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
1Although the property owned by the Brenemans is largely

undeveloped, there is a residence on it.

-3-

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,
2The 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.

3We have provided a chronology of the various legal

proceedings in the appendix to this opinion.

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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,
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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
4The 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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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
5The 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-

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
6The 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.

-8-

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
7The 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.

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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. 
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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
8The 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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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
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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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
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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
9The 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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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
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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).