgment on the existing Amended Complaint.
Bensenville Sep. App. at SA-91.
The other plaintiffs sought leave to file a second amended
complaint. Bensenville Sep. App. at SA-102. Rest Haven did not
join in this motion. St. John’s alleged in counts I, III, and V
of the proposed second amended complaint that certain provisions
of the O’Hare Modernization Act, P.A. § 93-450, 2003 Ill. Legis.
Serv. 2394, violate the Free Exercise Clause, the Equal
Protection Clause, and RLUIPA. Id. at SA-145 to SA-156. The
proposed second amended complaint also contains several counts
against the FAA, including, among other allegations, that the FAA
assisted the City’s purported constitutional and RLUIPA
violations. Id. at SA-147, SA-151, SA-156. In addition, the
complaint alleges that the FAA violated RFRA, Article III of the
Constitution, and the Due Process Clause; and that the plaintiffs
are entitled to have these claims tried de novo by an Article III
district court. Id. at SA-157 to SA-160; id. SA-164 to SA-165.
And the complaint alleges that the FAA violated 40 C.F.R. §
1506.1 by making decisions on the ALP and funding applications at
separate times, and allowing the City to proceed with acquisition
and demolition of homes before the FAA made its decisions on
funding. Id. at SA-162. The complaint also contained one count
based on FOIA. Id. at SA 168.
15
On November 16, 2005, the court entered an order dismissing
the first amended complaint and denying leave to file all but one
FOIA count against the FAA in the second amended complaint.
Bensenville Br. at A-2. As for the claims of Rest Haven, the
district court determined:
There is no reason why the Rest Haven Plaintiffs shouldnot be dismissed from this litigation. The Rest HavenPlaintiffs were given full and fair opportunity topresent arguments as to why they are in any wayaffected by proposed actions by the City and the FAAand failed to do so. Given the lack of a presentdispute, this Court concludes that the Rest HavenPlaintiffs are not presently threatened with harm. Plaintiffs were given ample opportunity to show thatthere is harm such that Article III standingrequirements are satisfied, and failed to do so. Consequently, all counts of the First Amended Complaintbrought by the Rest Haven Plaintiffs are dismissed withprejudice.
Id. at A-14. The court then rejected the free exercise, equal
protection, and RLUIPA claims of St. John’s, in turn. Id. at A-
16 to A-24. The court then determined that it lacked
jurisdiction over claims against the FAA in the second amended
complaint, except for the FOIA claim, because those claims are
properly raised only in the D.C. Circuit. Id. at A-24 to A-33.
The other claims against the FAA in the amended complaint were
dismissed as moot. Id. at A-33.
16
SUMMARY OF ARGUMENT___________
The district court properly dismissed the claims of Rest
Haven because Rest Haven no longer presented an actual case or
controversy. As a threshold matter, Rest Haven has waived any
argument that it has presented a justiciable claim because it
failed to properly raise any such argument before the district
court or in its appellate brief. And, on the merits, the
district court’s ruling was sound. Because the FAA approved a
modified ALP that does not include building airport facilities at
Rest Haven’s current location, and, accordingly, the City no
longer intends to acquire Rest Haven, Rest Haven no longer faces
any threat of acquisition and relocation. And Rest Haven has
identified no other injury or present threat of injury enabling
it to forward any of its claims against the City or the FAA.
17
ARGUMENT____
When the City sought FAA approval of a modified ALP in order
to build the OMP, Rest Haven objected, based on concerns about
the effect of the proposed plan on its religious practices. The
FAA responded to those concerns by approving an ALP that
preserves Rest Haven against acquisition and relocation. The
City, therefore, no longer plans to acquire Rest Haven Cemetery.
Thus, Rest Haven will continue to exist, in its present location,
with all the graves intact, and visitors will continue to have
access to the cemetery. The district court, therefore, properly
dismissed Rest Haven’s claims for failure to present a
justiciable case or controversy.
Rest Haven seemed to acknowledge as much when it decided not
to seek review of the FAA’s decision, and when it made little
effort to keep its claims alive before the district court in this
case. Precisely because Rest Haven will not be affected by
O’Hare expansion, the district court properly dismissed its
claims. In this appeal, however, Rest Haven attempts to revive
its claims, even though it still fails to identify an injury or
threat of injury to its interests. Since mootness and standing
are generally questions of law, the dismissal of Rest Haven’s
claims against the City is reviewed de novo. See, e.g., Higgason
v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (reviewing dismissal
of claims as moot de novo); Reid v. Illinois State Board of
18
Education, 358 F.3d 511, 515 (7th Cir. 2004) (reviewing dismissal
for lack of standing de novo). Under this standard, the district
court’s dismissal of Rest Haven’s claims should be affirmed, both
because its arguments are waived, and because the district
court’s ruling was correct.
Beginning with waiver, Rest Haven has completely waived any
argument that the district court erred in dismissing its claims
for lack of actual case or controversy by failing to present any
argument to challenge that ruling either before the district
court or in the argument section of its brief on appeal. And the
only argument it does present -- an argument addressed to the
merits of its moot claims -- is waived, too, because mere
adoption of arguments raised in another appeal is insufficient to
preserve those arguments on appeal.
In addition to Rest Haven’s waiver, the district court’s
dismissal should be affirmed because it is correct. Consistent
with the modified ALP that has been approved by the FAA, the City
no longer intends to acquire Rest Haven’s property and relocate
the cemetery. The claims of injury alleged in the amended
complaint are, therefore, moot. And Rest Haven never sought
leave to file an amended complaint, nor would it have standing to
do so where it cannot allege an actual or imminent injury to any
legally protected interest.
The villages’ claims against the FAA were properly dismissed
19
as well. Those claims are properly raised only in the Court of
Appeals for the D.C. Circuit because the courts of appeals have
exclusive jurisdiction over final orders by the FAA, and these
plaintiffs have, in fact, filed petitions in the D.C. Circuit for
review of the two FAA decisions that cover the same matters the
plaintiffs attempt to raise in this case. Because the arguments
for affirming the district court’s dismissal of these claims will
be thoroughly addressed by the FAA in its separate brief in this
case, we do not address those issues in this brief.
I. REST HAVEN HAS WAIVED ALL ARGUMENTS FOR REVERSING THEDISTRICT COURT’S DISMISSAL OF ITS CLAIMS.
Rest Haven has waived all arguments that the district court
erred in dismissing its claims. The district court’s sole basis
for dismissing the claims of Rest Haven was that it failed “to
show that there is harm such that Article III standing
requirements are satisfied . . . .” Bensenville Br. at A-14.
Indeed, the district court had forewarned Rest Haven of its view
that Rest Haven should be dismissed when it issued a rule to show
cause pointing out that “Rest Haven is no longer affected by the
OMP.” Bensenville Sep. App. at SA-87. In response, Rest Haven
did not dispute that the City no longer plans to acquire the
cemetery, and indeed stated that it was “happy to dismiss all
counts relating to Rest Haven” if it could obtain an enforceable
order that Chicago would leave the graves “forever undisturbed”
and allow continued access to the cemetery. Id. at SA-91. Yet,
20
Rest Haven cited no authority for issuing such an order, and Rest
Haven did not join the other plaintiffs in seeking leave to file
a second amended complaint. See id. at SA-102.
Rest Haven had its chance to make any argument that the
claims it raised were not moot, or to join the motion to amend
the complaint to add any new facts or claims it believed might
avoid a finding of mootness. As the district court explained,
Rest Haven was “given full and fair opportunity to present
arguments as to why [it is] in any way affected by proposed
actions by the City and the FAA and failed to do so.”
Bensenville Br. at A-14. It is settled that arguments not raised
before the district court are waived on appeal. See, e.g.,
United States v. Ramsey, 406 F.3d 426, 432 (7th Cir. 2005); Belom
v. National Futures Association, 284 F.3d 795, 799 (7th Cir.
2002). Thus, any argument that Rest Haven continues to have an
actual case or controversy is waived.
As an attempt to excuse its failure to seek leave to file
another amended complaint along with the other plaintiffs, Rest
Haven writes, in a footnote to its statement of the case, that it
would have joined the proposed second amended complaint “[h]ad
[it] known that the district court would dismiss [its] claims in
the Amended Complaint against Chicago on the merits and the
claims against FAA officials for lack of jurisdiction . . . .”
Bensenville Br. at 5 n.1. This excuse is as misguided as it is
Even as to the dismissal of St. John’s claims on the5
merits, Rest Haven was well aware of this potential. Not onlywas a motion to dismiss the amended complaint pending before thedistrict court, but the City had opposed the motion for leave tofile a second amended complaint on the basis that the amendmentsfailed to address the deficiencies in the prior complaint. R.132.
21
absurd. First, the court did not dismiss Rest Haven’s claims
against the City on the merits -- those claims were dismissed for
lack of an actual case or controversy, as we have explained.
Second, Rest Haven’s dismissal should have come as no surprise.
The district court had issued a rule to show cause, clearly
stating the problem it saw with Rest Haven’s claims once the ROD
had been issued: “it appears that Rest Haven is no longer
included in the final plans for the OMP.” Bensenville Sep. App.
at SA-87. But Rest Haven came forward with no allegations or5
arguments explaining how an actual case or controversy remained.
If Rest Haven did not anticipate this result, it has only itself
to blame.
Any argument that Rest Haven has a live case or controversy
is waived for the additional reason that Rest Haven has failed to
properly advance any argument on this issue in its opening brief
on appeal. In the argument section of its brief, Rest Haven
makes no argument that it alleged any sufficient actual or
imminent injury to avoid dismissal. Indeed, the closest Rest
Haven comes anywhere in its brief to addressing this fundamental
standing problem is its reference, in its statement of the case,
22
to a memorandum of understanding (“MOA”) with provisions about
the erection of security and blast fences around Rest Haven, as
well as the hours of access to the cemetery. See Bensenville Br.
at 4 (citing SA-736). Rest Haven complains that “the permanent
protection which [it] assumed FAA and Chicago had committed to
was only temporary and could be cancelled unilaterally by Chicago
on 30 days notice.” Id. Rest Haven briefly alludes again to
this purported revocability in its summary of argument. Id. at
23. These comments are insufficient to preserve any argument
that Rest Haven has an actual controversy for two reasons.
First, a party is not supposed to present argument in its
statement of the case. See Fed. R. App. P. 28(a)(6). For this
reason, surely an argumentative statement of the case, like an
argumentative statement of facts, should be disregarded. See Day
v. Northern Indiana Public Service Corp., 164 F.3d 382, 384-85
(7th Cir. 1999). Instead, to challenge a district court’s
ruling, an appellant must “identify the legal issue, raise it in
the argument section of [the] brief, and support [the] argument
with pertinent authority.” E.g., Ajayi v. Aramak Business
Services, Inc., 336 F.3d 520, 529 (7th Cir. 2003). Without the
argumentative comments in the statement of the case, Rest Haven
is left with no argument, for none appears where it should have
been made -- in the argument section of its brief. And, second,
even if Rest Haven’s criticism of the MOA is credited, it has
23
failed to advance an argument that it has standing. Its apparent
claim that it is aggrieved by a revocable commitment to build
around Rest Haven is severely underdeveloped and completely
lacking in citation to authority. “[A]rguments raised in a
conclusory or underdeveloped manner on appeal are waived,” Ross
Brothers Construction Co. v. International Steel Services, Inc.,
283 F.3d 867, 875 (7th Cir. 2002), as are arguments not supported
by authority, e.g., Kelso v. Bayer, 398 F.3d 640, 643 (7th Cir.
2005). And, having failed to properly raise the issue in its
opening brief, Rest Haven cannot raise it in reply. See, e.g.,
Lin v. Ashcroft, 385 F.3d 748, 750 (7th Cir. 2004).
Instead of explaining how any actual case or controversy
exists, Rest Haven forwarded only one argument to support
reversal of its dismissal from the case -- that “[t]he decision
that the Court makes on the arguments of St. John’s Religious
Appellants in 05-4418 as to Chicago will be dispositive of the
claims made by Rest Haven Appellants against Chicago in the
district court below.” Bensenville Br. at 26. Then Rest Haven
attempts to incorporate by reference the arguments made by St.
John’s in appeal No. 05-4418. This approach is strange, to say
the least, since Rest Haven’s claims were not dismissed for the
same reasons as the claims of St. John’s, as we explain below.
But, in any event, Rest Haven has waived any argument on the
merits of its claims, including those presented in St. John’s
The practice would be no better in the same appeal, in a6
second appellant’s brief that is 13,895 words. See generallyLicari v. City of Chicago, 262 F.3d 646, 648 (7th Cir. 2001)(inchambers) (briefing should be consolidated to avoid undueduplication); United States v. Torres, 170 F.3d 749, 751 (7thCir. 1999) (per curiam) (when parties have a mutual position,those parties are generally required to file a joint brief withinthe 14,000 word allowance). And, of course, plaintiffs here madetheir own choices about which issues to press in which case. Precisely because such incorporation by reference is improper,the City seriously considered moving to strike the opening briefon this ground, but did not wish to delay this proceeding. We,therefore, simply request the court to disregard Rest Haven’sattempt to incorporate the arguments in St. John’s.
24
appeal. An appellant cannot preserve arguments simply by
adopting arguments made in another appeal. Federal Rule of
Appellate Procedure 28(9)(a) requires that an appellant’s brief
contain “the appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.” While Rule 28(i) provides a limited
exception that allows one party to an appeal to adopt the
argument of another party in that same appeal, incorporation of
arguments raised in a brief filed in a separate appeal violates
Rule 28. See, e.g., United States v. Foster, 789 F.2d 457, 462-
63 (7th Cir.) (incorporating arguments in brief in another case
violates Rule 28), cert. denied, 479 U.S. 883 (1986); United
States v. McDougal, 133 F.3d 1110, 1114 (8th Cir. 1998)
(appellant cannot adopt arguments from briefs in a related but
separate appeal under Rule 28). 6
Thus, in myriad ways, Rest Haven has waived all arguments
25
pertaining to its claims against both the City and the FAA. Rest
Haven cannot preserve arguments by standing idly by, failing to
address standing concerns raised by the district court, failing
to seek leave to amend its complaint to add any facts or claims
it believes shows injury, and then vaguely asserting on appeal
that it will adduce a factual basis for standing at a later
point. See Bensenville Br. at 5-6 (noting that if the dismissal
is reversed, Rest Haven would amend complaint “based on more
current facts”); id. at 7 n.4; id. at 8 n.6. Based on waiver
alone, the judgment of the district court should be affirmed.
II. REST HAVEN’S CLAIMS WERE PROPERLY DISMISSED BECAUSE THEREREMAINS NO LIVE CASE OR CONTROVERSY CONCERNING REST HAVENCEMETERY.
“It goes without saying that those who seek to invoke the
jurisdiction of the federal courts must satisfy the threshold
requirement imposed by Article III of the Constitution by
alleging an actual case or controversy.” City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983). And a justiciable case or
controversy is lacking where the party bringing the claim lacks
standing to bring the claim, or where the claim has become moot.
See, e.g., Tobin for Governor v. Illinois State Board of
Elections, 268 F.3d 517, 528 (7th Cir. 2001) (citing Renne v.
Geary, 501 U.S. 312, 320 (1991)), cert. denied, 535 U.S. 929
(2002). While a plaintiff invoking federal jurisdiction bears
the burden of establishing standing, see Wisconsin Right to Life,
26
Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004), a defendant
asserting mootness bears the burden of persuasion, id. at 491.
At bottom, however, “where issues have become moot as a result of
judicial decision, or otherwise, the courts unquestionably have
the authority, and it often becomes their duty, to dismiss cases
sua sponte and without any motion to dismiss being made.”
Roberts v. American Airlines, Inc., 526 F.2d 757, 761 (7th Cir.),
cert. denied, 425 U.S. 951 (1976). Under these principles, the
district court properly dismissed Rest Haven’s claims.
To establish standing, a plaintiff must show: (1) injury in
fact; (2) a causal connection between the injury and the conduct
complained of such that the injury is fairly traceable to the
defendant’s actions; and (3) that a favorable decision is likely
to redress the injury. See, e.g., Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Injury in fact involves
an invasion of a legally protected interest that is “concrete and
particularized, actual or imminent, and not conjectural or
hypothetical.” Tobin for Governor, 268 F.3d at 527. “[T]he
plaintiff must establish that he has sustained or is immediately
in danger of sustaining some direct injury.” Id. at 527-28.
Abstract injury, or speculation that he may suffer injury at some
time in the future, is insufficient to establish standing. See,
e.g., id. at 528. And, of course, “the requisite personal
interest that must exist at the commencement of the litigation
27
(standing) must continue throughout its existence (mootness).”
Wisconsin Right to Life, 366 F.3d at 491. Thus, even where a
party may have had standing at the beginning of a lawsuit, as
Rest Haven did in this case, a claim becomes nonjusticiable as
moot when “it no longer presents a live case or controversy.”
Tobin for Governor, 268 F.3d at 528.
As this court has consistently recognized, a claim for
injunctive relief, in particular, is moot when the target of the
injunction no longer exists. See, e.g., Wernsing v. Thompson,
423 F.3d 732, 745 (7th Cir. 2005) (request for injunctive relief
from policy allegedly constituting illegal prior restraint moot
when policy no longer in force); E.E.O.C. v. North Gibson School
Corp., 266 F.3d 607, 621 (7th Cir. 2001) (request for injunctive
relief from discriminatory retirement plan moot when plan no
longer in effect); Kerr v. Farrey, 95 F.3d 472, 475 (7th Cir.
1996) (request for injunctive relief from mandatory drug
rehabilitation meetings moot when prisoner released on parole).
As for claims for declaratory relief, a grievance that is “too
remote and insubstantial, too speculative in nature, to justify
an injunction” is “equally inappropriate for a declaration of
rights.” Id. at 434. Accord Mazanec v. North Judson-San Pierre
School Corp., 798 F.2d 230, 234 n.1 (7th Cir. 1986). These
limitations follow naturally from the general principle that a
federal court lacks “the power to decide an unnecessary question
28
that cannot affect the rights of the litigants before it.”
Rembert v. Sheahan, 62 F.3d 937, 940 (7th Cir. 1995).
In this case, any threatened injury to Rest Haven
disappeared with the modified ALP that works around the cemetery.
The City no longer intends to acquire Rest Haven, and Rest Haven
cites no authority for the proposition that, under these
circumstances, it is entitled to a judicially enforceable order
making the City’s commitment permanent. To the contrary, it is
clear that Rest Haven’s claims asserted in the amended complaint
are moot, and it lacks standing to assert -- and has not even
attempted to file -- any similar claims in a second amended
complaint. Indeed, Rest Haven does not dispute that there is no
current plan to acquire the cemetery. See Bensenville Br. at 4
(noting that the FAA’s ROD requires preservation of Rest Haven);
id. at 5, 13 (noting “agreement” and “commitment” of City and FAA
to preserve Rest Haven). Rest Haven expresses no doubt that the
FAA has approved, and the City intends to proceed with, O’Hare
expansion that does not put Rest Haven at risk. Rest Haven’s old
claims are moot; and, no matter how it updates the facts, Rest
Haven lacks standing to bring any similar claims in another
amended complaint.
Rest Haven’s curt and misleading reference to an MOA issued
along with the FAA’s ROD, see Bensenville Br. at 4, reveals no
live case or controversy, either. Rest Haven argues that, under
29
that MOA, the protection the FAA’s ROD affords Rest Haven “could
be cancelled unilaterally by Chicago on 30 days notice.” Id.
Even assuming Rest Haven has not waived the matter in the variety
of ways we discuss above, its assertion is simply not true. To
begin with, it is the substance of the ROD itself, not the
separate MOA, that contains the decision of the FAA to approve an
ALP that works around Rest Haven. The MOA contains certain
“stipulations [to be] implemented in order to take into account
the effect of [the OMP] on historic properties.” Bensenville
Sep. App. at SA-730. Where Rest Haven is concerned, these are
limited to specifications about the erection of security and
blast fences around Rest Haven and the hours of access to the
cemetery. Id. at SA-734. Thus, even if the MOA were cancelled,
that would affect only those commitments -- the ROD still
approves only an ALP that works around Rest Haven. Thus, MOA or
no MOA, the City still would not have approval of an ALP allowing
it to build over Rest Haven, and there is no threat that the City
will seek to amend the ALP or otherwise attempt to build anything
that the ALP does not approve.
Moreover, Rest Haven offers nothing but pure speculation
that the City ever would seek to change its obligations under the
MOA. And, indeed, termination of the MOA is not as simple as
Rest Haven suggests. The MOA does not simply authorize
unilateral termination on 30 days notice -- it requires that,
In its statement of facts, Rest Haven offers the7
unsupported assertion that “[b]ecause Rest Haven Appellants werelead [sic] to believe that FAA’s and Chicago’s promise to avoidthe destruction of Rest Haven would be memorialized into a trueenforceable commitment by court order, Rest Haven is not a partyto the Petition for Review in the D.C. Circuit in 05-1383.” Bensenville Br. at 15 n.13. This comment should be disregarded. No one -- not the court, the City, or the FAA -- ever led RestHaven to believe that an order would be entered on Rest Haven’sclaims. To the contrary, the district court explicitly noted itsinclination to dismiss Rest Haven’s claims for lack of case orcontroversy in a rule to show cause. Bensenville Sep. App. atSA-83. Moreover, this explanation for Rest Haven’s decision notto petition the D.C. Circuit for review is belied by the factthat, even after the district court dismissed Rest Haven’s claimson November 16, 2005, Rest Haven still had 12 days, untilNovember 28, 2005, to file a petition for review in the D.C.Circuit, see 49 U.S.C. § 46110 (allowing 60 days to file apetition for review), but it did not do so. Nor did Rest Havenjoin in a subsequent petition for review of the LOI.
30
before terminating, the parties must attempt to develop an
amendment and, if they cannot, the FAA must then either execute a
new MOA or allow and respond to comments by the Advisory Council
on Historic Preservation. Bensenville Sep. App. at SA-736 to SA-
737. And Rest Haven could have signed the document to be a part
of any such process, but it chose not to do so. Moreover, if
Rest Haven believed these terms were insufficient to protect its
interests, it could have petitioned for review of the FAA’s ROD.
See 49 U.S.C. § 46110(a) (2000). It chose not to do that
either.7
Any threat the City might one day pursue this involved
termination process, and then also seek to acquire and relocate
Rest Haven -- despite the lack of approval of an ALP that
As this court noted in Federation, direct evidence of a8
threat that the government will repeat challenged conduct oncethe threat of litigation passes distinguishes cases like City ofMesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982), andNortheastern Florida Chapter of the Associated GeneralContractors v. City of Jacksonville, 508 U.S. 656 (1993), fromcases, like this one, where such evidence is lacking. SeeFederation, 326 F.3d at 930 (citing Aladdin’s Castle, 455 U.S. at289 n.11 (city had announced intention to reenact challenged lawif case was dismissed); Northeastern Florida, 508 U.S. at 662(city had already reenacted substantially similar law)).
31
includes Rest Haven -- is speculation piled on speculation, and
thus far short of what is necessary to establish standing to seek
relief. If this kind of speculation were enough to present a
live claim, it would avoid mootness in almost every case where
the threat of injury has already been removed. Yet this court’s
cases make clear that these types of circumstances are exactly
what will render a case moot. In Federation of Advertising
Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924
(7th Cir.), cert. denied, 540 U.S. 879 (2003), for example, this
court rejected the plaintiff’s attempt to continue litigation on
the basis that “the City remain[ed] free to reenact” a challenged
ordinance that had been repealed after a Supreme Court decision
cast doubt on the validity of the ordinance, holding that there
was no “reasonable expectation” that the government would repeat
its purportedly illegal actions. Id. at 929-30. See also
Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir.
1991); Thomas v. Fiedler, 884 F.2d 990, 995 (7th Cir. 1989);
Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988). 8
While Rest Haven, which has the same counsel as St.9
John’s, now asserts that its claims against the City are so muchlike St. John’s that it merely needs to adopt the arguments inSt. John’s brief, St. John’s filed a separate notice of appealand, in its appellant’s brief filed in No. 05-4418, noted thatthe Rest Haven plaintiffs “are addressing their uniquecircumstances in a separate appeal to this Court, Appeal No. 05-4451.” St. John’s Br. at 8 n.3.
32
Rest Haven’s attempt to show an imminent injury is even more
flimsy than Federation’s was. Here, there was no illegal conduct
undertaken by the City, and the allegedly illegal conduct Rest
Haven feared -- that the City would be allowed to acquire Rest
Haven -- has been obviated by the FAA. There is simply no
reasonable expectation that the City will condemn Rest Haven.
Indeed, Rest Haven does not even claim that it is likely, or even
probable, that the City will do so. It argues only that it is
possible that the City could cancel the MOA with 30 days notice.
That the City would cancel an MOA requiring the erection of
fences around and regulating the hours of access to Rest Haven
plainly does not put Rest Haven at risk for acquisition and
relocation.
Precisely because the claims by Rest Haven are moot, the
arguments raised by St. John’s Church in its separate appeal,
which Rest Haven adopts, have no bearing here. The cemetery9
owned by St. John’s will be acquired and relocated; Rest Haven
will not. Thus, if St. John’s were successful on appeal, that
decision would certainly not control Rest Haven’s appeal because,
Of course, there is overlap between the two sets of10
claims in the sense that affirmance of the district court’sdismissal of the religious claims by St. John’s would provide anadditional basis to reject Rest Haven’s moot claims. But theopposite is not true. Rest Haven’s claims have never been on allfours with St. John’s. Those buried at the two cemeteries arenot members of the same denomination, and, on the questionwhether cemetery relocation substantially burdens religion, eachset of plaintiffs submitted its own affidavits about how itsparticular religious beliefs and practices would be affected. Compare Bensenville Sep. App. at SA-200 to SA-203 (affidavits oftwo board members of the Rest Haven Cemetery Association) withAppellants’ Sep. App. in St. John’s, No. 05-4418 at SA-200 to SA221 (affidavits of those who are members of St. John’s or whoserelatives are buried at St. Johannes Cemetery). Thus, thereligion claims that Rest Haven wants to litigate here would haveto be analyzed separately from St. John’s.
33
whether or not St. John’s claims have merit, Rest Haven still has
no justiciable case or controversy. 10
Rest Haven’s claims against the FAA, like its claims against
the City, were also properly dismissed for lack of case or
controversy. Indeed, where the RFRA claim against the FAA is
concerned, it is astounding that Rest Haven argues that “[s]ince
the FAA has conceded all of the central elements as to Rest Haven
Appellants for judicial relief under federal RFRA, their RFRA
claim should be remanded to the district court with instructions
to enter judgment in favor of Rest Haven Appellants, with an
order that provides permanent protection for Rest Haven
Cemetery.” Bensenville Br. at 28. This simply ignores
everything that happened after the City first proposed to acquire
Rest Haven. The FAA’s conclusions in its ROD that a plan to
acquire and relocate Rest Haven would substantially burden
34
religion and should not be approved because it was not the least
restrictive means to serve the government’s compelling
governmental interest amounts to no concession that the plan
later approved by the FAA specifically to work around Rest Haven
violates RFRA. In fact, because the FAA expressly declined to
approve an ALP that included acquisition and relocation of Rest
Haven or otherwise injure that cemetery, there is absolutely no
government action, or current threat of government action, that
has or will conceivably substantially burden religious practice
at Rest Haven Cemetery. Indeed, it is ironic that Rest Haven
complains about a “legitimacy deficit” or any other problems with
the manner in which the FAA dealt with Rest Haven’s religion
claims when that very process led the FAA to approve an ALP that
works around Rest Haven. In short, the FAA was wholly responsive
to Rest Haven’s concerns. Having prevailed before the FAA, Rest
Haven certainly has no remaining injury, or threat of injury, to
assert in this case.
35
CONCLUSION_____
For the reasons discussed above, the judgment of the
district court should be affirmed.
Respectfully submitted,
MARA S. GEORGESCorporation Counsel
of the City of Chicago
BY: _______________________________SUZANNE M. LOOSEAssistant Corporation CounselSuite 80030 North LaSalle StreetChicago, Illinois 60602(312) 744-4439
CERTIFICATE OF COMPLIANCE__________
In accordance with Fed. R. App. P. 32(a)(7)(c), I certifythat the foregoing brief complies with the type volume limitationprovided by Fed. R. App. P. 32(a)(7)(B). This brief contains8,380 words as recorded by the word count of the WordPerfect 12.0word-processing system used to prepare the brief.
_____________________________ SUZANNE M. LOOSE, Attorney
CERTIFICATE OF SERVICE__________
I certify that I served the Brief of Defendant-Appellee City ofChicago to the addresses listed below, by placing two copies of thebrief in envelopes directed to the persons named below at the addressesindicated, and causing them to be delivered in the manner indicated onFebruary 8, 2006.
__________________________________SUZANNE M. LOOSE, Attorney
Person(s) served:
BY HAND DELIVERY:
Joseph V. KaraganisA. Bruce WhiteJohn W. KalichKaraganis White & Magel, Ltd.414 North Orleans StreetChicago, IL 60610
Patrick W. JohnsonAssistant United States AttorneyU.S. Department of JusticeDirksen Federal Building219 S. Dearborn St., 5th FloorChicago, IL 60604
Deborah AhlstrandIllinois Attorney General’s OfficeCivil Appeals Division100 West Randolph St.State of Illinois CenterChicago, IL 60601
John MauckAndy NormanHannah Valdez GarstOne N. LaSalle, #2001Chicago, IL 60602
BY OVERNIGHT MAIL:
Anthony PicarelloDerek GaubatzThe Beckett Fund for Religious LibertySuite 6051350 Connecticut Avenue, N.W.Washington, D.C. 20036-1735
Marion C. Blakey, AdministratorFederal Aviation Administration800 Independence Avenue SWWashington, DC 20591
Andrew B. Steinberg, Chief CounselOffice of the Chief CounselFederal Aviation Administration800 Independence Avenue SWWashington, DC 20591
Charles ProckOffice of the Regional CounselFederal Aviation Administration2300 East Devon Ave., Suite 479Des Plaines, IL 60018
Todd S. AagaardEnvironmental and Natural Resources DivisionUnited States Department of JusticeP.O. Box 23795 (L’Enfant Plaza Station)Washington, D.C. 20026