Nguyen v. City of Cleveland, Ohio

Filing 2

Memorandum Opinion and Order dismissing this action. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Signed by Judge Solomon Oliver, Jr on 4/12/2017. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PRAM NGUYEN Ex Rel. United States,
Plaintiff
v.
CITY OF CLEVELAND,
Defendant

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Case No.: 1:17 CV 521

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION
AND ORDER

Pram Nguyen, proceeding pro se, filed this action against the City of Cleveland under the
Clean Air Act (“CAA”), the False Claims Act (“FCA”) and Federal Civil Procedure Rules 60(b) and
(c). In the Complaint, Plaintiff challenges the manner in which the Cleveland Hopkins Airport
calculates emissions, particularly from de-icing, claiming it should be subject to permit requirements
under Title V of the CCA. He seeks monetary damages and an Order from this Court requiring the
airport to obtain a Title V permit.

Background
Nguyen has brought several legal actions to challenge the way in which airports calculate
emissions in order to determine whether they are a “major stationary source” within the meaning
of the CAA and therefore subject to the permit requirements of Title V of the CCA. See Nguyen v.

City of Cleveland, 534 F. App’x 445 (6th Cir. 2013). Two of those actions are pertinent to this case.

In January 2000, Nguyen filed a qui tam action under the FCA against the operators of
numerous American airports, including the Cleveland Hopkins International Airport (“Cleveland
Hopkins”). In that action, he alleged the airport operators fraudulently accepted funds from the
Federal Aviation Administration (“FAA”) by falsely certifying that they were in compliance with
environmental laws, including the CAA. See United States ex rel. Nguyen v. City of Cleveland, Nos.
1:00 CV 208, 1:03 CV 1563, 2005 WL 2416925 (N.D. Ohio Sept. 30, 2005)(O’Malley, J.)(“Nguyen
I”) Nguyen argued the airports did not obtain Title V permits even though their emissions of
ethylene and propylene glycol from their de-icing operations exceeded the levels that require permits
under the CAA. United States District Judge Kathleen M. O’Malley ultimately granted summary
judgment in favor of the Defendants.
In October 2005, prior to filing his appeal in Nguyen I, Nguyen filed for Chapter 7
Bankruptcy and his interest in Nguyen I became part of the Bankruptcy estate. See In re Pram
Nguyen, No. 05-95756-rb (Bankr. N.D. Ohio, Oct. 16, 2005). The Bankruptcy Trustee agreed to
settle the appeal in Nguyen I with the City of Cleveland and the Toledo Lucas-County Port
Authority. In exchange for the Trustee’s agreement on behalf of the estate to release all claims and
not to sue, the estate was paid the sum of $ 10,100.00.
Nguyen filed an other action against the City of Cleveland in February 2009. In that action,
Nguyen again alleged that since 1996, the Defendant continuously violated the FCA by falsely
certifying that they were complying with all environmental laws. Unlike Nguyen I, Nguyen brought
a claim under the citizen-suit provision of the CCA, 42 U.S.C. § 7604, asserting that the Defendants

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continuously violated Title V’s permit requirements. He also alleged that, in addition to failing to
obtain permits from emissions given off by the de-icing operations, the Defendant failed to obtain
permits for emissions created during runway de-icing, refueling, roadway operations, construction
and removal, transportation and dumping of contaminated soil.
The City of Cleveland filed a Motion to Dismiss the Amended Complaint pursuant to Fed.
R. Civ. P. 12(b)(6), asserting that the claims were barred by the doctrines of claim and issue
preclusion. The District Court concurred, and dismissed the action. Nguyen appealed that decision
to the United States Sixth Circuit Court of Appeals. The Sixth Circuit upheld the District Court’s
decision on the FCA claims. They upheld the district court’s decision on the CAA claims, but only
to the extent it applied to events that occurred prior to the September 30, 2005 judgment in Nguyen
I. See Nguyen v. City of Cleveland, 534 F. App’x 445 (6th Cir. 2013)(“Nguyen II”). The Circuit
also held that to the extent the CAA claim applied to conduct occurring after the judgment in Nguyen
I, claim preclusion did not apply. The Court remanded the action to the District Court for further
proceedings. Id. at 453.
The City then filed a Motion for Summary Judgment asserting that Nguyen’s CAA claim
was barred by the release executed by the Bankruptcy Trustee. The District Court held that the
release only barred suit for events that took place prior to the filing of the bankruptcy case in 2005.
Any events occurring after the initiation of the bankruptcy would not be part of the estate.
The City filed a second Motion for Summary Judgment after conducting discovery, asserting
that Nguyen failed to establish Article III standing to bring the action. They also asserted that the
emissions Nguyen identified were excluded from the calculations used to determine whether a

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permit was required by Title V of the CAA. The District Court granted this Motion, finding that
Nguyen lacked standing to assert violations of the CAA.
Nguyen appealed that decision to the Sixth Circuit, arguing that he had standing. He also
claimed the District Court improperly excluded the expert report of John Jacus and did not allow
him to depose key witnesses. The City of Cleveland cross-appealed from the District Court’s ruling
that the release did not bar claims pertaining to events occurring after the bankruptcy was filed.
They asked the Circuit to remand the case to the District Court with the instruction that the entire
case be dismissed with prejudice.
On March 3, 2017, the Sixth Circuit issued its opinion, affirming the district court’s decision
that Nguyen lacked Article III standing to bring his claims. See United States ex rel. Nguyen v. City
of Cleveland, Nos. 16-3379, 3420 (6th Cir. Mar. 3, 2017). The Court held that Nguyen failed to
meet the injury-in-fact requirement because he did not demonstrate he was personally harmed by
the Defendant’s failure to obtain a Title V permit. Id. at 4. In addition, the Court held that Nguyen
did not satisfy the redressability requirement for Article III standing. Id. at 5. Only the Ohio EPA
could determine whether the facility was required to obtain the Title V permit and the Ohio EPA was
not a party to the case. Id. at 5-6. Therefore even if Plaintiff had alleged an injury, the Court could
not order the Ohio EPA to issue the permit, and that permit would not limit the airport’s emissions.
Id. Nguyen argued that he was acting as a “private attorney general” in bringing the suit and
therefore did not need to show an injury-in-fact. Id. at 6. The Circuit disagreed, holding that the
CAA’s citizen-suit provision did not replace Article III standing requirements. Id. at 6-7. Because
the Circuit determined Nguyen lacked standing to bring his claims under the CAA, it did not address
his other claims nor the Defendant’s cross-appeal. Id. at 7.

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Ten days after the Sixth Circuit issued its decision, Nguyen filed the present action, once
again asserting claims under the FCA and the CAA. He alleges the City of Cleveland is illegally
disbursing de-icing fluids and other regulated pollutants into the air at Cleveland Hopkins
International Airport in violation of the CAA. He asserts they did not obtain a Title V permit, they
neglected to pay annual emission fees, failed to pay penalties for violating environmental laws, and
did not comply with the State Implementation Plan (“SIP”) for protecting the environment. In
addition, he alleges the City of Cleveland knowingly submitted statements to the United States
Federal Aviation Administration (“FAA”) reporting that they were in compliance with
environmental protection laws to receive federal funding.

Standard of Review
The Court is required to construe Plaintiff’s pro se Complaint liberally and to hold Plaintiff’s
Complaint to a less stringent standard than one drafted by an attorney. Spotts v. United States, 429
F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Pursuant to
Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (per curiam), district courts are permitted to
conduct a limited screening procedure and to dismiss, sua sponte, a fee-paid Complaint filed by a
non-prisoner if it appears that the allegations are “totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.” Apple, 183 F.3d at 479 (citing Hagans
v. Lavine, 415 U.S. 528, 536-37 (1974)). Dismissal on a sua sponte basis is also authorized where
the asserted claims lack an arguable basis in law, or if the district court lacks subject matter
jurisdiction over the matter. Id. at 480; see also Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk
v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall, 898 F.2d 1196 (6th Cir.
1990).

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Analysis
When litigation between two parties extends on for seventeen years through three actions
and three appeals, it is only a matter of time before principles of preclusion are implicated. The
purpose of preclusion doctrines “is to promote the finality of judgments and thereby increase
certainty, discourage multiple litigation, and conserve judicial resources.” Westwood Chem. Co.,
Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). In order to do this, the Court must recognize
and uphold prior decisions in the same case (law of the case), and prior rulings in different but
related cases involving the same parties and the same events or occurrences (issue and claim
preclusion). In this case, the action is barred by both issue and claim preclusion.
Claim preclusion bars a second lawsuit when (1) the first lawsuit ends in a final judgment
on the merits, (2) both suits involve the same parties or their privies, (3) an issue in the second suit
was raised or should have been raised in the first, and (4) both suits arose from the same transaction.
Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 766 (6th Cir. 2015) (quotations omitted). All four
requirements are present here. The District Court in Nguyen II granted summary judgment in favor
of the City of Cleveland on both claims. The Sixth Circuit upheld the District Court’s judgment,
stating again that Nguyen lacked standing to assert the claims. He is now bringing the same claims
against the same Defendant based on the same events and issues. Claim preclusion bars him from
relitigating those claims for a second time.
Similarly, issue preclusion bars a party from relitigating an issue of law necessary to a
judgment, which has been previously decided by a court of competent jurisdiction, even if the new
case is based on a different cause of action. United States v. United Techs. Corp., 782 F.3d 718,
725-26 (6th Cir. 2015). Four criteria must be met for issue preclusion to apply: (1) the identical

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issue was raised and actually litigated in a prior proceeding; (2) determination of the issue was
necessary to the outcome of the prior proceeding; (3) the prior proceeding resulted in a final
judgment on the merits; and (4) the party against whom issue preclusion is sought had a full and fair
opportunity to litigate the issue in the prior proceeding. Gen. Elect. Med. Sys. Europe v. Prometheus
Health, 394 Fed. Appx. 280, 283 (6th Cir. 2010) (citing Aircraft Braking Sys. Corp. v. Local 856,
Int'l Union, United Auto., Aerospace and Agric. Implement Workers, UAW, 97 F.3d 155, 161 (6th
Cir. 1996)). Issue preclusion is not negated merely because the losing party puts on a better case
the second time around. See, e.g., Yamaha Corp. v. United States, 961 F.2d 245, 254-55 (D.C. Cir.
1992) (“Preclusion cannot be avoided simply by offering evidence in the second proceeding that
could have been admitted, but was not, in the first.”); Cory v. C.I.R., 159 F.2d 391, 392 (3d Cir.
1947) (“[P]arties are not entitled to have a question considered on its merits a second time merely
because they failed to produce all the facts the first time.”); Akron Presform Mold Co. v. McNeil
Corp., 496 F.2d 230, 234-35 (6th Cir. 1974) (rejecting new evidence to establish violation of
antitrust laws in second action).
The criteria for issue preclusion are also met in this case. Nguyen had a full and fair
opportunity to litigate the issue of standing in both the District Court and before the Sixth Circuit
on appeal. He is bound by those determinations and cannot now file the same action in the hope of
achieving a different result.
The Court is aware that res judicata is an affirmative defense that usually must be raised by
the Defendant. FED.R.CIV.P.8(c). See Haskell v. Wash. Township, 864 F.2d 1266, 1273 (6th Cir.
1988). However, the Supreme Court as well as the Sixth Circuit have indicated that a Court may
take the initiative to assert the res judicata defense sua sponte in “special circumstances.” Arizona

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v. California, 530 U.S. 392, 412 (2000). The “special circumstance” recognized in Arizona, is when
“a court is on notice that it has previously decided the issue presented.” Arizona, 530 U.S. at 412
(internal quotation marks omitted). As this is a refiling of a case that was very recently before this
Court and the Sixth Circuit, the Court finds that the claims and issues presented in this case have
been thoroughly litigated and decided on the merits. This matter is no longer open to discussion and
is dismissed. Apple, 183 F.3d at 479.

Conclusion
Accordingly, this action is dismissed. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.

/S/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

April 12, 2017

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