Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

Supreme Court, U.S

No. 03-1601 OFFICE OF THE CLERK

In the

Supreme Court of the United States

°

CITY OF RANCHO PALOS VERDES, et al.,

Petitioners,

v.

MAPK J. ABRAMS,

Respondent.

o

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

e o

BRIEF OF THE STATES OF ALABAMA,

ALASKA, DELAWARE, OHIO, OREGON,

TEXAS, UTAH, VERMONT, AND VIRGINIA

AS AMICI CURTAE

IN SUPPORT OF PETITIONER

¢

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130-0152

July 1, 2004 (334) 242-7401

(Additional counsel for amici curiae are listed inside the front cover.)

a cD

ADDITIONAL COUNSEL

GREGG D. RENKES

ATTORNEY GENERAL

STATE OF ALASKA

P.O. Box 110300

Juneau, AK 99811

M. JANE BRADY

ATTORNEY GENERAL

STATE OF DELAWARE

820 N. French Street

Wilmington, DE 19801

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

30 E. Broad Street

17th Floor

Columbus, OH 43215

HARDY MYERS

ATTORNEY GENERAL

STATE OF OREGON

1162 Court St. N.E.

Salem, OR 97301

GREG ABBOTT

ATTORNEY GENERAL

STATE OF TEXAS

P.O. Box 12548

Austin, TX 78711-2548

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

236 State Capitol

Salt Lake City, UT 84114

WILLIAM H. SORRELL

ATTORNEY GENERAL

STATE OF VERMONT

109 State Street

Montpelier, VT 05609

JERRY W. KILGORE

ATTORNEY GENERAL

COMMONWEALTH OF

VIRGINIA

900 East Main Street

Richmond, VA 23219

QUESTION PRESENTED

Whether, as held below but contrary to decisions of

the Third and Seventh Circuits, the limits on state and

local zoning and land-use authority established by Section

332(c)(7)(B) of the Communications Act may be enforced

through an action for damages and attorney’s fees under

42 U.S.C. §§1983 and 1988. See Pet. at i.

il

TABLE OF CONTENTS

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INTEREST OF AMICI CURIA ..............::cccscesenssseesseees + 1

REASONS FOR GRANTING THE WRIT...........0...0....06 3

I. The Court Should Grant Certiorari To Resolve

the Clear Circuit Split Concerning the

Propriety of Enforcing the Communications Act

Through Section 1983 and To Clarify the

Meaning and Scope of the Sea Clammers

ASSET TTD 3

Il. The Ninth Circuit's Decision Is Inconsistent

With Sea Clammers, With This Court’s

Decisions in Related Contexts, and With

a cnibsceoccnscoos 10

Sida ccinasandnmivonsetensnenenencatsonieesecseescees 19

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TABLE OF AUTHORITIES

Cases :

Abrams v. City of Rancho Palos Verdes, 354 F.3d

UII, SITET ors sscisesnsacuemnbesencnteniainhenbeneenpnensetpinte 4

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

BE TUTTE ncrctncncdpetiadgnninunenesenoenenetneneninemaeaseyeneteueeiens 7

AT&T Wireless PCS, Inc. v. City of Atlanta, 210

F.3d 1322 (11th Cir. 2000), vacated on reh’g en

banc, 260 F.3d 1320, appeal dismissed

following settlement, 264 F.3d 1314 (2001)............ 4,18

Blessing v. Freestone, 520 U.S. 329 (1997)......... 3, 8, 12, 13

Buckhannon Bd. and Care Home, Inc. v. West

Virginia Dep’t of Health & Human Resources,

ee SO ccvennitmencccevssenesevtnesnconresinsemesensvensens 18

Cellular Tele. Co. v. Town of Oyster Bay, 166 F.3d

Se EE niciscinniniesenmtenecenntnnsahinesnnenenneneginnniens 17

City of Leeds v. Town of Moody, 319 So. 2d 242

I ta araslnmnnpeneennile 1

Edwards v. Balisok, 520 U.S. 641 (1997) ...............0cccce eee 5

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)..................04. 7

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)................. ce 3

Heck v. Humphrey, 512 U.S. 477 (1994).................:0000 5, 14

Hensley v. Eckerhart, 461 U.S. 424 (19838) .................00000. 18

Independent Federation of Flight Attendants v.

BE, GF Gils Pe i iccccctcspcccescccccnsocssonsccnnsecesonees 18

Maine v. Thiboutot, 448 U.S. 1 (1980)............... eee 4

MCI Telecomm. Corp. v. Southern New England

Tele. Co., 27 F. Supp. 2d 326 (D. Conn. 1998).............. 2

iv

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981).................004. passim

Muhammad v. Close, 124 S. Ct. 1803 (2004) ..................... 5

National Tower, LLC v. Plainville Zoning Bd. of

Appeals, 297 F.3d 14 (1st Cir. 2002)..................... 16, 17

New Par v. City of Saginaw, 301 F.3d 390 (6th Cir.

TT cxisncinsshictesnsaiiscsiailastecnihieiabaddliatasnliinadanataniadasigiaadapanaiils 16, 17

Nextel Partners Inc. v. Kingston Twp., 286 F.3d

Be eI MN ciciieitetistcshcterssilasinisininainaelinnialdiisntandeie 4,7,8

Omnipoint Corp. v. Zoning Hearing Bd. of Pine

Grove Twp., 181 F.3d 403 (3d Cir. 1999).................... 17

Preferred Sites, LLC v. Troup County, 296 F.3d

ee Ny re iccieascatinntilesscictiinisteiieiniaiaii 16, 17, 19

Preiser v. Rodriguez, 411 U.S. 475 (1973)................ passim

PrimeCo Personal Comms. Ltd. P’ship v. City of

Mequon, 352 F.3d 1147 (7th Cir. 2003).................. 4,18

Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d

es. ica cicichiinsitannseiiceieaiieicniiaidiedeiceltcieitaniadidipmnannnaed 2

Smith v. Robinson, 468 U.S. 992 (1984)...........0000000. passim

Spencer v. Kemna, 523 U.S. 1 (1998).............ccccceeeseeeeeeeees 15

Sprint Tele. PCS, L.P. v. County of San Diego, 311

FP. Supp. 24 SOB (B.D. Cal. 2006) ....cccoccccccosccsccccoscccccssees 2

Verizon Maryland Inc. v. RCN Telecom Seruvs., Inc.,

232 F. Supp. 2d 539 (D. Md. 2002) ...................cccccceeeeee 2

Wilder v. Virginia Hospital Ass’n, 496 U.S. 498

i ansacietiatebanbeihis debate ins iia 12, 13

Wright v. City of Roanoke Redevelopment and

Housing Auth., 479 U.S. 418 (1987) ................. 8, 12, 13

Vv

Statutes

Sy IE icsnincetininsisiictniceiatiaiintanisaieTebinndeiianiiuenmpneed 5, 14, 15

ERIE iinelticsctdntismienistaosabieadiintnaiuidniainiiiad passim

IRI iter sicintnnctensiineuiacbiiieinsebbintmiainicadanidl passim

Be ee I aeicsicnscticrensinnninnesacinscestciptiniesttiniiiiadananiiiiaeabinaniaiiaiiies 2

Fe TT seshasiciiciiiiteassenntnrsescineneasiainitaniiiniaititiinisaiubamaunabeieas 2

a at iceticinerneeireentintetseeniaindeel passim

Other Authorities

C. Jacques & J. Beerman, Section 1983’s “And

Laws” Clause Run Amok: Civil Rights

Attorney’s Fees in Cellular Facilities Siting

Disputes, 81 B.U. L. Rev. 735 (2001).......... 1, 13, 15, 17

pe OS ee Or mewn

—

INTEREST OF AMICI CURIAE

In the decision below, the Ninth Circuit held, in

contrast with the Third and Seventh Circuits, that the

remedial scheme established by 47 U.S.C. §332(c)(7),

which addresses the siting and construction of wireless

communication facilities, is not sufficiently

“comprehensive” within the meaning of Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S.

1 (1981), to preclude enforcement through the generic

cause of action created by 42 U.S.C. §1983. The amici

States’ interests in this case are threefold.

First, the Communications Act provisions at issue

apply by their terms not just to municipalities (like

petitioner here) but also to State governments and their

officers. See C. Jacques & J. Beerman, Section 1983's

“And Laws” Clause Run Amok: Civil Rights Attorney’s

Fees in Cellular Facilities Siting Disputes, 81 B.U. L. Kev.

735, 751-52 (2001) (“The [Telecommunications Act]

repeatedly refers to ‘State or local’ governments, thus

explicitly placing obligations on states.”). Of principal

importance here, §332(c)(7) prescribes an express private

cause of action against any “State or local government or

any instrumentality thereof.” Id. §332(c)(7)(B)(v)

(emphasis added). Accordingly, even aside from the

symbiotic relationship that exists generally between cities

and States, see City of Leeds v. Town of Moody, 319 So. 2d

242, 246 (Ala. 1975) (“Municipalities are mere

instrumentalities of the state possessing only such powers

as may have been delegated to them by the legislature.”),

~§332’s plain text expressly brings States and their officers

— as such — within its ambit. And while it may typically

be the case (as it is here) that local governments deal with

the placement and construction issues to which §332(c)(7)

applies, that is not necessarily — nor will it always be —

the case.

Second, §332(c)(7) does not exist in a vacuum. Rather,

as the petition correctly points out, §332(c)(7) “forms part

of the Communications Act’s comprehensive regulatory

2

scheme.” Pet. at 21. As they have done when addressing

§332(c)(7), lower courts have disagreed whether other

provisions of the Act — provisions that directly target

States and their officers - entail sufficiently

“comprehensive” remedial schemes to preclude resort to

§1983’s general terms under Sea Clammers. With respect

to 47 U.S.C. §252, which provides a cause of action

against state public service commissioners in connection

with the negotiation and enforcement of interconnection

agreements, compare Verizon Maryland Inc. v. RCN

Telecom Servs., Inc., 232 F. Supp. 2d 539, 557 (D. Md.

2002) (rejecting §1983 suit under Sea Clammers), with

MCI Telecomm. Corp. v. Southern New England Tele. Co.,

27 F. Supp. 2d 326, 334 (D. Conn. 1998) (permitting §1983

suit). With respect to 47 U.S.C. §253, which deals with

telecommunications providers’ uses of public rights-of-

way, compare Qwest Corp. v. City of Santa Fe, 224 F.

Supp. 2d 1305, 1315 (D.N.M. 2002) (rejecting §1983 suit

under Sea Clammers), with Sprint Tele. PCS, L.P. v.

County of San Diego, 311 F. Supp. 2d 898, 913-15 (S.D.

Cal. 2004) (permitting §1983 suit). The amici States are

concerned that the Ninth Circuit's decision below that

§332(c)(7)’s remedial scheme is insufficiently

comprehensive to preclude resort to §1983 will have

ripple effects in other provisions of the Communications

Act and thus expose state officers and employees to

unexpected personal §1983 liability.

Third, and perhaps most importantly, the amici

States, whose officers and employees are perhaps the

most frequent defendants in suits brought under §1983,

have a keen interest in preventing the unwarranted

extension of §1983 into areas governed by other, more

specific remedial regimes. The Sea Clammers rule — like,

amici will show, the rule of Preiser v. Rodriguez, 411 U.S.

475 (1973) — serves the important function of precluding

plaintiffs from invoking §1983’s open-ended remedial

regime where Congress has exercised its prerogative to

establish a more specific, and more limited, cause of

action. Just as the States have intervened to defend and

preserve the Sea Clammers rule before, see, e.g., Br. of

SO re re are were

3

Amici Curiae States of Illinois et al. at 16-22, Gonzaga

Univ. v. Doe, 536 U.S. 273 (2002) (No. 01-679); Br. of

Amici Curiae States of Illinois et al. at 19-25, Blessing v.

Freestone, 520 U.S. 329 (1997) (No. 95-1441), they do so

here.

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant Certiorari To Resolve

the Clear Circuit Split Concerning the

Propriety of Enforcing the Communications Act

Through Section 1983 and To Clarify the

Meaning and Scope of the Sea Clammers

Decision.

Section 704 of the Telecommunications Act of 1996,

codified at 47 U.S.C. §332(c)(7), prescribes an express

private cause of action to redress violations of the Act’s

wireless communications equipment-siting provisions:

Any person adversely affected by any final action

or failure to act by a State or local government or

any instrumentality thereof that is inconsistent

with this subparagraph may, within 30 days after

such action or failure to act, commence an action

in any court of competent jurisdiction. The court

shall hear and decide such action on an expedited

basis ....

Id. §332(c)(7)(B)(v).

1. As the petition demonstrates, the courts of appeals

(and the district courts, for that matter) are divided over

the question whether the private cause of action detailed

in §332(c)(7) is sufficiently “comprehensive” within the

meaning of this Court’s decision in Middlesex County

Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S.

1 (1981), to preclude resort to the generic cause of action

set forth in 42 U.S.C. §1983. See Pet. at 12-20. The Third

and Seventh Circuits say yes; the Ninth and Eleventh

Circuits (the latter in a now-vacated opinion) say no.

Compare Nextel Partners Inc. v. Kingston Twp., 286 F.3d

4

687 (3d Cir. 2002), and PrimeCo Personal Comms. Ltd.

P’ship v. City of Mequon, 352 F.3d 1147 (7th Cir. 2003),

with Abrams v. City of Rancho Palos Verdes, 354 F.3d

1094 (9th Cir. 2004) (Pet. App. la-12a), and AT&T

Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322 (11th

Cir. 2000), vacated on reh’g en banc, 260 F.3d 1320,

appeal dismissed following settlement, 264 F.3d 1314

(2001). The circuit split has been openly acknowledged by

the relevant players: In the decision below, the Ninth

Circuit expressly rejected the Third Circuit’s “reasoning

[as] flawed in several respects.” Pet. App. 8a. The Third

Circuit, for its part, had earlier “respectfully disagree[d]

with the reasoning” of the Eleventh Circuit. Nextel

Partners, 286 F.3d at 695.

What is more, the divide in the circuits is not just

about results, with some permitting Communications-Act

plaintiffs to seek damages and fees under §1983 and

others refusing. Rather, the divide runs deep, and

reflects a fundamental disagreement about the meaning

of this Court’s decision in Sea Clammers and — deeper

still - about the operation of §1983 itself.

Section 1983’s language, of course, is broad. It

provides that any person who, acting under the color of

state law, deprives another of “his rights, privileges, or

immunities secured by the Constitution and laws,” shall

be liable “in an action at law, suit in equity, or other

proper proceeding for redress.” 42 U.S.C. §1983.

Particularly relevant here, §1983 permits suits alleging

deprivations of rights secured by the “laws” of the United

States. In 1980, this Court held that §1983’s “and laws”

clause authorizes suits to redress violations by state

officials of rights created by federal statutes. See Maine v.

Thiboutot, 448 U.S. 1, 4-8 (1980).

This Court has also made clear, though, that §1983’s

broad language cannot be read literally, else it would

swallow up — and displace — other, more specific remedial

schemes. Perhaps most notable in this respect have been

this Court’s decisions concerning the “intersection,” or

“overlap,” of §1983 and the federal habeas corpus statute,

aa een

5

28 U.S.C. §2254. See, e.g., Preiser v. Rodriguez, 411 U.S.

475 (1973); Heck v. Humphrey, 512 U.S. 477 (1994);

Edwards v. Balisok, 520 U.S. 641 (1997); Muhammad v.

Close, 124 S. Ct. 1303 (2004). In the first in that line of

cases, Preiser v. Rodriguez, this Court faced §1983 suits

by state prisoners seeking the restoration of good-time

credits they claimed had been unconstitutionally revoked.

The inmates had sued under §1983 to avoid having to

exhaust their state remedies, as the habeas statute

expressly requires, see 28 U.S.C. §2254(b). “The question

before us,” this Court said, “is whether state prisoners

seeking such redress may obtain equitable relief under

[§1983], even though the federal habeas corpus statute,

28 U.S.C. §2254, clearly provides a specific federal

remedy.” 411 U.S. at 477. In answering that question in

the negative, the Court stressed that “[t]he broad

language of §1983 is not conclusive ....”. Jd. at 489.

Emphasizing that “[t]he [§1983] statute is a general one,”

the Court held that, “despite the literal applicability of

[§1983’s] terms,” the “specific federal habeas corpus

statute ... must be understood to be the exclusive remedy

in a situation like this where it so clearly applies.” Id.

This case presents a similar issue, albeit in a different

context. Under what circumstances is §1983 available to

a plaintiff claiming that a state or local official deprived

him of a right created by a federal statute? And more

specifically, when may a plaintiff resort to §1983’s generic

cause of action rather than utilize the specific cause of

action — and accompanying procedures and remedies —

available to him under the statute he seeks to enforce?

Just a year after its decision in Thiboutot recognizing that

§1983 authorizes suits for violations of federal statutes,

this Court in Middlesex County Sewerage Auth. v.

National Sea Clammers Ass’n, 453 U.S. 1, recognized an

important exception to the application of §1983 to

statutory violations. Specifically, the Court held that

“[w]hen the remedial devices provided in a particular Act

are sufficiently comprehensive, they may suffice to

demonstrate congressional intent to preclude the remedy

of suits under §1983.” Jd. at 20. Accordingly, the Sea

s<-

6

Clammers Court emphasized, when “a state official is

alleged to have violated a federal statute which provides

its own comprehensive enforcement scheme, the

requirements of that enforcement procedure may not be

bypassed by bringing suit directly under §1983.” 7d.

(citation omitted).

2. The division in the courts of appeals that underlies

the current petition reflects a fundamental disagreement

concerning what makes a statute’s enforcement scheme

“comprehensive” within the meaning of Sea Clammers.

For its part, the Ninth Circuit has adopted what we, for

ease of analysis, will call a “more is better” approach to

Sea Clammers’ comprehensiveness criterion; it views a

comprehensive statutory scheme as one that is extensive,

and specifically one that provides plaintiffs with a host of

remedial options. In finding §332(c)(7)’s remedial scheme

not to be comprehensive under Sea Clammers, the Ninth

Circuit emphasized its view that the section’s

“[s]hortening [of] the statute of limitations to thirty days

imposes a burden on an aggrieved plaintiff, not a benefit,”

and that “[t]he only benefit to an aggrieved plaintiff’

under the section is expedited judicial review. Pet. App.

8a; see also id. at 9a (referring to §332(c)(7) as “limiting

the plaintiffs remedies”). Furthermore, and consistent

with its understanding that a comprehensive remedial

scheme should maximize a plaintiffs remedial options,

the Ninth Circuit reasoned from the absence in §332(c)(7)

of any provision for monetary damages not that damages

are unavailable in suits seeking to enforce §332(c)(7), but

instead that damages (and fees) may be had through

resort to §1983: “While one may argue that the lack of

any damages [remedy] in the [Telecommunications Act] is

evidence that Congress impliedly intended to foreclose

damages, a better justification for the absence of a

remedial provision is that Congress intended to preserve

an aggrieved plaintiffs right to invoke §1983.” Pet. App.

7a. Thus, in the Ninth Circuit’s view, the fact that a

statute limits a plaintiffs remedies — whether expressly

(as by imposing a short limitations period) or implicitly

(as by omitting an express damages provision) — in and of

; 7

itself indicates that the statute's scheme is not

comprehensive under Sea Clammers, and that §1983 thus

remains available.

As its decision in Nextel Partners demonstrates, the

Third Circuit has taken a fundamentally different view —

which we will call the “internal coherence” view — of Sea

Clammers’ comprehensiveness criterion. In finding

§332(c)(7)'s remedial scheme to be _ sufficiently

comprehensive to preclude resort to §1983, the Third

Circuit acknowledged that the scheme “is. not

complicated.” 286 F.3d at 694. But, the court

emphasized, it is “comprehensive in the relevant sense,”

namely, in that it “provides private judicial remedies that

incorporate both notable benefits and corresponding

limitations.” Id. Specifically, the Third Circuit

emphasized that while §332(c)(7) “requires that [an]

action be filed within a very short period — 30 days — after

an adverse decision or failure to act,” it also

“correspondingly requires the court to ‘hear and decide

such action on an expedited basis.” Jd. at 695. Section

332’s “streamlined review,” the court said, “may work to

the benefit of plaintiffs and defendants in different ways.”

Id. The Third Circuit also “flound] it important” to its

determination of comprehensiveness that the

Communications Act, unlike §1983’s counterpart §1988,

“makes no provision for attorney’s fees,” and thus under

the prevailing “American rule” does not permit fee-

shifting. Jd. (citing Fogerty v. Fantasy, Inc., 510 U.S. 517,

533 (1994), and Alyeska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240, 247-62 (1975)).

Accordingly, whereas the Ninth Circuit viewed

§332(c)(7)’s “burden[s]” and “limit[ations]” on a plaintiffs

right of recovery as evidence that the statute’s remedial

scheme is not comprehensive, the Third Circuit, working

from the same premises, drew precisely the opposite

conclusion. For the Third Circuit, the issue was not

simply whether §1983 is a better deal for plaintiffs than

the Communications Act. Rather, the Third Circuit

looked to whether the remedial regime established by

8

§332(c)(7) is self-contained — in the sense that it provides

a private cause of action with an attendant “package” of

remedies and requirements — and whether resort to

§1983’s generic scheme would undermine §332(c)(7)’s

more specific scheme. Using those criteria, the Third

Circuit found that §1983 was not available. Specifically,

it found that (i) a plaintiff suing under §1983 “would be

freed of [§332(c)(7)’s] short 30-day limitations period and

would instead presumably have four years to commence

the action”; (ii) the court in a §1983 suit “would also

presumably be freed of [§332(c)(7)’s] obligation to hear the

claim on an expedited basis”; and (iii) “[p]erhaps most

important, attorney's fees would be available” under

§1983, while not under §332(c)(7). Nextel Partners, 286

F.3d at 695. In sum, the Third Circuit concluded that

“fajllowing plaintiffs to assert [Telecommunications Act]

claims under §1983 would upset th[e] balance” — the

balance, that is, of both benefits and burdens — that

Congress struck when it enacted §332(c)(7). Id. at 694.

3. The Third and Ninth Circuits’ sharply divergent

approaches to Sea Clammers’ comprehensiveness

criterion may well result from loose language contained in

a couple of this Court’s own post-Sea Clammers decisions.

At first blush (though, as we will show, not upon

reflection, see infra at 10-14), language in Wright v. City

of Roanoke Redevelopment and Housing Auth., 479 U.S.

418 (1987), and Blessing v. Freestone, 520 U.S. 329 (1997),

might seem to support the Ninth Circuit’s “more is better”

view of comprehensiveness. In holding that the statute

before it could be enforced through §1983, the Court in

Wright observed that the statute’s remedial mechanisms

were not “sufficiently comprehensive and effective” to

justify the inference that Congress sought to foreclose

§1983 enforcement. 479 U.S. at 425 (emphasis added). In

the same vein, the Court in Blessing characterized Sea

Clammers as having involved a statute with “a panoply of

enforcement options” and noted that the “enforcement

arsenal” provided by the statute before it did “not

compare to” those at issue in Sea Clammers. Id. at 347-

48.

9

Smith v. Robinson, 468 U.S. 992 (1984), by contrast,

clearly indicates a measure of comprehensiveness more

consistent with the Third Circuit’s understanding. In

Smith, this Court faced a question similar to the one

presented here. Could a plaintiff recover attorney’s fees

under §1983’s fee-shifting provision, §1988, on an equal

protection claim relating to the Education of the

Handicap Act’s requirement of a “free and appropriate

public education”? Or, instead, was the EHA’s remedial

scheme, which provided for administrative and judicial

review but did not authorize fee awards, exclusive of

§1983. In holding that the EHA precluded resort to

§1983, this Court emphasized that the EHA embodied a

“carefully tailored scheme.” 468 U.S. at 1012. Plainly,

the Court in Smith did not conclude that the EHA’s

scheme was comprehensive in the Ninth Circuit’s “more is

better” sense; the whole point of the case was that §1983

permitted attorney’s fees (and damage awards), while the

EHA did not. See id. at 1009-13, 1019-20 & n.24. But the

Court nonetheless did find that the “procedures and

guarantees” set out in the EHA were “comprehensive,” id.

at 1011, and, further, that “Congress did not intend to

have the EHA scheme” — including the limitations on

recovery embodied in that scheme — “circumvented by

resort to the more general provisions of §1983,” id. at

1016.

x* * *

This Court’s review is thus triply warranted here.

First, there is a clear and acknowledged circuit split

concerning the specific question presented — whether 47

U.S.C. §332{¢}(7) embodies a “comprehensive” remedial

scheme that under Sea Clammers precludes resort to the

more general cause of action created by §1983. Second,

that split runs much deeper than the specific question

presented and actually reflects a fundamental cleavage in

the circuits over what it means for a remedial scheme to

be “comprehensive” within the meaning of Sea Clammers

— namely, whether a comprehensive scheme is one that

maximizes a plaintiffs remedial options, or, instead, one

10

that is coherent, self-contained, and in some sense

incompatible with §1983’s remedial regime. Finally, the

courts’ divergent approaches to the comprehensiveness

question at least arguably result from the sometimes

mixed signals that this Court has sent in the wake of Sea

Clammers. This Court should step in to bring order to

this important area of the law.

Il. The Ninth Circuit’s Decision Is Inconsistent

With Sea Clammers, With This Court’s

Decisions in Related Contexts, and With

Common Sense.

The Third Circuit's approach to Sea Clammers’

comprehensiveness criterion — namely, that a statute’s

remedial regime is sufficiently comprehensive to preclude

resort to §1983 if it is both self-contained and materially

different from §1983 — is superior to the Ninth Circuit’s

“more is better” approach in every relevant respect. The

Ninth Circuit’s decision here and the rationale that

underlies it are inconsistent with (i) the decisions in Sea

~ Clammers and its progeny; (ii) this Court’s approach to

conflicts between §1983 and other specifi: statutory

schemes; and (iii) indeed, simple common sens»,

1. The Sea Clammers Cases. The logic underlying the

Ninth Circuit’s specific decision concerning §332(c)(7) is

inconsistent with the best understanding of shis Court’s

decisions in Sea Clammers and its progeny. Ir concluding

that §3%2(c)(7)’s remedial scheme is not sufficiently

comprehensive to preclude resort to §1983, the Ninth

Circuit focused on the limitations that §332\c)(7) places

on a plaintiffs right of recovery. As an initial matter, the

court emphasized that, in its view, the “only tenefit to an

aggrieved plaintiff’ under §332(c)(7) is expedited judicial

review and that the section’s 30-day limitations period

“imposes a burden on an aggrieved plaintiff, not a

benefit.” Pet. App. 8a. Further, and more tellingly, the

court assumed from §332(c)(7)’s silence concerning

monetary damages — and, presumably, attorney’s fees, as

well — that Congress intended to preserve §1983 as a

11

vehicle for obtaining those forms of relief. With respect to

that point the court asserted that “[w]hile one may argue

that the lack of any damages [remedy] in the TCA is

evidence that Congress impliedly intended to foreclose

damages, a better justification for the absence of a

remedial provision is that Congress intended to preserve

an aggrieved plaintiffs right to invoke §1983.” Pet. App.

7a.

The Ninth Circuit’s reasoning — that limitations on a

plaintiffs right of recovery under a statute’s remedial

scheme render that scheme insufficiently comprehensive

to preclude §1983 enforcement — cannot be squared with

Sea Clammers or with the cases that follow it. The

plaintiffs in Sea Clammers sued under §1983 for

monetary damages stemming from violations of federal

environmental statutes. By invoking §1983, the plaintiffs

sought primarily to circumvent two specific restrictions

embodied in those statutes: (i) a requirement that they

give the defendants and the EPA 60 days notice before

filing suit; and (ii) the statutes’ authorization of

prospective injunctive, but not monetary, relief. See Sea

Clammers, 453 U.S. at 4, 6-7. Thus, the perceived

limitations in the remedial schemes at issue in Sea

Clammers were similar to those the Ninth Circuit found

decisive here — namely, (i) the 30-day filing period and (ii)

the lack of any statutory damages remedy. But while the

Ninth Circuit concluded that those limitations rendered

§332(c)(7)’s remedial scheme insufficiently comprehensive

to preclude resort to §1983, this Court in Sea Clammers

reached precisely the opposite conclusion. It held that the

environmental statutes’ remedial schemes were

comprehensive despite the restrictions on recovery.

Indeed, with respect to those restrictions, the Sea

Clammers Court expressly emphasized that “the

requirements of th[ose] enforcement procedure[s] may not

be bypassed by bringing suit directly under §1983.” Id. at

20 (internal quotation marks omitted).

Nor can the Ninth Circuit’s decision here be reconciled

with Smith v. Robinson, 468 U.S. 992. As noted abcve,

12

the plaintiffs there had sued to enforce their rights under

the Education of the Handicapped Act and the Fourteenth

Amendment. Because, like the §332(c)(7) here, the EHA

was silent as to attorney’s fees — it gave “no indication

that attorney’s fees [we]re available in an action to

enforce [its] requirements,” id. at 1006 — the plaintiffs in

Smith (like the respondent, Mr. Abrams, here) sought fees

under §1983’s fee-shifting provision, §1988. This Court

rejected that move. Despite the lack of any provision for

fees in the EHA’s remedial regime, this Court found that

regime to be “comprehensive” and refused the plaintiffs’

effort to “circumvent” the EHA’s “carefully tailored

scheme” by seeking fees directly through §1983. 468 U.S.

at 1012. Notably for present purposes, this Court in

Smith observed (echoing the First Circuit’s decision,

which it affirmed) that Sea Clammers supports the

“general proposition that when a statute creates a

comprehensive remedial scheme, intentional ‘omissions’

from that scheme” — like the absence of any provision for

the payment of attorney's fees - “should not be

supplanted by the remedial apparatus of §1983.” Jd. at

1003.

Finally, neither Wright v. City of Roanoke

Redevelopment and Housing Auth., 479 U.S. 418, Wilder

v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), nor

Blessing v. Freestone, 520 U.S. 329, supports the Ninth

Circuit’s decision. This Court found the statutes at issue

in those cases insufficiently comprehensive to preclude

resort to §1983 because they provided only for

administrative enforcement by executive agencies (for

instance, through the withholding of federal funds); none

authorized a private cause of action through which an

aggrieved individual himself could seek redress in court.

See Blessing, 520 U.S. at 348; Wilder, 496 U.S. at 521-22;

Wright, 479 U.S. at 427. Indeed, this Court in Wright

distinguished Sea Clammers and Smith on the ground

that the statutes at issue in those cases “themselves

provided for private judicial remedies, thereby evidencing

congressional intent to supplant the §1983 remedy.” Id.;

see also id. at 423 (Sea Clammers involved “scheme that

pe

13

itself provided for private actions”); id. (Smith concerned

remedial scheme “which itself allowed private parties to

seek remedies for violating federal law”). Wilder and

Blessing are to the same effect. In the former, the Court,

contrasting Sea Clammers and Smith, observed that the

statute before it “contain[ed] no comparable provision for

private judicial or administrative enforcement,” 496 U.S.

at 521; in the latter, the Court likewise emphasized that

“{u]nlike the federal programs at issue” in Sea Clammers

and Smith, the statute before it “contain[ed] no private

remedy — either judicial or administrative — through

which aggrieved persons can seek redress.” 520 U.S. at

348.

The remedial schemes at issue in Wright, Wilder, and

Blessing are all fundamentally different from §332(c)(7).

Whereas those cases “involved statutes that relied on

executive branch enforcement with little, if any,

possibility for private enforcement,” §332(c)(7) “relies

entirely on private enforcement.” Jacques & Beerman,

supra at 1, at 754 (emphasis added). Here, the Ninth

Circuit itself acknowledged that §332(c)(7) “provides for a

private right of action by allowing aggrieved plaintiffs the

right to bring an action in any court of competent

jurisdiction ....". Pet. App. 5a-6a. Under this Court’s

decisions, that fact precludes suit under §1983; the fact

that §332(c)(7)’s cause of action is in some sense

circumscribed — for instance, by requiring suit within 30

days and by not providing for damage awards and

attorney’s fees. — does not, as the Ninth Circuit assumed,

detract from its comprehensiveness.

This Court’s decisions — from Sea Clammers to

Blessing — establish a clear rule: Where Congress goes to

the trouble of expressly establishing in a substantive

statute a private cause of action through which an

aggrieved party can seek redress in court (as it did in Sea

Clammers and Smith but did not in Wright, Wilder, or

Blessing), the specific procedures, remedies, and

restrictions prescribed by that statute govern the

operation of the cause of action, and may not be

14

circumvented through resort to §1983’s general terms.

Having acknowledged that §332(c)(7) expressly provides

aggrieved plaintiffs a cause of action through which to

enforce their rights, the Ninth Circuit, by allowing resort

to §1983, went on to sanction the very sort of end run that

this Court’s decisions prohibit.

2. The Preiser Cases. The Ninth Circuit’s “more is

better” approach is also fundamentally inconsistent with

the way this Court has dealt with §1983’s interaction with

other federal statutes. The principle that emerges from

the Sea Clammers line of cases — that where Congress has

expressly created a private cause of action and assigned

to it particular procedures, remedies, and limitations, a

plaintiff cannot circumvent those specific rules through

resort to §1983 — is part of a bigger picture. Under the

banner that a “specific” statute should be read to govern

the “general,” this Court has enforced similar rules to

foreclose §1983 suits in other contexts.

As noted at the outset of this brief, the most notable

“intersection” that this Court has made an effort to police

has been the one between §1983 and the federal habeas

corpus statute, 28 U.S.C. §2254. The question in those

cases has never been whether the habeas statute is

sufficiently beneficial or advantageous to the complaining

inmate (with the result that, if not, §1983 steps in to

provide a more robust remedy). In fact, just the opposite

is true. The fundamental question in that line of cases

has been whether an inmate may circumvent a specific

limitation on the habeas statute’s express cause of action

— typically, the requirement that he exhaust state

remedies, see 28 U.S.C. §2254(b) — by resort to the more

general, and more permissive, §1983. See, e.g., Heck, 512

U.S. at 480-81; Preiser, 411 U.S. at 489-90. This Court

has consistently answered no. In Preiser, the Court held

that “[i]Jt would wholly frustrate explicit congressional

intent to hold that [inmates] could evade [the habeas

statute’s] requirement[s] by the simple expedient of

putting a different label on their pleadings.” Id. at 489-

90. Rather, the Court emphasized, where it “clearly

ome.

15

applies,” the specific habeas statute — both the cause of

action it authorizes and the limitations it imposes on that

cause of action — “must be understood to be the exclusive

remedy available ....”. Id. at 489; see also Spencer v.

Kemna, 523 U.S. 1, 20 (1998) (Souter, J., concurring) (“In

the manner of [Preiser], I read the ‘general’ §1983 statute

in light of the ‘specific’ federal habeas statute ....”).

The Ninth Circuit’s analysis here invites the very

“frustrat[ion] of explicit congressional intent” that this

Court has condemned in the Preiser line of cases. See

Jacques & Beerman, supra at 1, at 750 (noting the

similarities between §1983’s interaction with §332(c)(7)

and the habeas statute). Again, citing the short 30-day

statute of limitations (which it called “a burden on an

aggrieved plaintiff, not a benefit”) and the “lack of any

damages” remedy (or provision for fees), the Ninth Circuit

found §332(c)(7)’s remedial scheme not to be

comprehensive and, accordingly, held that §1983 must be

available. Pet. App. 8a. And again, with respect to the

latter issue, the court expressly assumed that the absence

of any express provision in the Communications Act for

damages implied not that Congress “intended to foreclose

damages,” but instead that Congress “intended to

preserve an aggrieved plaintiffs right to invoke §1983.”

Pet. App. 7a. But that is akin to saying that because the

federal habeas statute imposes an _ exhaustion

requirement, see 28 U.S.C. §2254(b), or (like §332(c)(7))

does not authorize damage awards, see Preiser, 411 U.S.

at 494, inmates must be able to invoke §1983, which

entails neither limitation. This Court has squarely — and

repeatedly — rejected that view. See, e.g., Heck, 512 U.S.

at 483-87; Preiser, 411 U.S. at 489-90. The same

considerations counsel rejection of the logic underlying

the Ninth Circuit’s decision here.

3. Common Sense. Finally, and with respect, the logic

underlying the Ninth Circuit’s decision in this case defies

common sense. Taken to its logical extreme, the Ninth

Circuit’s view seems to be that any restriction on a

plaintiffs ability to recover under a substantive statute’s

?

16

cause of action — whether a short limitations period, the

absence of a damages remedy or fees, or some other

restriction — as a basis for finding that §1983 remains

available.

But by that logic, the whole Sea Clammers line of

cases evaporates. If, as the Ninth Circuit’s decision

suggests, any supposed limitation in a substantive

statute’s remedial scheme could be bridged by resort to

§1983, then Sea Clammers would have no independent

force at all; a statute’s remedial scheme would be

sufficiently comprehensive to preclude resort to §1983

only when it provided the full complement of remedies

(e.g., injunctions, damages, fees, generous statute of

limitations) that are available under §1983 — that is, only

when resort to §1983 would be wholly unnecessary and

superfluous. Like the Preiser rule that preceded it, the

Sea Clammers rule has bite only when it is used to

enforce — and to prevent plaintiffs from “bypass[ing}”or

“circumvent{ing]” -— limits embodied in substantive

statutes’ remedial schemes. Smith, 468 U.S. at 1012; Sea

Clammers, 453 U.S. at 20. By using those same limits

(here, a short statute of limitations and the absence of a

damages remedy) to justify dispensing with the Sea

Clammers rule and permitting resort to §1983, the Ninth

Circuit’s decision actually extinguishes the Sea Clammers

rule altogether.

* * *

There is one final point that should be made explicit.

Not only is resort to §1983 in this case inconsistent with

Sea Clammers, but it is also unnecessary to the

vindication of would-be wireless operators’ rights with

respect to the siting and _ construction of

telecommunications facilities. In case after case, wireless

operators have sued to enforce their rights under

§332(c)(7) — and won — without relying on §1983. See, e.g.,

New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002);

National Tower, LLC v. Plainville Zoning Bd. of Appeals,

297 F.3d 14 (1st Cir. 2002); Preferred Sites, LLC v. Troup

County, 296 F.3d 1210 (11th Cir. 2002); Omnipoint Corp.

17

v. Zoning Hearing Bd. of Pine Grove Twp., 181 F.3d 403

(3d Cir. 1999); Cellular Tele. Co. v. Town of Oyster Bay,

166 F.3d 490 (2d Cir. 1999); see also Jacques & Beerman,

supra at 1, at 754 & n.102 (collecting district court cases).

Further, the courts of appeals have held (to our

knowledge, uniformly) that injunctive relief — specifically,

an order directing the relevant state or local zoning

authority to permit construction — is available under

§332(c)(7). See New Par, 301 F.3d at 399-40; National

Tower, 297 F.3d at 21-22; Preferred Sites, 296 F.3d at

1221-22; Omnipoint, 181 F.3d at 410; Town of Oyster Bay,

166 F.3d at 497.! Indeed, it bears emphasis that the

respondent here, Mr. Abrams, prevailed on his §332(¢)(7)

claim in the district court, which entered a “judgment of

injunction” expressly “enjoin[ing], mandat[ing] and

compell[ing]” the City to “set aside its earlier resolution

denying plaintiffs application” and to “adopt a new

resolution granting” that application. Pet. App. 13a-14a.

If, as seems clear, wireless operators like Mr. Abrams

can obtain the regulatory approvals they seek through

suits for injunctive relief directly under §332(c)(7), what is

fueling the recent rush to §1983? The answer seems to us

plain enough, but perhaps needs to put out into the open.

The answer is attorney’s fees. Pursuant to the so-called

“American rule” (see supra at 7), attorney’s fees are not

available under §332(c)(7); 42 U.S.C. §1988, by contrast,

expressly authorizes fee awards in suits brought under

§1983. Plaintiffs’ lawyers thus have an obvious

preference for §1983 over §332(c)(7), and an obvious

incentive to file their §332(c)(7) suits under §1983’s cover.

But for two reasons, paying plaintiffs’ lawyers’ attorney’s

fees seems to us a hollow (if not perverse) reason for

chucking the specific cause of action that Congress

a in §332(c)(7) in favor of §1983’s more liberal

scheme.

1 | The Ninth Circuit’s suggestion that §332(c)(7) “contain[s] no

remedies at all” and “does not provide for any type of relief’ (Pet. App.

6a, 7a-8a) is thus plainly wrong.

18

First, as Judges Posner and Carnes have both pointed

out using colorful language, the telecommunicatiens

conglomerates that are typically (though concededly not

here) the plaintiffs in §332(c)(7) cases hardly fit the mold

of the civil-rights victims Congress had in mind when it

enacted §1988. See PrimeCo Personal Comms. Ltd. P’ship

v. City of Mequon, 352 F.3d 1147, 1152 (7th Cir. 2003)

(Posner, J.) (emphasizing that whereas §1988 was

“enacted in recognition that civil rights suits normally pit

individuals, often socially marginal, unpopular, and

impecunious, against weil-funded public officers in cases

whose political significance may dwarf the monetary

stakes,” the Communications Act “creates rights in

telecommunications enterprises,” which “have _ the

wherewithal to finance their own litigation without the

bovs: given by fee-shifting statutes”); AT&T Wireless

PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1330 (11th

Cir. 2000) (Carnes, J., concurring), vacated on rehg en

banc, 260 F.3d 1320, appeal dismissed following

settlement, 264 F.3d 1314 (2001) (noting that whereas

“Section 1988 was intended to help the civil rights Davids

of the world do battle with the governmental Goliaths,”

telecommunications companies’ “financial self-interest

and the vast sums at stake make them more than happy

to serve as ‘private attorneys general’ to enforce the

legislative measures that they have lobbied through

Congress’).

Second, this Court has often remarked (with regret)

the tendency of attorney’s-fees requests to “result in a

second major litigation.” E.g., Buckhannon Bd. and Care

Home, Inc. v. West Virginia Dep’t of Health & Human

Resources, 532 U.S. 598, 609 (2001); Independent

Federation of Flight Attendants v. Zipes, 491 U.S. 754,

766 (1989); Hensley v. Eckerhart, 461 U.S. 424, 437

(1983). The risk of cases bogging down in disputes over

fees is particularly acute in the current context given

Congress’ stated purpose of “encourag[ing] the rapid

deployment of new telecommunications technologies,”

Pub. L. No. 104-104, 110 Stat. 56 (1996), and

§332(c)(7)(v)’s express requirement that equipment-siting

|

19

disputes be resolved “expedit[iously].” Indeed, in the light

of these concerns, the Eleventh Circuit has emphasized

“the developing case law” holding that simple injunctive

relief — the form of relief that the courts have uniformly

held is available under §332(c)(7) itself, see supra at 17 —

“best serves the [Communications Act’s] explicit goal of

expediting resolution of this type of action.” Preferred

Sites, 296 F.3d at 1222 n.13.

CONCLUSION

F or the foregoing reasons, this Court should grant the

petition for certiorari.

Respectfully submitted,

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record*

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

July 1, 2004 (334) 242-7401