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