Breneman v. U.S. ex rel. F.A.A.

• Decision Date: 25 August 2004
• Docket Number: No. 03-2616.,03-2616.
• Citation: 381 F.3d 33
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

381 F.3d 33

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.

No. 03-2616.

United States Court of Appeals, First Circuit.

Heard May 4, 2004.

Decided August 25, 2004.

Appeal from the United States District Court for the District of Massachusetts, Rya W. Zobel, J 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.

Before SELYA, Circuit Judge, CYR, senior Circuit Judge, and LIPEZ, Circuit Judge.

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, 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, 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 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 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 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) a 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 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. A02-1240ORWZ, 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...