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 *35 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 Superi- or Court in September 1992 for,
inter alia,
trespass, conversion, and to quiet title against the Airport.
2
See Breneman v. Wolfson,
No. WCV922705,
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
*36
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,
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,
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 reeogni
*37
tion 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,
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 claims 6 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 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,
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.
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 *38 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,.,
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 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,
B. The Claims Against the MAC
The Brenemans complain that the district court improperly dismissed their corn- *39 plaint 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.,
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,
C. Thie 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 Brene-mans’ 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. 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. *40 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,
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 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,
The Airport submitted an affidavit documenting $8,420 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 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.
*41 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. September 25,1992
amend their complaint, adding A. Amorello & Sons, Inc. gravel company as a primary defendant.
Superior Court grants summary judgment to A. Amorello & Sons, Inc.
Breneman v. Tanner,
No 922705,
October 21,1999 Worcester Superior Court grants summary judgment to Tanner Hiller Airport.
Breneman v. Wolfson,
No. WCV922705,
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. January 5, 2001
appeal the FAA’s hazard studies to the United States Court of Appeals for the D.C. Circuit.
15, The MAC denies the Brenemans’ application for a permit to construct a hill on their property. 15,
13, The Brenemans appeal the MAC decision to Worcester Superior Court. 13,
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. December 13, 2002
the Brenemans’ challenge to the FAA hazard studies.
Breneman v. FAA,
No. 01-1165,
August 6, 2003 The United States Court of Federal claims grants summary judgment to the FAA.
Breneman v. United States,
September 23, 2003 The United States District Court for the District of Massachusetts issues the ruling under review in this appeal. September 23, 2003
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,
Notes
. Although the property owned by the Brene-mans is largely undeveloped, there is a residence on it.
. The 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.
.We have provided a chronology of the various legal proceedings in the appendix to this opinion.
. The 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.
. The Brenemans filed their Court of Federal Claims action a few hours before they hied their Feoeral 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 ....”).
. The 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.
. The 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.
. The 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 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.”
. The 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 pósi-tions 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.