United States Court of Appeals
For the First Circuit
No. 03-2616
JOHN BRENEMAN and WILLIAM D. BRENEMAN,
Plaintiffs, Appellants,
v.
UNITED STATES ex. rel. THE FEDERAL AVIATION ADMINISTRATION;
COMMONWEALTH OF MASSACHUSETTS ex. rel. MASSACHUSETTS AERONAUTICS
COMMISSION; 70 ACRES OF LAND a/k/a TANNER HILLER AIRPORT,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
William D. Breneman, with whom Breneman & Georges was on the
brief, for appellants.
Anita Johnson, Assistant U.S. Attorney, with whom Michael J.
Sullivan, United States Attorney, was on the brief for appellee
United States, ex rel. Federal Aviation Administration.
Maria Hickey Jacobson, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, and Salvatore M. Giorlandino,
Assistant Attorney General, were on the brief for appellee
Commonwealth of Massachusetts, ex rel. Massachusetts Aeronautics
Commission.
Richard T. Tucker, with whom Bernstein, Burwick & Tucker, LLC
was on the brief, for appellee 70 Acres of Land, a/k/a The Tanner
Hiller Airport.
August 25, 2004
LIPEZ, Circuit Judge. In the continuation of a long
legal battle, plaintiff landowners brought suit in December 2002
against the Massachusetts Aeronautics Commission (MAC), the Federal
Aviation Administration (FAA) and Tanner Hiller Airport, a
privately-owned facility, claiming that various actions taken by
these entities infringed upon the landowners' property rights. The
district court granted the motions to dismiss of the three
defendants, and dismissed the complaint with prejudice. Concluding
that the plaintiffs' claims were barred by principles of res
judicata and sovereign immunity, we affirm. We also grant the
Airport's motion for fees and costs as a sanction for the
plaintiffs' frivolous appeal of the decision in favor of the
Airport.
I.
In the late 1980s, the Airport hired a contractor to
extend its runway closer to the boundary of the Brenemans'
property.1 As part of that project, the contractor removed a
fence, a hill, and other obstacles that were on the Brenemans' side
of the property line. The Brenemans allege that they discovered
the alterations in 1991 and brought suit in the Massachusetts
Superior Court in September 1992 for, inter alia, trespass,
1
Although the property owned by the Brenemans is largely
undeveloped, there is a residence on it.
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conversion, and to quiet title against the Airport.2 See Breneman
v. Wolfson, No. WCV922705, 1999 WL 1203920 (Mass. Super. Ct. Oct.
21, 1999).3 They added the gravel company as a defendant in April
1997. The court awarded summary judgment to the gravel company on
statute of limitations and repose grounds in Breneman v. Tanner,
No. 922705, 1999 WL 1336436 (Mass. Super. Ct. Feb. 1, 1999), and
granted summary judgment to the Airport on the same grounds a few
months later in Breneman v. Wolfson, No. WCV922705, 1999 WL 1203920
(Mass. Super. Ct. Oct. 21, 1999).
In late 1997, while their superior court case was
pending, the plaintiffs wrote a letter to the FAA, complaining that
they learned during discovery that the Airport's runway was longer
than the length listed in the New York Section Chart for Pilots,
the FAA's official directory of airports in that region. The
agency apologized for the error and published a corrected version
of the sectional chart on May 18, 2000.
When the Brenemans learned of that correction, they filed
notices with the FAA and the MAC, proposing to construct a hill and
a boundary fence to replace the ones that the contractors had
removed. The FAA responded with two hazard studies on January 5,
2
The Airport filed a counterclaim in this action, claiming
that it had acquired the property through adverse possession. The
court dismissed that claim without prejudice in response to a
stipulation from the parties that was docketed on April 2, 2001.
3
We have provided a chronology of the various legal
proceedings in the appendix to this opinion.
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2001, concluding that both proposed construction projects would
create potential dangers to air traffic at the Airport. The hazard
studies determined that the proposed ten foot high fence would
exceed the "primary surface," an imaginary plane extending two
hundred feet from the end of the runway that provides a safety
buffer for aircraft, by thirteen feet, and that the proposed hill
would exceed the "approach surface," an imaginary plane extending
outward and upward from the end of the runway, by sixty-two feet.
After reviewing the FAA studies and providing the
Brenemans with a public hearing, the MAC denied the Brenemans a
permit to build the hill on August 15, 2001. The Brenemans
challenged the MAC's denial of their permit in Worcester Superior
Court, alleging that the commission violated Massachusetts law and
that it took their property without due process in violation of the
Fifth and Fourteenth Amendments to the United States Constitution
and Article 10 of the Massachusetts Declaration of Rights. The
court denied all of the Brenemans' claims. See Breneman v.
Massachusetts Aeronautics Comm'n, No. 0101893B, 2004 WL 856640,
(Mass. Super. Ct. Mar. 15, 2004).
On April 9, 2001, while their permit application with MAC
was still pending, the Brenemans filed appeals of the FAA's hazard
studies in the United States Court of Appeals for the D.C. Circuit.
That court issued its unpublished decision on February 26, 2002,
after the MAC denied the construction permit. Concluding that the
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FAA's fence study was purely advisory in nature and that the
plaintiffs had not suffered any actual harm from its publication,
the court held that the Brenemans lacked standing to challenge that
hazard determination. Breneman v. FAA, No. 01-1165, 2002 WL 449015
at *7-*8 (D.C. Cir. Feb. 26, 2002) (per curiam). Observing that
MAC's denial of the Brenemans' hill permit was based in part on the
FAA study, the court concluded that they had demonstrated a
sufficiently concrete harm to establish standing with regard to the
FAA hill study. However, the court concluded that the study was
committed to agency discretion and thus was unreviewable under the
Administrative Procedure Act ("A.P.A."). Id. The court also
dismissed their "constitutional challenges" to the FAA's hill
determination without identifying what those challenges were. Id.
at *2. After reviewing the record from those proceedings, we
conclude that the court was referring to the Brenemans' claim that
the FAA should have granted them notice and an opportunity to
comment while it was conducting the study.4
On December 13, 2002, the Brenemans continued their legal
campaign by filing two more suits, this time in the United States
Court of Federal Claims and the United States District Court for
the District of Massachusetts. Their complaint in the Court of
4
The court noted that the Brenemans violated the D.C.
Circuit's "chutzpah doctrine" by challenging the propriety of the
hazard study "when they conceded at oral argument that they intend
to build the hill in part to impede air traffic at the Airport."
Id. at *1.
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Federal Claims alleged a physical and regulatory taking against the
FAA.5 The physical taking claim was based on 49 U.S.C. §
40102(a)(32), which defines "navigable airspace" as including
"airspace needed to ensure safety in takeoff and landing of
aircraft." The Brenemans alleged that the FAA's correction of the
runway length in the updated sectional chart constituted a tacit
approval of the runway extension. Observing that this extension
forced the runway primary surface beyond the property line, the
Brenemans alleged that the FAA took title to their airspace and the
first three feet of soil lying within two hundred feet of the end
of the runway and converted it into navigable airspace. They based
their regulatory taking claim on the FAA's determination that the
construction of the hill and the fence would create hazards for air
travel.
The Court of Federal Claims rejected their physical
taking claim, concluding that it could not find a precedent to
support the proposition that "mere creation or recognition of
navigable airspace" can result in a taking. It denied their
regulatory taking claim because the hazard reports were only
5
The Brenemans filed their Court of Federal Claims action a
few hours before they filed their Federal District Court complaint
in an effort to maintain the Court of Federal Claims's subject
matter jurisdiction over the case. See 28 U.S.C. § 1500 ("The
United States Court of Federal Claims shall not have jurisdiction
of any claim for or in respect to which the plaintiff or his
assignee has pending in any other court any suit or process against
the United States . . . .").
-7-
advisory studies that had no enforceable legal effect. See
Breneman v. United States, 57 Fed. Cl. 571 (2003), aff'd, No.
03-5156, 2004 WL 1153329 (Fed. Cir. May 10, 2004).
As stated, the Brenemans also filed a seven count federal
complaint in the District of Massachusetts against the MAC, the
FAA, and the Airport on the same day that they filed their
complaint in the Court of Federal Claims. The complaint repeated
the physical and regulatory takings claims6 as well as the due
process claim that it had previously litigated in the D.C. Circuit.
It also included claims that 1) the hazard studies were
substantively infirm; 2) the MAC and the Airport conspired to
violate the Brenemans' constitutional rights by concealing the date
on which the Airport extended its runway; and 3) all of the parties
"appropriated and confused" the Brenemans' property rights. There
was also a claim to quiet title against the FAA.
In dismissing the claims against the Airport, the
district court summarily rejected the inverse condemnation, section
1983, and "use of property" claims by noting that these claims may
not be brought against private parties. It interpreted the
Brenemans' allegations that the actions of the defendants
"constitute an appropriation and confusion of plaintiffs' property
6
The count marked as "Inverse Condemnation" was actually a
sprawling fifteen page, forty paragraph litany of grievances,
including both physical and regulatory takings, lodged against the
parties. The general thrust of that count seems to concern the
inverse condemnation/regulatory taking.
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with the Tanner Hiller Airport property" as possibly raising a
trespass claim and dismissed that claim on statute of limitations
grounds. Finally, it concluded that there was no support for the
allegation that the MAC and the Airport conspired to violate the
Brenemans' rights. The district court dismissed the allegations
against the FAA and the MAC on res judicata and Eleventh Amendment
grounds respectively. Breneman v. United States ex rel. the Fed.
Aviation Admin., No. Civ. A02-12400RWZ, 2003 WL 22203684 (D. Mass.
Sept. 23, 2003).
The Brenemans raise three claims on appeal. First, they
claim that the district court improperly dismissed their quiet
title claim against the FAA based on its erroneous conclusion that
the Airport held actual possession of the disputed property.7
Second, they claim that the court applied the wrong standard when
it dismissed their takings claims against the FAA and the MAC.
Third, they argue that the court failed to apply a sufficiently
rigorous test to the MAC's claim of Eleventh Amendment immunity.
They do not challenge the district court's dismissal of their
claims against the Airport.
7
The district court apparently viewed the quiet title claim
directed at the FAA as a claim directed at the Airport. This error
does not affect our disposition of this appeal.
-9-
II.
A. The Claims against the FAA
The Brenemans ignore the grounds upon which the district
court dismissed their claims against the FAA. Rather than address
the res judicata effects of the Court of Federal Claims decision,
which formed the basis of the district court's opinion, they raise
irrelevant arguments regarding the substantive standards that the
court should have applied to their takings and quiet title claims
against the FAA. Concluding that the district court's ruling
regarding the res judicata effects of the Court of Federal Claims
decision was correct, we ignore the Brenemans' extraneous
arguments.
"Under the federal law of res judicata, a final judgment
on the merits of an action precludes the parties or their privies
from relitigating claims that were raised or could have been raised
in that action." Apparel Art Int'l, Inc. v. Amertex Enters. Ltd.,
48 F.3d 576, 583 (1st Cir. 1995) (footnote omitted). Res judicata
"relieve[s] parties of the cost and vexation of multiple lawsuits,
conserve[s] judicial resources, and . . . encourage[s] reliance on
adjudication." Allen v. McCurry, 449 U.S. 90, 94 (1980). The
elements of a res judicata claim under federal law are: "(1) a
final judgment on the merits in an earlier proceeding, (2)
sufficient identicality between the causes of action asserted in
the earlier and later suits, and (3) sufficient identicality
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between the parties in the two actions." Banco Santander de P.R.
v. Lopez-Stubbe (In re Colonial Mortgage Bankers Corp.), 324 F.3d
12, 16 (1st Cir. 2003). Recognizing that the judgment in the Court
of Federal Claims was final and that the FAA and the Brenemans were
both parties to the proceedings in the Court of Federal Claims and
in the Federal District Court, we can quickly dispose of the first
and third prongs. We apply a "transactional approach" to the
second prong of this test: "The necessary identity will be found to
exist if both sets of claims--those asserted in the earlier action
and those asserted in the subsequent action--derive from a common
nucleus of operative facts." Gonzalez v. Banco Cent. Corp., 27
F.3d 751, 755 (1st Cir. 1994) (citation omitted).
We have no difficulty concluding that the Brenemans'
claims are barred by the judgment in the Court of Federal Claims.
The complaints in both proceedings were based upon the FAA's
correction of the sectional chart and its publication of the two
hazard studies; therefore, they both originated from a "common
nucleus of operative facts." Indeed, it appears that the Brenemans
essentially filed identical takings claims in both proceedings, and
their quiet title claim seems to be a duplicate of the takings
claims filed under a different heading.8 Moreover, even if the
8
The paragraph in the district court complaint that was most
relevant to the quiet title action alleged that the United States
claimed the "right to control and regulate portions of the surface,
above the surface and below the surface of plaintiffs' property,
which interferes with plaintiffs' right to use, possess, dispose
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Brenemans did not raise the exact same claims in the Court of
Federal Claims, we conclude that they could have litigated all of
their claims against the FAA in the Court of Federal Claims.
Without belaboring the analysis, we agree with the district court's
admonition that "Plaintiffs cannot continue to file lawsuits until
they obtain the result they seek." Breneman, 2003 WL 22203684, at
*3.
B. The Claims Against the MAC
The Brenemans complain that the district court improperly
dismissed their complaint against the MAC on Eleventh Amendment
grounds without conducting a sufficiently detailed analysis of
whether the commission is an "arm of the state." We conclude that
the district court had a sufficient basis for concluding that the
MAC was entitled to immunity.
We often employ a two-step test to determine if an entity
is an "arm of the state." Fresenius Med. Care Cardiovascular Res.,
Inc. v. Puerto Rico and Caribbean Cardiovascular Ctr. Corp., 322
and enjoy their property as well as the requirements of [a
Massachusetts statute] that plaintiffs return their property to its
'original condition.'" The complaint also alleged that the FAA and
MAC studies and orders "have created a cloud on the title to
plaintiffs' property by preventing plaintiffs from removing buried
waste, restoring their land to its 'original condition.'" In a
separate paragraph, they claim that the agencies "in regulating
plaintiffs' property as an Airport have placed a cloud on
plaintiffs' title to their property by dedicating to the public on
behalf of the Tanner Hiller Airport rights to control use of the
plaintiffs' land on the surface, above the surface and below the
surface of plaintiffs' property."
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F.3d 56, 65 (1st Cir. 2003). In the first step, we look at
structural factors to determine whether "the state clearly
structured the entity to share its sovereignty." Id. at 68.
However, "[i]f the factors assessed in analyzing the structure
point in different directions, then the dispositive question
concerns the risk that the damages will be paid from the public
treasury. . . . This analysis focuses on whether the state has
legally or practically obligated itself to pay the entity's
indebtedness." Id.
We have no difficulty concluding that the Commonwealth
structured the MAC to share its sovereignty. As the district court
noted, "[i]n their Complaint, plaintiffs state that defendant CMAC
'is an administrative agency of the Commonwealth of Massachusetts
and acts for the Commonwealth of Massachusetts.'" Breneman, 2003
WL 22203684, at *4. Furthermore, according to the affidavit filed
by Wayne C. Kerchner, MAC's Chief Legal Counsel, the commission is
an agency within the Executive Office of Transportation and
Construction, its operating budget is subject to appropriation by
the General Court (the state legislature) with the approval of the
governor, and its hearings and enforcement proceedings are subject
to the State Administrative Procedure Act. Finally, according to
Massachusetts statutory law, the governor appoints all of the MAC
commissioners, and the commission has general police powers to
regulate aeronautics through rules and regulations that have the
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force of law. See Mass. Gen. Laws ch. 90, § 39. Concluding that
the MAC is entitled to Eleventh Amendment immunity, we affirm the
district court's dismissal of the Brenemans' claims.
C. The Airport's Motion for Costs
Shortly after oral argument, the Airport filed a motion
seeking $3,865.22 in attorney's fees and costs as a sanction for
the Brenemans' appeal, and explaining its grievance:
[I]t is clear from Breneman's [sic] Appellate
Brief that the issues raised in this Appeal
were directed to the other Appellees and not
to the Airport. The Airport raised this in
its Brief and at oral argument. As such the
Breneman's Appeal as it relates to the Airport
is insubstantial and not reasonably calculated
to result in a change in the judgment as to
the Airport.
In a subsequent response, without citing any authority, the
Brenemans argued that the appellees cannot move for sanctions under
Fed. R. App. P. 38 until a court has declared that their appeal was
frivolous.
There is no validity to the Brenemans' claim. Rule 38
states: "If a court of appeals determines that an appeal is
frivolous, it may, after a separately filed motion or notice from
the court and reasonable opportunity to respond, award just damages
and single or double costs to the appellee." (emphasis added).
There are two requirements here: 1) a court must determine that an
appeal was frivolous and 2) the appellant must be given notice and
an opportunity to respond before the imposition of sanctions.
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Neither the text of the rule nor our case law requires a court to
determine that an appeal was frivolous before an appellee can move
for sanctions. However, the appellant must have notice of the
request for sanctions and an opportunity to respond to it before
the court imposes sanctions.
The Rules Advisory Committee added the notice and comment
requirement to the rule in 1994 in response to the Supreme Court's
admonition that sanctions "should not be assessed lightly or
without fair notice and an opportunity for a hearing on the
record." Roadway Express., Inc. v. Piper, 447 U.S. 752, 767
(1980). See Fed. R. App. P. 38 advisory committee's notes (1994).
With regard to the first form of notice, a motion from one of the
parties, the Committee explained:
A separately filed motion requesting sanctions
constitutes notice. A statement inserted in a
party's brief that the party moves for
sanctions is not sufficient notice. Requests
in briefs for sanctions have become so
commonplace that it is unrealistic to expect
careful responses to such requests without any
indication that the court is actually
contemplating such measures. Only a motion,
the purpose of which is to request sanctions,
is sufficient.
Id. The Airport filed such a motion, and the Brenemans filed a
detailed response to it. They have been afforded due process. We
can turn to the merits of the Airport's motion.
The Airport's motion for sanctions did not allege that
the Brenemans' entire appeal was frivolous; it simply argued that
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their appeal "as it relates to the Airport is insubstantial and not
reasonably calculated to result in a change in the judgment as to
the Airport." As our imposition of a sanction in Ochoa Realty
Corp. v. Faria, 815 F.2d 812, 817-18 (1st Cir. 1987), demonstrates,
the Airport did not have to prove that the entire appeal was
frivolous in order to justify its request for sanctions. Although
the Brenemans forced the Airport to incur significant costs
litigating this appeal by naming it as an adverse party in the
docketing statement, they failed to explicitly address the district
court's dismissal of their claims against the Airport. Despite the
Airport's repeated protestations, the Brenemans never explained why
they considered the Airport to be an adverse party in this appeal.9
As we noted in Ochoa Realty, "[w]e will not countenance frivolous
impositions of this sort upon one's litigation adversaries." Id.
at 818.
The Airport submitted an affidavit documenting $3,420 in
attorney's fees and $445.22 in costs that it incurred defending
against the Brenemans' appeal. We have no reason to question the
reasonableness of these costs, and the Brenemans have not raised
9
The Brenemans argued in their response to the Airport's
motion for sanctions that "[t]he Airport is an indispensable party
to this action due to its action in conspiring with the Government
to convert Appellants' property into 'navigable airspace' and its
inconsistent positions with respect to ownership of the Appellants'
property." Although the Brenemans alleged conspiracy theories in
their complaint, they developed no argument on this issue on
appeal. That omission is the critical point for our sanctions
analysis.
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any issue as to reasonableness. Convinced that a sanction of
attorney's fees plus costs is required under the circumstances, we
award $3,865.22 to the Airport.
III.
We affirm the judgment of the district court. We award
attorney's fees and costs totaling $3,865.22 to appellee Tanner
Hiller Airport.
So ordered.
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Appendix
Chronology of Proceedings
September 25, 1992 The Brenemans file suit against Tanner
Hiller Airport in Worcester Superior Court
for, inter alia, trespass, conversion, and
to quiet title.
April 18, 1997 The Brenemans amend their complaint, adding
A. Amorello & Sons, Inc. gravel company as a
primary defendant.
February 1, 1999 Worcester Superior Court grants summary
judgment to A. Amorello & Sons, Inc.
Breneman v. Tanner, No 922705, 1999 WL
1336436 (Mass. Super. Ct. Feb. 1, 1999).
October 21, 1999 Worcester Superior Court grants summary
judgment to Tanner Hiller Airport .
Breneman v. Wolfson, No. WCV922705, 1999 WL
1203920 (Mass. Super. Ct. Oct. 21, 1999).
January 5, 2001 The FAA issues two hazard studies in which
it determines that the Brenemans' proposed
hill and fence would create hazards to air
travel.
April 9, 2001 The Brenemans appeal the FAA's hazard
studies to the United States Court of
Appeals for the D.C. Circuit.
August 15, 2001 The MAC denies the Brenemans' application
for a permit to construct a hill on their
property.
September 13, 2001 The Brenemans appeal the MAC decision to
Worcester Superior Court.
December 13, 2002 The Brenemans file an action against the FAA
in the United States Court of Federal
Claims. Later that afternoon, they file an
action against the FAA, MAC, and Tanner
Hiller Airport in the United States District
Court for the District of Massachusetts.
February 26, 2002 The D.C. Circuit dismisses the Brenemans'
challenge to the FAA hazard studies.
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Breneman v. FAA, No. 01-1165, 2002 WL 449015
at *7-*8 (D.C. Cir. Feb. 26, 2002).
August 6, 2003 The United States Court of Federal claims
grants summary judgment to the FAA.
Breneman v. United States, 57 Fed. Cl. 571
(2003) aff'd No. 03-5156, 2004 WL 1153329
(Fed. Cir. May 10, 2004).
September 23, 2003 The United States District Court for the
District of Massachusetts issues the ruling
under review in this appeal.
March 15, 2004 Worcester Superior Court dismisses the
Brenemans' appeal of the MAC's denial of
their permit to build a hill on their
property. Breneman v. Massachusetts
Aeronautics Com'n, No. 0101893B, 2004 WL
856640, (Mass. Super. Ct. Mar. 15, 2004).
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Breneman v. United States Ex Rel. Federal Aviation Administration
Court: Court of Appeals for the First Circuit
Date filed: 2004-08-25
Citations: 381 F.3d 33
Copy CitationsCombined Opinion