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Nguyen ex rel. United States v. City of Cleveland

United States District Court, N.D. Ohio, Eastern Division

April 12, 2017

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

          MEMORANDUM OF OPINION AND ORDER

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

         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 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 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.

         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 ...


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