Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

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No. 03-1601

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Jn the Supreme Court of the Cnited States

CITY OF RANCHO PALOS VERDES, CALIFORNIA, ET AL.,

PETITIONERS

v.

MARK J. ABRAMS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUTT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JAMES A, FELDMAN

Assistant to the Solicitor

General

THOMAS M. BONDS

1. GLENN COHEN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Section 332(c)(7)(B)(v) of the Communications Act of

1934, 47 U.S.C. 332(c)(7)(B)(v), authorizes “[ajny person

adversely affected” by a state or local decision re-

garding the placement and construction of wireless

service facilities to bring an action challenging the

decision in federal court on the ground that it does not

comply with the federal standards set forth in Section

332(c)(7)(B) of the Act. The question presented is:

Whether a plaintiff may also bring an action in

federal court under 42 U.S.C. 1983 challenging such a

state or local decision on the same ground.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

1. Legal framework

2. Factual and procedural background

Summary of argument

Argument:

I. Section 332(c)(7) provides an explicited remedial

scheme that is incompatible with a right of action

under 42 U.S.C. 1983 11

A. Section 332(c)(7) is a “comprehensive” scheme

within the meaning of this Court’s precedent

because it allows private parties to obtain

judicial review of alleged violations of the

statutory requirements 14

B. The court of appeals’ conclusion that Section

332(c)(7)(B)(v) is not “remedial” is mistaken .........

C. A right of action under Section 1983 would

be incompatible with Section 332(€)(7) ............+++

II. The Telecommunications Act’s general savings

clause does not support the availability of an action

Cor, hw Nw =

under Section 1983 25

Conclusion 28

Appendix >: la

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001) 12

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

U.S. 240 (1975) 23

Azer v. Connell, 306 F.3d 930 (9th Cir. 2002) ................. 23-24

Blessing v. Freestone, 520 U.S.329 (1997) » £8¢

8, 12, 13, 18, 20, 22

(III)

IV V

Cases—Continued: Page Cases—Continued: Page

Cannon v. University of Chicago, 441 U.S. 677 Playboy Enters., Inc. v. Public Serv. Comm’n,

(1979) 12 906 F.2d 25 (1st Cir.), cert. denied, 498 U.S. 959

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d (1990) 22

490 (2d Cir. 1999) 16 Preferred Sites, LLC v. Troup County, 296 F.3d

Davis v. Passman, 442 ™" >, 228 (1979) 16 1210 (11th Cir. 2002) .....-...- — 16

Deckert v. Independence S.ares Corp., 311 U.S. PrimeCo Pers. Communications, Ltd. P’ship v.

282 (1940) 16 City of Mequon, 352 F.3d 1147 (7th Cir. 2003) ........ 7, 17, 23

Fogerty v. Fantasy, Inc., 510.U.S. 517 (1994) 2.0... 23 Smith v. Robinson, 468 U.S. 992 eared avenge 13, 14, 15

Franklin v. Gwinnett County Pub. Schs., 502 U.S. Steel Co. v. Citizens for a Better Env't, 523 U.S.

60 (1992) 16 83 (1998) 20

Golden State Transit Corp. v. City of Los Angeles, Suter v. Artist M ” 503 U.S. 347 (1993) 2,12

493 U.S. 103 (1989) 12 Verizon Communications, Inc. v. Law Offices of

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ......sseesuee -2,7,8, Curtis Trinko, 124 S. Ct. 872 (2004) ...... 27

12, 13, 21, 22 Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, . (1990) 2, 12, 13, 18, 19

442 U.S. 366 (1979) 24 Wilson v. Garcia, 471 US. 261 (1985) 23

Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. Wright v. City of Roanoke Redevelopment Hous. Auth,

1836 (2004) 23, 24 771 F.2d 833 (4th Cir. 1985), rev'd, 479 U.S. 418

Livadas vy. Bradshaw, 512 U.S. 107 (1994) 20 (1987) 12, 13, 18, 25

Maine v. Thiboutot, 448 U.S. 1 (1980) . 11 Statutes and rule:

Middlesex County Sewerage Auth. v. National Sea _ ’

Clammers Ass'n, 453 U.S. 1 (1981) 9, 13, cote CON, TM. b. he BS 24

14, 15, 21-22, 26, 27 we

National Tower, LLC vy. Plainville Zoning Bd. of ey eg seesintiamretudnipancsmadann cana "

Appeals, 297 F.3d 14 (1st Cir. 2002) 16 47 US.C. 1510) 3

New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 47 U.S.C. 201(b) x 3

—_ | . ss 47 U.S.C. 303(r) 3

Nextel Partners Inc. v. Kingston Township, 286 47 US.C. 332(eX7) passim

F Sd 687 (0 Cir. 2002) 3, 7, 16, 17, 23, 27 47 U.S.C. 332(e 7A) 3

Omnipoint Communications, Inc. v. City of White 47 U.S.C. 332(eX7(B) 3, 21, 24

Plains, 175 F. Supp. 2d 697 (S.D.N.Y. 2001) ......20c0000 16, 17 47 U.S.C. 332(e 7B) 4

Pasty v. Board of Regent, 457 U.S. 496 (1982) ................. 25 47 U.S.C. 332(eX7( Bi) 6

Phelps v. Housing Auth., 742 F.2d 816 (4th Cir. 47 U.S.C. 332(e(7(b OUD 6

1984) 18 47 U.S.C. 332(e(7) Bi) 4

47 U.S.C. 332(e7)(B iii) 4, 7, 16

VI

Statutes and rule—Continued: Page

EE 3,4

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Education of the Handicapped Act, 20 U.S.C. 1400

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AR a 15

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ee 15

a ae ED cecmennmntecninsnssnntecennetisteseines 15

Se > EI IED nsiicrntnenicnemmnenimnnemns 15

Federal Water Pollution Control Act, 33 U.S.C.

BEES 66 BOG, canseccsnnsssnseiffpesssescsessenmasencnsnemepnessmsasanpeovenseananensnenass 14

Marine Protection, Research, and Sanctuaries Act

Oe eee ae ee BO GE GD, ccerccnccmarstrnntsssescmntencnnecccmsenes 14

Medicaid Act, 42 U.S.C. 1396 et seq.: 19

4B UBL. BERG Gemme. V BOG) cccecccccccnscsscssscssserscssassssssssscseee 19

42 U.S.C. 1396a(a)(13)(A) (Supp. V 1988) .......cccccsesceeeseees 19

Telecommunication Act of 1996, Pub. L. No. 104-104,

es. ie TEED cxctcctstninnsinnsceunnnnnmemmmnnsitemmmmmnene 3, 23

§ 601(b)(1), 110 Stat. 143 (47 U.S.C. 152 note) ..... 9, 11,27

§ 601(c)(1), 110 Stat. 143 (47 U.S.C. 152 note) ......... 25, 26

Se es UE citicntnerpmenniccecieneianienieenninneen 23, 24

Se es IID cerennnccnieenncenmminnennneniaionntiaiin 24

SP A ED ceneemmcensnmnmeteeninne 26

es HI IITTIED cinsninssadeenssnntimaniaseniimpbennsiitiabitebiniimmadeiniidie 26

GF ates UTI secosnsssnibiniciscicenttcintaiennnnpniimaniatabindinnsinaneattinntaniies passim

i Tei UIE? sascirviacncensiepiieneinsiienitaliciaaaiinbiiaaaiienitansiapiapmantaa init 24

es STE cencceircccernnsepettieniniincteneiennepninens 1, 6, 7, 10, 22, 23

ee SD cenrnirscsnnneseniinseninnnain " 23

Cal. Code Civ. P. § 340.3 (West Supp. 2004) 2000s 24

Miscellaneous:

H.R. Rep. No. 204, 104th Cong., Ist Sess. (1995) ................ 2

In the Supreme Court of the Anited States

No. 03-1601

CITY OF RANCHO PALOS VERDES, CALIFORNIA, ET AL.,

PETITIONERS

v.

MARK J. ABRAMS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a plaintiff

may pursue an action for damages and attorney’s fees

under 42 U.S.C. 1983 and 1988 to challenge the con-

formity of a local governmental decision to a federal

statute, where the plaintiff can enforce the same federal

rights under an express right of action created by the

federal statute at issue. The United States is involved

in a wide array of federal-state cooperative programs

and regulatory regimes in which authority, program

implementation, and fiscal responsibility are allocated

in various ways among federal, state, and local

governmental entities. As a consequence, the United

(1)

2

States has a substantial interest in the standards by

which courts decide whether the statutory provisions

establishing such programs and regulatory regimes are

enforceable under 42 U.S.C. 1983. The United States

has participated as amicus curiae in a number of this

Court’s cases presenting such questions in recent years.

See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002);

Blessing v. Freestone, 520 U.S. 329 (1997); Suter v.

Artist M., 503 U.S. 347 (1992); Wilder v. Virginia Hosp.

Ass’n, 496 U.S. 498 (1990).

STATEMENT

1. Legal Framework

Providers of personal wireless services (such as

cellular telephone service) require a network of facili-

ties in order to supply their services to the public. For

example, wireless service providers often erect anten-

nas on top of communications towers.

Although local zoning boards do not regulate wireless

communications directly, their antenna siting decisions

historically have threatened to impede the development

of wireless communications. See H.R. Rep. No. 204,

104th Cong., Ist Sess. 95 (1995). When Congress con-

sidered telecommunications reform, it found that zoning

had impaired the development of the wireless telecom-

munications industry. Congress concluded that “[s]tate

and local requirements, siting|,] and zoning decisions”

had “created an inconsistent, and, at times, conflicting

patchwork of requirements” that were “inhibit[ing] the

deployment” of wireless communications services. Id.

at 94.

Congress enacted the Telecommunications Act of

1996 (TCA) to “promote competition and reduce regula-

tion in order to secure lower prices and higher quality

services for American telecommunications consumers

3

and encourage the rapid deployment of new telecom-

munications technologies.” TCA, Pub. L. No. 104-104,

Preamble, 110 Stat. 56. While recognizing that the

States retain primary authority for land use regulation,

the TCA amended Section 332(c) of the Communica-

tions Act to impose specific restrictions on state and

local regulation of personal wireless service facilities.

See 47 U.S.C. 332(c)(7); see also Nextel Partners Inc. v.

Kingston Township, 286 F.3d 687, 691 (3d Cir. 2002).

Section 332(c)(7) provides that, “[e]xcept as pro-

vided” in its own subparagraphs, “nothing in [the Com-

munications Act] shatttimit or affect the authority of a

State or local government * * * over decisions

regarding the placement, construction, and modification

of personal wireless facilities.” 47 U.S.C. 332(¢)(7)(A).

In a subparagraph entitled “Limitations,” the Act then

details the restrictions on the exercise of such state or

local authority. The substantive constraints imposed by

that provision are that state and local regulation may

not “unreasonably discriminate among providers of

functionally equivalent services” or “prohibit or have

the effect of prohibiting the provision of personal wire-

less services.” 47 U.S.C. 332(c)(7)(B)(i). In the only

provision expressly granting the Federal Communica-

tions Commission (FCC) a role, the Act also precludes

state or local regulation of “personal wireless service

facilities on the basis of the environmental effects of

radio frequency emissions to the extent that such

facilities comply with the [Federal Communications]

Commission’s regulations concerning such emissions.”

47 U.S.C. 332(c)(7)(iv).’ Section 322(c)(7)(B) also

! The FCC has broad jurisdiction to implement all of the

provisions of the Communications Act in the public interest. See

47 U.S.C. 151, 154(i), 201(b), 303(r). That jurisdiction may include

4

imposes procedural restrictions on state and local

decisionmaking, specifying that decisions denying a

placement or construction permit must be “in writing

and supported by substantial evidence contained in a

written record,” 47 U.S.C. 332(¢c)(7)(B)(iii), and that

zoning authorities must act on a request for a permit

within a reasonable period of time, 47 U.S.C.

332(c)(7)(B)(ii).

Finally, the Act contains an explicit provision author-

izing an action in court to enforce its limitations:

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.

47 U.S.C. 332(c)(7)(B)(v).

2. Factual And Procedural Background

a. Respondent, Mark J. Abrams, is an FCC-licensed

amateur radio operator who also provided personal

wireless services from his home. Pet. App. 2a. In 1990,

petitioner, the City of Rancho Palos Verdes, California,

granted respondent a permit to construct a 40-foot

antenna on his property for amateur use. Jd. at 2a, 22a.

In April 1990, a permit was issued, perhaps mistakenly,

authority to interpret the various provisions of Section 332(c)(7),

such as the prohibitions against state or local government actions

that “unreasonably discriminate among providers of functionally

equivalent services” or “prohibit or have the effect of prohibiting

the provision of personal wireless services,” 47 U.S.C.

332(c)(7)(B)(i); see also 47 U.S.C. 332(¢)(7)(B)iv). The Commission,

however, has not promulgated regulations addressing any of the

provisions of Section 332(c)(7) at issue in this case.

5

allowing respondent to extend his antenna to its

current height of 52.5 feet. Jd. at 22a. Notwithstanding

that his permit allowed only amateur use, respondent

used the antenna for both commercial and amateur use.

Id. at 2a. In 1999, after the City learned of respon-

dent’s unauthorized commercial use, it obtained an

injunction preventing him from using his antenna for

commercial purposes until he obtained a conditional use

permit. /bid.

Respondent applied for the conditional use permit,

but the City’s Planning Department adopted a resolu-

tion denying the permit application. Pet. App. 23a; see

id. at 54a-63a. Respondent appealed the decision to the

City Council, which adopted a resolution upholding the

Planning Commission’s decision. Jd. at 34a-53a. The

City Council’s resolution stated as its reasons that

respondent’s antenna had been used for commercial and

not solely amateur purposes as authorized by his

permit, id. at 39a-40a; the antenna exceeded 40 feet in

height, id. at 39a; the antenna would “perpetuate exist-

ing adverse visual impacts in support of a use that

disproportionately benefits the commercial interests of

the applicant to the detriment of the immediately

surrounding neighborhood,” id. at 41a; and approving

the permit would set a precedent for similar projects

with adverse visual impacts, 7bid.

The City Council also addressed the relevant pro-

visions of the Communications Act. The Council stated

that there was no discrimination among service pro-

viders because the permit denial rested on the adverse

visual and aesthetic impacts of the antenna and respon-

dent’s refusal to mitigate those effects. Pet. App. 47a-

48a. The Council also concluded that the denial did not

prohibit the provision of wireless services because

there was an alternative site in the city where respon-

6

dent could increase his transmission coverage, id. at

48a-49a, and he could achieve better coverage through

the use of multiple, smaller antennas, ibid.

b. Respondent brought suit in the United States

District Court for the Central District of California and

invoked both the cause of action specifically provided

by Section 332(c)(7)(B)(v) of the Communications Act

and 42 U.S.C. 1983. Respondent filed his action with-

in the strict time deadline provided by Section

332(c)(7)(B)(v). He claimed that the City Council’s

determination violated Section 332(c)(7) of the Com-

munications Act in three ways: (1) it unreasonably

discriminated against providers of functionally equi-

valent personal wireless services (47 U.S.C. 332

(c)(7)(B)(i)(1)), (2) it had the effect of prohibiting the

provision of personal wireless services (47 U.S.C.

3382(e)(7)(B)i)U1T)), and (3) it was not supported by

substantial evidence contained in the written record (47

U.S.C. 332(c)(7)(B)(iii)). Pet. App. 17a. Respondent

sought both an injunction requiring the City to issue a

permit allowing commercial use of the tower, and

damages and attorney’s fees under 42 U.S.C. 1983 and

1988. Pet. App. 17a-18a.

The district court found that the City’s decision was

not supported by substantial evidence contained in the

written record. Pet. App. 25a-26a. The court rejected,

however, respondent’s claim that the decision had the ~

effect of prohibiting the provision of personal wireless

services, id. at 32a, and, in light of its disposition, found

it unnecessary to determine whether the decision un-

reasonably discriminated against providers of func-

tionally equivalent personal wireless services, id. at

30a. As relief, the district court entered an order va-

cating the City Council’s denial of respondent’s permit,

remanded the matter to the City Council, and ordered

7

the City Council to grant the permit subject to reason-

able conditions. /d. at 13a-15a. The district court

denied the request for damages and attorney’s fees

under 42 U.S.C. 1983 and 1988, concluding that those

remedies were unavailable. Pet. App. 14a-15a.

c. Respondent sought appellate review of the dis-

trict court’s determination that remedies under Section

1983 and 1988 were not available for the City’s violation

of the “substantial evidence” requirement of Section

332(c)(7)(B)(iii). Pet. App. 3a. The Ninth Circuit re-

versed and remanded, id. at 12a, disagreeing with the

Third and Seventh Circuits. See PrimeCo Pers. Com-

munications, Ltd. Partnership v. City of Mequon, 352

F.3d 1147, 1152-1153 (7th Cir. 2003); Nextel Partners,

supra.

The court of appeals noted at the outset that, in order

to establish the availability of Section 1983 to remedy

violation of a federal statute, the plaintiff bears the

burden of establishing that Congress, in enacting the

relevant statute, intended to create a federal right.

Pet. App. 3a-4a; see Gonzaga Univ. v. Doe, 536 U.S.

273, 283 (2002); Blessing v. Freestone, 520 U.S. 329, 340

(1997). The court observed, however, that “(t]he par-

ties do not dispute the fact that the TCA clearly grants

enforceable ‘rights.’” Pet. App. 4a. The court therefore

concluded that “the only question in this case is

whether the City can rebut the presumption that Con-

gress intended § 1983 remedies to be available for TCA

violations.” Ibid.

The court of appeals recognized this Court’s con-

clusion that “[oJnce a plaintiff demonstrates that a

statute confers an individual right, the right is pre-

sumptively enforceable by § 1983,” Gonzaga Univ., 536

U.S. at 284, but that the presumption could be over-

come by showing, inter alia, that Congress “creat[ed] a

8

comprehensive enforcement scheme that is incom-

patible with individual enforcement under § 1983.” Jd.

at 285 n.4 (quoting Blessing, 520 U.S. at 341). See Pet.

App. 3a-5a. Here, the court of appeals was of the view

that Section 332(c)(7) did not establish such a scheme.

Recognizing that Section 332(c)(7) established a “pri-

vate right of action” for “expedited judicial review”

subject to “a short statute of limitations (30 days),” the

court of appeals found that the Section 332(c)(7) re-

medial scheme was insufficient to “close the door on

§ 1983 liability,” because it did “not provide for any

type of relief.” Pet. App. 5a-7a. The court of appeals

rejected the argument that Section 332(c)(7) was “re-

medial,” concluding instead that “[sJhortening the

limitations period to thirty days imposes a burden on an

aggrieved plaintiff, not a benefit.” Jd. at 8a. Acknowl-

edging that Section 332(c)(7) does provide expedited

judicial review, the court stated that “an expedited

decision does nothing to remedy a TCA violation in

itself. Significantly, a court can fully comply with all of

the TCA’s provisions before it determines liability.

Thus, the TCA contains procedural, rather than re-

medial, provisions.” Jd. at 8a-9a.

The court also rejected the argument that Congress’s

intent to preclude recourse to Section 1983 could be

gleaned from the incompatibility of Section 332(c)(7)’s

30-day limitations period and requirement of expedited

review with Section 1983’s longer limitations period and

lack of an expedited review requirement. In the court’s

view, “Congress can limit the time in which a plaintiff

can file for relief, and require an expeditious review in

any court of competent jurisdiction, without inad-

vertently limiting the plaintiff's remedies at the same

time,” and the Section 332(c)(7) restrictions are accord-

9

ingly “compatible with § 1983’s remedial provisions.”

Pet. App. 9a.

Finally, the court of appeals also relied on the TCA’s

general savings clause, Pub. L. No. 104-104, Tit. VI,

§ 601(b)(1), 110 Stat. 143 (47 U.S.C. 152 note), as pre-

serving a Section 1983 action. Pet. App. 10a-12a. The

court distinguished the rejection of a similar savings

clause argument in Middlesex County Sewerage

Authority v. National Sea Clammers Ass’n, 453 U.S. 1,

20 n.31 (1981), by noting that the “TCA’s general -

savings clause forbids the impairment of any federal

‘law’—not the impairment of any ‘right.’ Thus, the

TCA’s general savings clause sweeps more broadly

than those the Supreme Court evaluated in Sea

Clammers and includes § 1983 within its ambit.” Pet.

App. 12a.

SUMMARY OF ARGUMENT

Determining whether an alleged violation of a federal

statute gives rise to a Section 1983 action generally

involves a two-part inquiry. The court must first ask -

whether the plaintiff has shown that the statutory pro-

vision in question gives rise to a federal right. Where

the existence of a federal right is established, Section

1983 is unvailable upon a showing that Congress either

expressly shut the door to private enforcement or im-

pliedly created a comprehensive remedial scheme that

is incompatible with enforcement under Section 1983.

Especially in the context of a statute that creates an

express, but limited, cause of action, the ultimate

inquiry must focus on whether Congress intended that

express cause of action to be exclusive. That is clearly

the case with respect to Section 332(c)(7)(B)(v) of the

Communications Act.

10

Section 332(c)(7)’s scheme is comprehensive in that it

permits aggrieved persons to bring suit and obtain

meaningful judicial relief for violations of the statutory

requirements at issue in a way that is specifically tar-

geted to the relevant context. A statutory scheme need

not be complex in order to be sufficiently comprehen-

sive to reflect an intent to foreclose resort to Section

1983. If a statute expressly creates a cause of action

that provides for meaningful relief, it is “comprehen-

sive” in the relevant sense.

Section 332(c)(7) is remedial in that it provides, at the

very least, for expedited judicial review and the avail-

ability of injunctive relief. The court of appeals mistak-

enly believed that the scheme provided for no relief at

all, but settled law establishes that the absence of an

express enumeration of permissible forms of relief in

Section 332(c)(7)(B)(v) has the effect of conferring on

courts the authority to grant appropriate relief, which

surely includes at least injunctive relief. And a re-

medial scheme need not be as generous as Section 1983

in order to displace it. Indeed, efforts to tailor a

remedial scheme to the specific context by limiting the

time of filing or the types of remedies available evinces

an intent to provide a set of remedies distinct from

Section 1983.

The scheme established by Section 332(c)(7) is incom-

patible with enforcement under Section 1983. Section

1983 provides for damages and attorney’s fees (via

Section 1988), whereas Congress precluded the award

of such attorney’s fees, in accordance with the tradi-

tional American Rule, by failing to provide for them in

Section 332(c)(7)(B)(v). Moreover, while Section 1983

actions are governed by their own limitations rules,

Section 332(c)(7)(B)(v) prominently features an abbre-

viated 30-day statute of limitations period, paired with

11

a requirement of expedited review. Although the court

of appeals suggested that the 30-day limitations period

under Section 332(c)(7)(B)(v) might be applicable in a

Section 1983 suit brought to enforce Section 332(c)(7),

there is no legal basis for allowing a claim-specific

statute of limitations to trump Section 1983’s

limitations period. The more straightforward way to

reconcile the two statutes is to read Section 332

(c)(7)(B)’s express cause of action, not just its limita-

tions period, as exclusive.

Finally, the Telecommunications Act’s general sav-

ings clause does not suggest a different result. In Sea

Clammers, this Court rejected a similar savings clause

argument, and the modest differences in wording be-

tween the savings clauses in Sea Clammers and the

savings clause here do not warrant a different result.

In any event, precluding a Section 1983 remedy here

would not “modify, impair, or supersede” Section 1983

under the terms of the TCA’s savings clause. TCA

§ 601(b)(1), 110 Stat. 143 (47 U.S.C. 152 note). To the

contrary, it would leave Section 1983 actions available

in precisely the same circumstances as before Section

332(c)(7)(B)(v) was enacted.

ARGUMENT

I. SECTION 332(c)(7) PROVIDES AN EXPLICIT

REMEDIAL SCHEME THAT IS INCOMPATIBLE

WITH A RIGHT OF ACTION UNDER 42 U.S.C.

1983

Section 1983 creates a private cause of action against

any person who, under color of state law, deprives

another “of any rights, privileges, or immunities se-

cured by the Constitution and laws” of the United

States. See App., infra, 2a-3a. This Court held in

Maine v. Thiboutot, 448 U.S. 1 (1980), that Section 1983

12

“means what it says” and authorizes suits by private

individuals against state actors to enforce rights

created by federal statutes as well as those created by

the Constitution. Jd. at 4. This Court has reaffirmed

that holding on numerous occasions. See, e.g., Gonzaga

Univ., 536 U.S. at 279; Blessing, 520 U.S. at 340; Suter

v. Artist M., 503 U.S. 347, 355 (1992); Wilder v. Virginia

Hosp. Ass’n, 496 U.S. 498, 508 (1990); Wright v. City of

Roanoke Redevelopment & Hous. Auth., 479 U.S. 418,

423 (1987).

Not all federal statutes create rights, however, and

this Court has established a two-step method of analy-

sis for determining the availability of a Section 1983

action for the violation of a federal statute. £.g.,

Gonzaga Univ., 536 U.S. at 284-285 & n.4; Blessing, 520

U.S. at 340-341; Golden State Transit Corp. v. City of

Los Angeles, 493 U.S. 103, 106 (1989).

First, the plaintiff has the burden of establishing that

Congress, in enacting the statute, “intended to create a

federal right.” Gonzaga Univ., 536 U.S. at 283. Gon-

zaga University makes clear that “if Congress wishes

to create-new rights enforceable under § 1983, it must

do so in clear and unambiguous terms.” Jd. at 290.

Ordinarily, the statute at issue must contain “‘rights-

creating’ language,” id. at 287 (quoting Alexander v.

Sandoval, 532 U.S. 275, 288 (2001), and Cannon v.

University of Chicago, 441 U.S. 677, 690 n.13 (1979)),

and must confer an “individual entitlement” rather

than reflecting an “aggregate” focus, Gonzaga, 536 U.S.

at 287-288 (quoting Blessing, 520 U.S. at 343). Earlier

cases suggested as well that the plaintiff must establish

that “Congress must have intended that the provision

in question benefit the plaintiff,” “that the right assert-

edly protected by the statute is not so ‘vague and

amorphous’ that its enforcement would strain judicial

13

competence,” and that “the provision giving rise to the

asserted right must be couched in mandatory, rather

than precatory, terms.” Jd. at 282 (quoting Blessing,

520 U.S. at 340-341).

“Once a plaintiff demonstrates that a statute confers

an individual right, the right is presumptively enforce-

able by § 1983.” Gonzaga Univ., 536 U.S. at 284. That

presumption may be overcome by establishing that

Congress “specifically foreclosed a remedy under

§ 1983.” Smith v. Robinsen, 468 U.S. 992, 1005 n.9

(1984). Such a showing may be made by demonstrating

“that Congress shut the door to private enforcement

either expressly, through ‘specific evidence from the

statute itself, Wright v. Roanoke Redevelopment and

Housing Authority, 479 U.S. 418, 423 (1987), or ‘im-

pliedly, by creating a comprehensive enforcement

scheme that is incompatible with individual enforce-

ment under § 1983,’ Blessing v. Freestone, 520 U.S. 329,

341 (1997).” Gonzaga Univ., 536 U.S. at 284-285 n.4; see

Wilder, 496 U.S. at 521 (Section 1983 action impliedly

“foreclosed only when the statute itself creates a re-

medial scheme that is ‘sufficiently comprehensive . . .

to demonstrate congressional intent to pree':de the

remedy of suits under § 1983’”) (quoting Se. Clam-

mers, 453 U.S. at 20).

Thus, a statutory scheme that is “comprehensive,”

“remedial,” and “incompatible with individual enforce-

ment under § 1983” will be found to have impliedly

displaced an action under Section 1983. E.g., Gonzaga

Univ., 536 U.S. at 285 n.4; Blessing, 520 U.S. at 341; Sea

Clammers, 453 U.S. at 20. Moreover, when Congress

creates an express cause of action that is limited in

important ways that reflect the specific statutory con-

text, the ultimate question remains whether Congress

intended the express statutory cause of action to

14

supplant the Section 1983 remedy. Properly under-

stood against the backdrop of this Court’s Section 1983

jurisprudence and Congress’s decision to provide an

express, but limited, cause of action, Section 332(c)(7) of

the Communications Act impliedly forecloses a Sectoin

1983 cause of action.

A. Section 332(c)(7) Is A “Comprehensive” Scheme

Within The Meaning Of This Court’s Precedent Because

It Allows Private Parties To Obtain Judicial Review Of

Alleged Violations Of The Statutory Requirements

1. In two cases, this Court has found a federal

statutory scheme to be sufficiently comprehensive so as

to displace Section 1983. The first of those cases, Sea

Clammers, involved the Federal Water Pollution Con-

trol Act, 33 U.S.C. 1251 et seqg., and the Marine Protec-

tion, Research, and Sanctuaries Act of 1972, 33 U.S.C.

1401 et seq., which this Court described as having

“unusually elaborate enforcement provisions.” 453 U.S.

at 13. The statutes at issue in Sea Clammers provided

for administrative enforcement by the Administrator of

the Environmental Protection Agency or a State that

administers its own permit program; judicial review at

the behest of “any interested person” of a number of

EPA actions, including the issuance of permits; and

citizen suits by private persons for injunctions against

pollution by violators. Jd. at 13-14, 17. This Court

concluded that “the existence of these express remedies

demonstrates * * * that Congress intended to * * *

supplant any remedy that otherwise would be available

under § 1983.” Jd. at 21.

The second case, Smith v. Robinson, 468 U.S. 992

(1984), involved proceedings to secure a free and appro-

priate public education under the Education of the

Handicapped Act, 20 U.S.C. 1400 et seg. (1982). The Act

15

provided, inter alia, for notice to a handicapped child’s

parent any time a state agency proposed or refused to

initiate a change in status, 20 U.S.C. 1415(b)(1)(C)

(1982), an opportunity for the parents to inspect their

child’s records, 20 U.S.C. 1415(b)(1)(A) (1982), and the

right to an “impartial due process hearing” with enu-

merated rights, 20 U.S.C. 1415(b)(2) and (d) (1982).

Additionally, the Act allowed a child’s parent or guard-

ian to appeal the decision by the hearing officer to the

state education agency, and ultimately to a federal

district court if unsatisfied with the results. 20 U.S.C.

1415(c) and (e) (1982). Noting the Act’s “elaborate pro-

cedural mechanism to protect the rights of handicapped

children,” 468 U.S. at 1010-1011, this Court found that

the availability of a Section 1983 action “would * * *

render superfluous most of the detailed procedural

protections outlined in the statute,” id. at 1011, which

“would be inconsistent with Congress’ carefully tailored

scheme,” id. at 1012.

2. While the relevant provisions of the Communi-

cations Act are less complex than the enforcement

schemes in Sea Clammers and Robinson, they are

nonetheless “sufficiently comprehensive” to preclude a

statute-specific Section 1983 action. When Congress

expressly creates a cause of action and limits that cause

of action in ways that are sensitive to the particular

statutory context, there is every reason to think that

Congress means the new cause of action to supplant the

Section 1983 remedy and to provide a “comprehensive”

and complete remedial scheme. Sea Clammers, 453

USS. at 20.

Section 332(c)(7)(B)(v) provides in relevant part:

Any person adversely affected by any final action

or failure to act by a State or local government or

16

any instrumentality thereof that is inconsistent with

[these provisions] 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.

See App., infra, 2a. Section 332(c)(7)(B)(v) undoubtedly

creates a cause of action—i.e., a right in a particular

class of persons (“[a]ny person adversely affected”) “to

judicially enforce the statutory rights or obligations.”

Davis v. Passman, 442 U.S. 228, 239 (1979). That cause

of action has two important express incidents that

reflect the unique context in which such actions arise: a

30-day limitations period for commencing an action, and

a requirement for expeditious resolution of the

plaintiffs claim by the court. In addition, Section

332(¢c)(7)(B)(v) necessarily provides for injunctive relief

as aremedy. See Franklin v. Gwinnett County Pub.

Schs., 503 U.S. 60, 69 (1992) (“if a right of action exists

to enforce a federal right and Congress is silent on the

question of remedies, a federal court may order * * *

appropriate relief”); see also Deckert v. Independence

Shares Corp., 311 U.S. 282, 288 (1940) (equitable relief

is appropriate, despite lack of express statutory

reference to such relief).°

* Courts have awarded injunctive relief in actions under

Section 332(c)(7)(Byv). See PrimeCo Pers., 352 F.3d at 1152-1153;

Nextel Partners, 286 F.3d at 695 n.6; New Par v. City of Saginaw,

301 F.3d 390, 399-400 (6th Cir. 2002); National Tower, LLC v.

Planville Zoning Bd. of Appeals, 297 F.3d 14, 21-22 (1st Cir. 2002);

Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th

Cir. 2002); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,

497 (2d Cir. 1999). The Section 332(c)(7)(B)(v) right of action

closely resembles a suit for judicial review of an administrative

action, complete with its requirement of “final action” and the

“substantial evidence” standard of Section 332(c)(7)(B)(iii). This

17

Congress’s creation of a judicial cause of action such

as Section 332(c)(7)(B)(v) to enforce a federal right,

with its express and necessarily implied incidents under

federal law, is “sufficiently comprehensive” to indicate a

congressional intent to preclude a Section 1983 action to

enforce the same right. Although such a cause of action

may not be complex, it is “comprehensive” in the rele-

vant sense because it provides all that is necessary to

enable persons benefitted by the statute to obtain

judicial relief for violations of the federal protections at

issue. See Nextel Partners, 286 F.3d at 694 (compre-

hensiveness turns here on “the availability of private

judicial remedies under the statute giving rise to the

claim”). The availability of private judicial remedies

was the element that the statutes in Sea Clammers and

Robinson had in common, and it is a sufficient condition

for a Congressional enactment to be deemed “compre-

hensive” for purposes of supplanting an action under

Section 1983.°

case, however, does not present the question whether and under

what circumstances other forms of relief are available as well. Cf.

PrimeCo Pers., 352 F.3d at 1153 (damages presumptively available

under Section 332(c)(7)(B)(v)); Omnipoint Communications, Inc.

v. City of White Plains, 175 F. Supp. 2d 697, 707-708 (S.D.N.Y.

2001) (noting that no court has awarded damages under Section

322(c)(7)(B)(v), but concluding that damages are available in a

Section 1983 action to enforce Section 332(c)(7)).

3 Although express statutory causes of action that (as in this

case) allow private parties to bring suit and obtain meaningful judi-

cial review will almost always be sufficient to be considered

“comprehensive” within the meaning of this Court’s Section 1983

decisions, such provisions authorizing judicial review will not

always be necessary in order to supplant the Section 1983 remedy.

Depending on the particular context, remedial schemes that do not

afford meaningful judicial review may nevertheless be sufficiently

“comprehensive” to satisfy this Court’s analysis, e.g., by providing

18

3. That conclusion is supported by three cases in

which the Court found a Section 1983 remedy available:

Wright v. City of Roanoke Redevelopment & Housing

Authority, 479 U.S. 418 (1987), Wilder v. Virginia

Hospital Ass’n, 496 U.S. 498 (1990), and Blessing v.

Freestone, 520 U.S. 329 (1997).

In Wright, low-income housing tenants sought to sue

a public housing authority for the imposition of a utility

consumption surcharge that they claimed deprived

them of their statutory right to pay only the prescribed

maximum portion of their income as rent. 479 U.S. at

420-422. The statutory program as interpreted by the

Fourth Circuit was more complicated than the one in

this case, providing that “[uJnder the statute the Secre-

tary performs extensive audits to verify the authorities’

compliance with the conditions of the ACC, and HUD is

authorized, as contract promisee, to enforce compliance

by the most drastic possible means: termination of the

federal subsidies under the contract.” Wright v. City of

Roanoke Redevelopment & Hous. Auth., 771 F.2d 833,

836 (4th Cir. 1985) (quoting Phelps v. Housing Auth.,

742 F.2d 816, 821 (4th Cir. 1984)). This Court found,

however, that, although the scheme was complex, it

was not sufficiently “comprehensive” because of its lack

of a judicial review provision: “In both Sea Clammers

and Smith v. Robinson, the statutes at issue them-

selves provided for private judicial remedies, thereby

evidencing congressional intent to supplant the § 1983

remedy. There is nothing of that kind found in the

* * * Housing Act.” 479 U.S. at 427 (emphasis added).

In Wilder, an association of public and private hospi-

tals sought to bring suit under Section 1983 challenging

appropriate administrative avenues for relief. See, e.g., U.S. Br. at

24-30, Gonzaga Univ. v. Doe, supra (No. 01-679).

19

the method by which States reimbursed health care

providers under a provision of the Medicaid Act,

42 U.S.C. 1396, that required reimbursement according

to rates that a “State finds, and makes assurances satis-

factory to the Secretary, are reasonable and adequate

to meet the costs which must be incurred by efficiently

and economically operated facilities,” 42 U.S.C.

1396a(a)(13)(A) (Supp. V 1988). Wilder, 496 U.S. at 501-

502. In finding that the Act did not create a compre-

hensive remedial scheme sufficient to displace Section

1983, this Court again contrasted the scheme at issue

with the ones set out in Sea Clammers and Smith v.

Robinson, emphasizing that “(t]he Medicaid Act con-

tains no comparable provision for private judicial or

administrative enforcement.” Jd. at 521 (emphasis

added).

Similarly, in Blessing, where mothers whose children

were eligible for state child support services under

Title IV-D of the Social Security Act filed a Section

1983 suit against the Director of the Arizona Depart-

ment of Economic Security, this Court again found that

the lack of a private remedy made the remedial scheme

insufficiently comprehensive to bar relief under Section

1983:

The enforcement scheme that Congress created in

Title IV-D is far more limited than those in Sea

Clammers and Smith. Unlike the federal programs

at issue in those cases, Title IV-D contains no

private remedy—either judicial or administrative—

through which aggrieved persons can seek redress.

The only way that Title IV-D assures that States

live up <o their child support plans is through the

Secretary’s oversight.

20

520 U.S. at 348 (citation omitted). Cf. Livadas v. Brad-

shaw, 512 U.S. 107, 133-134 (1994) (Congress did not

mean “to foreclose relief under § 1983” where statu oc

contains “complete absence of provision for relief

from governmental interference”). Here, Section

332(c)(7)(B)(v) does provide a private judicial remedy to

ensure that States and local governments live up to

their obligations. Accordingly, it is sufficiently compre-

hensive to preclude a Section 1983 action based on

violation by a state or local government of the obliga-

tions imposed by Section 332(¢)(7).

B. The Court Of Appeals’ Conclusion That Section a8

(c)(7)(B)(v) Is Not “Remedial” Is Mistaken

1. The main thrust of the court of appeals’ reasoning

was that Section 332(c)(7) is insufficiently “remedial”

because it “does not provide for any type of relief.” Pet.

App. 7a. That reading of the statute is mistaken.

~~ Initially, the court of appeals erred in concluding

(Pet. App. 7a) that Section 332(c)(7)(B)(v) “contains no

remedies at all.” In common with many other federal

causes of action (including Section 1983 itself), Section

332(c)(7)(B)(v) does not specify the relief »ermitted. It

is settled law, however, that Congress’s failure to

specify particular remedies in providing for a cause of

action does not, at a minimum, preclude the availability

of injunctive relief. See pp. 16-17, supra. Indeed, if no

remedy were available to redress a violation of Section

332(c)(7), federal courts would lack Article III

jurisdiction to hear an action under that provision, see

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103,

105-106 (1998), and Congress’s attempt to create a

cause of action would simply be a nullity. The court of

appeals’ belief that Section 332(c)(7)(B)(v) “contains no

remedies at all” is mistaken.

21

2. The court of appeals also appeared to rest its

holding on the court’s perception that Section

332(c)(7)(B)(v) is not “remedial” because the statutory

30-day limitations period “imposes a burden on an

aggrieved plaintiff, not a benefit,” and “(t]he only

benefit to an aggrieved plaintiff is expedited judicial

review.” Pet. App. 8a. The appropriate inquiry in a

case like this is whether Congress expressly or im-

pliedly intended to supplant a Section 1983 remedy, not

whether Congress intended to grant a “benefit” to

plaintiffs. But even if the inquiry were focused on

whether Section 332(c)(7)(B)(v) grants a “benefit,” the

court of appeals would be mistaken. Section

332(c)(7)(B)(v) creates a most notable “benefit”—an

express cause of action for an aggrieved person to

obtain judicial relief from a flawed state or local de-

cision concerning the siting or construction of personal

wireless service facilities.

Insofar as the court of appeals reasoned that a

Section 1983 cause of action should be available because

Section 332(c)(7)(B) confers no “benefit” on a plaintiff in

comparison with Section 1983, that inquiry would be

fundamentally mistaken. Having determined that the

plaintiff possesses a federal right—an issue that was

not litigated by the parties in this case, see Pet. App.

4a—a court applying the Gonzaga inquiry must next

determine whether Congress “shut the door to private

enforcement either expressly * * * or impliedly.”

536 U.S. at 284 n.4 (internal quotation marks omitted).

Where Congress has expressly created an alternative

judicial remedy that contains restrictions not found in

Section 1983, that provides a strong indication that

Congress intended those restrictions—and not the

more generous standards applicable to a Section 1983

action—to apply. See Sea Clammers, 453 U.S. at 20

22

(“[WJhen a state official is alleged to have violated a

federal statute which provides its own comprehensive

enforcement scheme, the requirements of that enforce-

ment procedure may not be bypassed by bringing

suit directiy under § 1983.”) (internal quotation marks

omitted). Thus, the fact that an express cause of action

in this sense confers no “benefit” on a plaintiff relative

to Section 1983 strongly supports the conclusion that

Congress intended to preclude a plaintiff from bringing

a Section 1983 action in its place. Indeed, the court of

appeals’ reasoning to the contrary would lead to the

conclusion that the only cause of action sufficient to

displace Section 1983 would be one that (at a minimum)

reproduced Section 1983. Cf., e.g., Playboy Enters.,

Inc. v. Public Serv. Comm’n, 906 F.2d 25, 33 (1st Cir.)

(“For certain, a statute’s express remedies need not be

as comprehensive or efficient as § 1983 in order to

evince an intent to preclude use of § 1983.”), cert.

denied, 498 U.S. 959 (1990).

C. A Right Of Action Under Section 1983 Would Be Incom-

patible With Section 332(c)(7)

This Court has indicated that Congress’s intention to

displace Section 1983 may also be evidenced by incom-

patibilities between Section 1983 and the particular

statute for which Section 1983 is said to provide a

remedy. See Gonzaga Univ., 536 U.S. at 284 n.4;

Blessing, 520 U.S. at 342. Here, at least two such in-

compatibilities are present.

First, application of Section 1983 would allow the

award of attorney’s fees to a party who prevailed on a

claim that the underlying strictures of Section 332(c)

had been violated. See 42 U.S.C. 1988. As this Court

has explained, however, “it is the general rule in this

country that unless Congress provides otherwise, par-

23

ties are to bear their own attorney’s fees.” Fogerty v.

Fantasy, Inc., 510 U.S. 517, 533 (1994); see Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,

247-262 (1975). Congress, which is surely aware of that

rule, did not provide for awards of attorney’s fees in

Section 332(c)(7)(B)(v), and a prevailing plaintiff in a

suit brought directly under that provision would thus

have no entitlement to a fee award. For that reason,

permitting a Section 1983 action would be incompatible

with Section 332(c)(7). See PrimeCo Pers., 352 F.3d at

1152; Nextel Partners, 286 F.3d at 695.

Second, Section 332(c)(7)(B)(v) provides that a suit

must be commenced within 30 days of the action or

failure complained of, and requires the court hearing

the suit to adjudicate it “on an expedited basis.” The

evident purpose of those requirements is to speedily

resolve siting disputes and effectuate “the rapid deploy-

ment of new telecommunications technologies” in fur-

therance of the public interest. TCA Preamble, 110

Stat. 56. By contrast, Section 1983 is subject to its own

limitations rules—either the four-year period provided

for in 28 U.S.C. 1658, see Jones v. R.R. Donnelley

& Sons Co., 124 S. Ct. 1836 (2004), or the appropriate

state limitations period under Wilson v. Garcia, 471

U.S. 261, 267 (1985); see 42 U.S.C. 1988(a).4 For that

4 Although the Third Circuit, Nextel, 286 F.3d at 695, and peti-

tioners (Pet. 24) seem to assume that Section 1983 by itself would

effectively impose a four-year statute of limitations, there appears

to be some uncertainty on that point. As the Court explained in

Wilson v. Garcia, 471 U.S. 261 (1985), Sections 1983 and 1988

require that an action brought under Section 1983 employ the

applicable statute of limitations from the jurisdiction in which the

action is filed. Jd. at 272, 280. In California, that would apparently

mean using a one-year statute of limitations. See Azer v. Connell,

24

reason as well, permitting an action under Section 1983

would be incompatible with Section 332(c)(7)(B)(v). Cf.

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S.

366, 376 (1979) (Title VII violations could not be as-

serted under 42 U.S.C. 1985 because, among other

reasons, “(t]he short and precise time limitations of

Title VII would be grossly altered”).

The court of appeals suggested that any incom-

patibility between the limitations periods in Sections

332(c)(7) and 1983 could be minimized by engrafting

onto a Section 1983 action the short filing period and

expedition requirement of Section 332(c)(7)(B)(v). See

Pet. App. 7a. The court’s novel attempt to hypothesize

a hybrid cause of action serves only to underscore the

implausibility of its ruling. No evidence exists that

306 F.3d 930, 936 (9th Cir. 2002) (citing Cal. Civ. Proc. Code

§ 340(3) (West Supp. 2004)).

Under 28 U.S.C. 1658(a), however, “[e]xcept as otherwise pro-

vided by law, a civil action arising under an Act of Congress

enacted after [December 1, 1990] may not be commenced later

than 4 years after the cause of action accrues.” In Jones v. R.R.

Donnelley & Sons Co., 124 S. Ct. 1836 (2004), this Court held that

the four-year statute of limitations under Section 1658 applies if

the plaintiff's claim was made possible by a post-1990 enactment.

Id. at 1845. That case involved an action brought under portions of

42 U.S.C. 1981 that had been amended by the Civil Rights Act of

1991, Pub. L. No. 102-166, 105 Stat. 1071. Jones, 124 S. Ct. at 1839.

Here, while Section 332(c)(7)(B) was enacted post-1990, Section

1983 was not, and none of its provisions relevant to this action has

been amended since 1990. Under Jones, therefore, the selection

of the appropriate statute of limitations to govern a Section

1983 claim seeking to enforce Section 332(c)(7)(B) would turn on

whether such a cause of action is properly viewed as “arising

under” Section 1983 or, instead, Section 332(c)(7)(B). There is no

need to resolve that question in this case, however, because either

a one-year or a four-year limitations period would be inconsistent

with the 30-day time frame set forth in the Communications Act.

25

Congress, in enacting the 1996 legislation at issue here,

sought to alter the limitations period applicable to

Section 1983 actions. Indeed, the court of appeals’ sug-

gestion would appear to run afoul of the general savings

clause in the Telecommunications Act, which provides

that the Act “shall not be construed to modify, impair,

or supersede Federal, State, or local law.” 47 U.S.C.

152 note. See pp. 25-27, infra. Construing Section

332(c)(7)(B)(v) to alter the limitations period ordinarily

applicable in Section 1983 actions would indeed

“modify” the Section 1983 action, in violation of the

savings clause.”

Il. THE TELECOMMUNICATIONS ACT’S GENERAL

SAVINGS CLAUSE DOES NOT SUPPORT THE

AVAILABILITY OF AN ACTION UNDER SEC-

TION 1983

The Telecommunications Act contains a general

savings clause, which provides:

No implied effect. —This Act and the amendments

made by this Act shall not be construed to modify,

impair, or supersede Federal, state, or local law

unless expressly so provided in such Act or amend-

ments.

5 A Section 1983 remedy may also be inconsistent with the

express cause of action created in Section 332(c)(7)(B)(v) because

the latter (which confers a right to sue on persons adversely af-

fected by a governmental entity”s “final action or failure to act”)

appears to contemplate exhaustion of state or local administrative

remedies, whereas “the existence of a state administrative remedy

does not ordinarily foreclose resort to § 1983.” Wright, 479 U.S. at

427-428 (citing Patsy v. Board of Regents, 457 U.S. 496, 516 (1982)).

If Section 332(c)(7)(B)(v) permits only injunctive relief, a further

incompatibility with Section 1983 would exist.

26

TCA § 601(¢)(1), 110 Stat. 143 (47 U.S.C. 152 note). The

court of appeals believed that this clause demonstrated

an intent not to displace Section 1983, reasoning that

the “plain language” of the clause required such a result

because Section 1983 is a federal law. Pet. App. 10a,

12a. As the court of appeals noted, however, this Court

concluded that two similar savings clauses in Sea

Clammers were not indicative of a congressional intent

to make a Section 1983 action available. See Sea Clam-

mers, 453 U.S. at 7 n.10 (citing 33 U.S.C. 1365(e)); id. at

7 n.11 (citing 33 U.S.C. 1415(g)(5)); id. at 20 n.31 (rejec-

ting argument that savings clauses made Section 1983

action available). The court of appeals sought to

distinguish Sea Clammers on the ground that “[t]he

TCA’s general savings clause forbids the impairment of

any federal ‘law’—not the impairment of any ‘right.’

Thus, the TCA’s general savings clause sweeps more

broadly than those the Supreme Court evaluated in Sea

Clammers and includes § 1983 within its ambit.” Pet.

App. 12a.

The court of appeals’ attempt to distinguish Sea

Clammers is mistaken. First, the savings clauses in

Sea Clammers provided that the environmental

statutes in that case do not “restrict any right which

any person * * * may have under any statute * * *

to seek enforcement * * * or to seek any other relief.”

453 U.S. at 7-8 nn.10-11 (quoting 33 U.S.C. 1365(e) and

33 U.S.C. 1415(g)(5)). This Court held that construing

the environmental statutes in Sea Clammers to pre-

clude a Section 1983 action did not “restrict any right

* * * under any statute * * * to seek enforcement

* * * or * * * relief’ and was therefore permissible

under the savings clauses in Sea Clammers. See 453

U.S. at 20 n.31. Section 1983 is surely both a “right

* * * to seek enforcement * * * or relief’ (under the

27

savings clauses in Sea Clammers) and a “law” (under

the savings clause in this case). If the preclusion of

Section 1983 relief in Sea Clammers did not restrict

any right to seek relief, then precluding Section 1983

relief here does not “modify, impair, or supersede” any

federal law for purposes of the TCA general savings

clause. -

Second, a determination that Section 1983 is not

available to enforce Section 332(c)(7) would not modify,

impair, or supersede Section 1983, which would con-

tinue to operate precisely as it did before Section

332(c)(7) was enacted. The only question in this case is

whether Section 1983 should be expanded to include

a new type of action—a claim that a state or local

government has violated Section 332(c)(7)—which, be-

fore the enactment of that provision, had never

previously been available. A conclusion that Section

1983 should not be expanded to this new territory does

not modify, impair, or supersede Section 1983, and it

accordingly does not violate the TCA’s general savings

clause. See Nextel Partners, 286 U.S. at 696 (“We do

not hold that enactment of the TCA had any effect on

§ 1983; we simply hold that the TCA itself did not

create a right that can be asserted under § 1983 in lieu

of the TCA’s own remedial scheme.”).°

6 In Verizon Communications, Inc. v. Law Offices of Curtis

Trinko, 124 8S. Ct. 872 (2004), the Court addressed a neighboring

TCA savings clause that provides that “nothing in this Act * * *

shall be construed to modify, impair, or supersede the applicability

of any of the antitrust laws.” TCA § 601(b)(1), 110 Stat. 143 (47

U.S.C. 152 note). The Court held that the clause “preserves claims

that satisfy existing antitrust standards,” but that it “does not

create new claims that go beyond existing antitrust standards.”

124 S. Ct. at 878. That holding is consistent with the appropriate

28

APPENDIX

1. Section 332(c)(7)(A) and (B) of Title 47 of the

United States Code provides:

Preservation of local zoning authority

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

NOVEMBER 2004

PAUL D. CLEMENT

Acting Solicitor General

PETER D. KEISLER

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

THOMAS M. BONDY

I. GLENN COHEN

Attorneys

reading of the general savings clause in this case, which preserves

preexisting Section 1983 claims without creating new ones.

(A) General authority

Except as provided in this paragraph, nothing in

this chapter shall limit or affect the authority of a

State or local government or instrumentality thereof

over decisions regarding the placement, construction,

and modification of personal wireless service facili-

ties.

(B) Limitations

(i) The regulation of the placement, construction,

and modification of personal wireless service facili-

ties by any State or local government or instrumen-

tality thereof—

(I) shall not unreasonably discriminate among

providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of pro-

hibiting the provision of personal wireless services.

(ii) A State or local government or instrumen-

tality thereof shall act on any request for authoriza-

tion to place, construct, or modify personal wireless

service facilities within a reasonable period of time

after the request is duly filed with such government

or instrumentality, taking into account the nature

and scope of such request.

(iii) Any decision by a State or local government

or instrumentality thereof to deny a request to place,

construct, or modify personal wireless service facili-

(la)

2a

ties shall be in writing and supported by substantial

evidence contained in a written record.

(iv) No State or local government or instrumen-

tality thereof may regulate the placement, construc-

tion, and modification of personal wireless service fa-

cilities on the basis of the environmental effects of

radio frequency emissions to the extent that such fa-

cilities comply with the Commission’s regulations

concerning such emissions.

(v) 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.

Any person adversely affected by an act or failure to

act by a State or local government or any instrumen-

tality thereof that is inconsistent with clause (iv) may

petition the Commission for relief.

2. Section 1983 of Title 42 of the United States Code

provides:

Civil action for deprivation of rights

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

3a

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the pur-

poses of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be con-

sidered to be a statute of the District of Columbia.

3. Section 1988(b) of Title 42 of the United States

Code provides (brackets in original):

Attorney’s fees

In any action or proceeding to enforce a provision

of sections 1981, 198la, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92-318 [20 U.S.C.

1681 et seq.], the Religious Freedom Restoration

Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious

Land Use and Institutionalized Persons Act of 2000

[42 U.S.C. § 2000cec et seq.], title VI of the Civil

Rights Act of 1964 [42 U.S.C. § 2000d et seq.], or

section 13981 of this title, the court, in its discretion,

may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of

the costs, except that in any action brought against

a judicial officer for an act or omission taken in such

officer’s judicial capacity such officer shall not be

held liable for any costs, including attorney’s fees,

unless such action was clearly in excess of such

officer’s jurisdiction.