United States District Court, N.D. Ohio, Eastern Division
PRAM NGUYEN Ex Rel. United States, Plaintiff
CITY OF CLEVELAND, Defendant
MEMORANDUM OF OPINION AND ORDER
SOLOMON OLIVER, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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.
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.
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
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
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
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.
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 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.
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.
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.
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.