Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

() }

No. 03-1601 Lore

In the

Supreme Court of the United States

*

CITY OF RANCHO PALOS VERDES, et al -

Petitioners,

V.

MARK J. ABRAMS,

Respondent.

¢

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

¢

BRIEF OF THE STATES OF ALABAMA,

ALASKA, DELAWARE, HAWAIL ILLINOIS,

INDIANA, MASSACHUSETTS, MISSOURI, MONTANA,

NEY ADA, OHIO, OREGON, SOUTH DAKOTA, TEXAS,

UTAH, VERMONT, AND VIRGINIA, AND THE

TERRITORY OF GUAM AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

¢

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

November 12, 2004 (334) 242-7401

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

° 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

DOUGLAS B. MOYLAN

ATTORNEY GENERAL

TERRITORY OF GUAM

Judicial Center 2-200E

12. W. O’Brien Dr.

Hagatna, GU 96910-5174

MARK J. BENNETT

ATTORNEY GENERAL

STATE OF HAWAII

425 Queen Street

Honolulu, HI 96813

LISA MADIGAN

ATTORNEY GENERAL

STATE OF ILLINOIS

James R. Thompson Ctr.

100 W. Randolph St.

Chicago, IL 60601

STEVE CARTER

ATTORNEY GENERAL

STATE OF INDIANA

Indiana Government

Center South - 5th Floor

302 West Washington St.

Indianapolis, IN 46204

TOM REILLY

ATTORNEY GENERAL

COMMONWEALTH OF

MASSACHUSETTS

1 Ashburton Place

Boston, MA 02108-1698

MIKE MCGRATH

ATTORNEY GENERAL

STATE OF MONTANA

Justice Building

215 N. Sanders

P.O. Box 201401

Helena, MT 59620-1401

JEREMIAH W. (JAY) NIXON

ATTORNEY GENERAL

STATE OF MISSOURI

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

BRIAN SANDOVAL

ATTORNEY GENERAL

STATE OF NEVADA

100 N. Carson Street

Carson City, NV 89701

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

State Office Tower

30 E. Broad St.

Columbus, OH 43215-3428

HARDY MYERS

ATTORNEY GENERAL

STATE OF OREGON

1162 Court Street N.E.

Salem, Oregon 97301

LAWRENCE E. LONG

ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

500 East Capitol Avenue

Pierre, SD 57501-5070

GREG ABBOTT

ATTORNEY GENERAL

STATE OF TEXAS

P.O. Box 12548

Austin, TX 78711-2548

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

Utah State Capitol

Complex

East Office Bldg., Suite 320

Salt Lake City, Utah

84114-2320

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. ati.

il

TABLE OF CONTENTS

CFI SINS FREE BUDD 0000000 sserercceveceszsssveneseonessenounnsssccovecssonseres i

TAs COP A TRI ie veer cccccsevesceseccsccsnovssosnrcososecsssssosssosonese iv

PUTS COR AI CIE ecccrccccoscecoservcevsccssvoversensonsnesesesens 1

SAFEGARY OF A GUIIEIIINE wrccceccoscvsevesecsssecsscccnsvetBenscssscosconess 1

FITS i ticeccsrrsencnnpsenenninmmmnnnnnmanmnmnmnmmaticts 3

I. Section 332(c)(7) Establishes A Sufficiently

“Comprehensive” Remedial Scheme To Preclude

Resort To §1983’s Generic Cause Of Action. ...................5 5

A. Sea Clammers And Its Progeny Establish A

Clear Rule: Where A Substantive Statute

Authorizes Individualized Judicial Review,

Its Remedial Scheme May Not’ Be

Circumvented Through Resort To §1983.............0:00++ 7

B. The Clear Rule Established By The Sea

Clammers Line Of Cases Is Consistent With

This Court's Decisions In Related Contexts. ............. 12

C. The Ninth Circuit's “More Is _ Better”

Approach To Comprehensiveness Is

Unworkable And Risks Rendering Sea

CNIS Po TIGRE CTIIR ccccrccccsncasccseveynnsnooressenensnareswees 15

D. Reliance On §1983 Is Unnecessary To The

Vindication Of §332(c)(7)’s Purposes, Will

Give Plaintiffs’ Lawyers A Windfall, And

Will Frustrate The Efficient Deployment Of

I IID, cnnececcennnsevninennssnsceniogeeniniminanacnmnmnsen 17

II. Section 332(c)(7) Does Not Create Private

“Rights” Enforceable Under §1983. ..........:cccsscssesseseeseneeees 21

- cine

ill

A. Section 332(c)(7) Contains No “Rights-

Creating” Language.............. sone ha tiianbdenieanesannannennneiiineni 23

B. Section 332(c)(7)’s Provisions Are Too Vague

To Create §1983-Enforceable Rights. .............::cc00 2-

C. Principles Of Federalism Counsel Against

- Finding §1983-Enforceable Rights In

PEE D> virecsereicecnesncapinernincieemmmminnsansavinneanninentanien 27

D. Section 332(c)(7)'s Limited Judicial Remedy

Does Not Indicate The Existence Of §1983-

Enforceable Private Rights...................s.cssssssssssssesssere 28

anne ciiscinssioesseancistsesnanieipeniapniasiianniucinennebiiennieinntgsabati 30

iv

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval, 532 U.S. 275 (2001) ........:.cccseseeeees 22, 24

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, 264 F.3d 1314 (2001) ............. 19

Blessing v. Freestone, 520 U.S. 329 (1997).......ccccceccesereeees passim

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

Dep't of Health & Human Resources, 532 U.S. 598

SEITETTD vsscincscinsessiabthninaescinaseneianniciusenininenauninenactininisendniienienniatiaie 20

California v. Sierra Club, 451 U.S. 287 (1981).......cccccesceeeeeeeesees 22

Cannon v. University of Chicago, 441 U.S. 677 (1979)...........0++ 22

Cellular Tele. Co. v. Town of Oyster Bay, 166 F.3d 490

Ga otal BID conssendnsenanieccinininssnssenninemsencenesinenmmnsnmacanntie 17, 18

Dennis v. Higgins, 498 U.S. 439 (1991)......ccccccccsesseeseseereeseeeeeees 19

Edwards v. Balisok, 520 U.S. 641 (1997) .........cscssesssessesseeesseesees 13

FERC v. Mississippi, 456 U.S. 742 (1982) .........sescesecseeseeseeseeees 27

Gonzaga University v. Doe, 536 U.S. 273 (2002)...........++++ passim

Heck v. Humphrey, 512 U.S. 477 (1994) .......ccccsseseseeeeees 12, 14,15

Hensley v. Eckerhart, 461 U.S. 424 (1983) .......cccccsccecesesseeseeseeees 20

Independent Federation of Flight Attendants v. Zipes, 491

SOR, FeO Cee crcesesennentcoreennenentnsemaneneinnentmnmenmmeneninntomasnins 20

Jones v. United States, 529 U.S. 848 (2000) .........ccccccesseeeeeeeeeees 5

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) ..........cceeees 27

Maine v. Thiboutot, 448 U.S. 1 (1980)... eesecseesecesseeeeeseeeeetees 3

ee

er

Vv

Middlesex County Sewerage Auth. v. National Sea

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

Muhammad v. Close, 124 S. Ct. 1303 (2004) .......cccccseeeeeseeneees 13

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

Se OE ee SIRI centnncnrsinnosnesstinscinneiainnmneniomnees 17

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

uaa sen cnncepnenesvemnantnsetesceusenetsnentnestenietntenuniniedeeesininuesemnenneenes 17

Office of Communication of the United Church of Christ

DFO, Sa Fe FRO GL, Ce, BOG an ccecccsessccecsescsvscescnsese 29

Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove

Twp., 181 F.3d 403 (3d Cir. 1999) ............scsccorsrsssssees 17, 18

Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1

SPU onicnsseemnininiecicahiicieniabisiddenenniinseniiceaiantesiiossiionnianieasensebeniaieaniaiel 4

Petersburg Cellular P’ship v. Board of Supervisors, 205

PE ay ATED escecnecesicnicnsocnitnsteinennenicenminisenninnmnnnes 4

Preferred Sites, LLC v. Troup County, 296 F.3d 1210

SE a SERED vescenaneinonenesesescsveteestnendigiisniinembinieneiemiinits 17, 20

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

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

Mequon, 352 F.3d 1147 (7th Cir. 2003) ........ccccseeseeseeeeeeees 19

Scripps-Howard Radio v. FCC, 316 U'S. 4 (1942) .......... 23, 28, 29

Sierra Club v. Morton, 405 U.S. 727 (1972).......cccceceeeseeseeneees 29

Smith v. Robinson, 468 U.S. 992 (1984).......ccseceeeeeees 8, 9, 11, 17

Spencer ©. Kamen, SES US. 1 (2GGG)..n......cccececscssesesssoscssssosessosees 14

Suter v. Artist M., 503 U.S. 347 (1992) oo. eceeseneeeeeseneeee 25, 26

Thompson v. Thompson, 484 U.S. 174 (1988) ..........ccccceseeneeeeees 25

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977).......cccccccsseseeeeeeeeeeees 27

vi

Wart o. Scidin, £22 US. 490 (1975) .....cscccoseccsevsvssessescsnsescesesese 27

Wilder v. Virginia Hospital Ass'n, 496 U.S. 498 (1990).... passim

Wright v. City of Roanoke Redevelopment and Housing

Bg SF EE Ge CT Picticisttatnnscnsnccnivivinienstansicnions passim

Statutes

Communications Act of 1934, Pub. L. No. 73-415, 48

eR E iseiCiien dtcisiscncdionsiinhideitcienpni i, 1,5, 14, 20, 23, 29

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

ee i I sntctiansiceisirensnaninnntncinisioninmdndenion 20, 23, 25, 28

eis UIE iadsaevesinnsaiveniehnarinvchipinianiiievmancuiauieieindsetiies 12, 13, 14

ee I iciiadncssnienarnsssninnssininninbinennsstiicisaumeiviinl passim

Seas Te incaiesiesraccscsicesiesemaiasinesiedehindbieindiibatanidtaintiiainiuasiel i, 9, 18, 19

Ce aE ani ccansceninsenessilecinieivacaniidansddenbionainiesniuminenidoumeiaiiinéas 1

oe ar UI sethscniaicans tater sidesnhieeabienernnitnaniminassinatietanbiieninganaasadeiiemads 1

Se ees Ee crisstenininsiiniairantncininnguntnituenecenenesaennti 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.

| TL TONY ROSTER AICTE TST BET OE we TO passim

H.R. Conf. Rep. No. 104-458 (Jan. 31, 1996)... passim

H.R. Rep. No. 104-204(I), reprinted in 1996

RATS. BD GU By BOT cecesevecsccnsocsvesencsessnscntones 20, 23

S. Rep. No. 94-1011, reprinted in 1976 U.S.C.C.A.N.

Ne Ie OPE sectscrovicnniiccicitnssennsesinniviicinbinganintalaeaeii 18

INTEREST OF AMICI CURIAE

As explained more fully in the amici States’ certiorari-

stage brief, the States’ interests in this case are threefold.

First, although petitioner is a California municipality, the

Communications Act provision at issue here, 47 U.S.C.

§332(c)(7), “repeatedly refers to ‘State or local’ governments,

thus explicitly placing obligations on states.” C. Jacques & J.

Beermann, Section 1983’s “And Laws” Clause Run Amok: Civil

Rights Attorney’s Fees in Cellular Facilities Siting Disputes, 81

B.U. L. Rev. 735, 751-52 (2001). Second, 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, see, e.g., 47 U.S.C.

§§252, 253 - may be enforced via 42 U.S.C. §1983’s generic

cause of action. Third, and 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 rule of Middlesex County Sewerage Auth. v.

National Sea Clammers Ass‘n, 453 U.S. 1 (1981) - like 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.

SUMMARY OF ARGUMENT

Because 47 U.S.C. §332(c)(7) both (i) establishes its own

“comprehensive” remedial scheme and (ii) fails to create

private “rights,” its dictates may not be enforced via §1983.

Because the former condition is dispositive here, the Court

needn't reach the latter.

1. Section 332(c)(7), which expressly provides to any

person “adversely affected” by a local zoning authority’s

decision a private cause of action “in any court of competent

2

jurisdiction,” entails a sufficiently comprehensive remedial

scheme to preclude resort to §1983.

a. Read together, this Court’s decisions - from Sea

Clammers to Gonzaga - establish a clear rule: Where

Congress goes to the trouble of prescribing a private cause of

action to enforce a statute’s directives - at least where, as

here, that cause of action entails some form of

individualized judicial review - the rules, restrictions, and

remedies that attend that cause of action govern, and may

not be circumvented through resort to §1983’s generic terms.

Statutes the Court has found insufficiently comprehensive to

preempt §1983 have uniformly relied entirely on agency

enforcement, and made no provision for private suits.

_ b. The clear rule established in Sea Clammers and its

progeny squares with this Court’s decisions in the Preiser-

Heck line of cases. The point of those decisions has been that

the specific habeas corpus statute - both the cause of action

it authorizes and the limitations it imposes on that cause of

action - trumps §1983’s general terms. So, too, here, a

plaintiff may not simply bypass perceived limitations in

§332(c)(7)'s scheme by suing under §1983.

c. The Ninth Circuit’s “more is better” approach to

comprehensiveness - here, that §332(c)(7) is insufficiently

beneficial to plaintiffs - is unworkable. It offers no

principled basis for distinguishing one statutory cause of

action (with its unique package of rules and remedies) from

the next. Worse, the Ninth Circuit’s view - at its logical

extreme, that any restriction on a plaintiff's ability to recover

on an underlying statute’s cause of action justifies a

conclusion that §1983 remains available - risks extinguishing

the Sea Clammers rule altogether.

d. Reliance on §1983 is unnecessary to the

achievement of §332(c)(7)’s purposes. Time and again,

wireless operators have sued to enforce §332(c)(7) - and

obtained injunctive relief permitting construction - without

relying on §1983. The recent rush to §1983 has been fueled

by the prospect of recouping attorney’s fees. In the long run,

however, large fee awards will only further enrich

3

communications conglomerates at the expense of local

governments and impede the roll-out of new technology.

2. Section 332(c)(7) does not “unambiguously” create

private “rights” enforceable under §1983.

a. Section 332(c)(7)’s substantive provisions are

addressed to the entities being regulated (here, local zoning

boards) rather than to those seeking protection (would-be

wireless operators). Accordingly, unlike Titles VI and IX,

§332(c)(7) entirely lacks the sort of rights-creating language

necessary to the recognition of §1983-enforceable rights.

b. Section 332(c)(7)’s provisions are also too “vague

and amorphous” to create privately enforceable rights. The

key terms “unreasonabl[e] discriminat[ion],” “effect[ive]

prohibit[ion],” and “reasonable period” are not defined or

clarified anywhere in the statute, implementing regulations,

or legislative history.

c. Principles of federalism counsel against finding

federally-enforceable rights in §332(c)(7). Not only is there

no indication that Congress intended to upset the deference

traditionally owed to local zoning decisions, the relevant

evidence shows that Congress sought, as §332(c)(7)’s title

plainly states, to “preserve” local zoning authority.

d. Section 332(c)(7)(v)’s limited judicial remedy does

not indicate the existence of §1983-enforceable rights. That

subsection merely gives aggrieved individuals standing (and

a cause of action) to enforce §332(c)(7)’s provisions. It does

not alter the fundamental nature - i.e., public, not private -

of the rights those provisions protect.

ARGUMENT

The general federal civil-rights statute, 42 U.S.C. §1983,

provides a cause of action for persons alleging deprivations

of “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. In Maine v.

Thiboutot, 448 U.S. 1 (1980), the question arose whether

§1983’s “and laws” clause should be read (i) in light of its

Reconstruction-era pedigree, to authorize only those suits

4

alleging violations of federal statutes aimed at protecting

“equal rights,” or (ii) literally, to sanction suits alleging

violations of any federal statute. Over Justice Powell’s

vigorous dissent, see id. at 11-34, the Court opted for the

latter interpretation, see id. at 4-8.

The following year, however, this Court “recognized two

exceptions to the application of §1983 to statutory

violations”: first, where Congress has either expressly or

impliedly “foreclosed private enforcement of [a] statute in

the enactment itself”; and second, where the statute in

question is not “the kind that create[s] enforceable ‘rights’

under §1983.” Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1, 19 (1981) (citing Pennhurst

State Sch. and Hosp. v. Halderman, 451 U.S. 1, 28 (1981)).

Because the Court in Sea Clammers concluded that “Congress

[had] foreclosed a §1983 remedy” in the statutes there at

issue, it found no need to reach the “second question”

whether those statutes “created ‘rights, privileges, or

immunities’ within the meaning of §1983.” Id.

This case presents the same questions - and requires the

same answer. As an initial matter, because Congress

established in 47 U.S.C. §332(c)(7) a “comprehensive”

remedial scheme to address alleged violations of that statute,

resort may not be had to §1983’s generic cause of action.

Accordingly, here, as in Sea Clammers, the Court need not

address the question whether §332(c)(7) gives rise to private

“rights” enforceable under §1983. Even if the Court were to

address that question, the answer, we submit, would be a

clear no.!

1 We note at the outset that several of §332(c)(7)'s substantive provisions

have been assailed, with some success, as an effort to “compel|{] state and

local governments to administer a federal regulatory program,” in

violation of the Tenth Amendment's anti-commandeering principles.

Petersburg Cellular P’ship v. Board of Supervisors, 205 F.3d 688, 702 (4th Cir.

2000) (opinion of Niemeyer, J.); see also Jacques & Beermann, supra at 1, at

772-86 (§332(c)(7) violates the Tenth Amendment). But cf. Cellular Phone

Taskforce v. FCC, 205 F.3d 82, 96 (2d Cir. 2000) (summarily rejecting Tenth

Amendment challenge). Although no Tenth Amendment question is

5

I. Section 332(c)(7) Establishes A Sufficiently

“Comprehensive” Remedial Scheme To Preclude

Resort To §1983’s Generic Cause Of Action.

In Sea Clammers, this 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.” 453 U.S. at 20. Accordingly, the 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 enforcerrent procedure

may not be bypassed by bringing suit directly under

§1983.’” Id. (citation omitted). The principal question in this

case is whether the private cause of action codified at 47

U.S.C. §332(c)(7) is sufficiently “comprehensive” within the

meaning of Sea Clammers to preclude resort to §1983.

Section 332(c)(7) prescribes an express private cause of

action for expedited judicial review to redress violations of

the Communications Act's wireless 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 ....

47 U.S.C. §332(c)(7)(B)(v).

In the decision below, the Ninth Circuit held that

§332(c)(7)’s remedial scheme is not _ sufficiently

comprehensive to preempt §1983 suits. The court

acknowledged that §332(c)(7) provides for a private cause of

action “by allowing aggrieved plaintiffs the right to bring an

presented here, §332(c)(7)’s constitutional infirmities may well counsel

against its private enforcement through §1983. See, e.g., Jones v. Umited

States, 529 U.S. 848, 857 (2000).

6

action in any court of competent jurisdiction ....” Pet. App.

6a. But, the Ninth Circuit said, “the statute grants no

remedies beyond procedural rights.” Id. It does not, for

instance, “explicitly provide for any types of remedies such

as damages, injunctions, attorney’s fees, or costs.” Id. at 5a.

“Rather,” the court observed, §332(c)(7) “only provides a

short statute of limitations (30 days), expedited judicial

review, and avenues through which a plaintiff can redress

[statutory] violations” in court. Id. That, from the Ninth

Circuit’s perspective, was not enough.

In deciding as it did, the Ninth Circuit embraced what

we, for ease of analysis, have called a “more is better”

approach to Sea Clammers’ comprehensiveness criterion. See

Br. of the States of Alabama, et al., at 6, 8, 9, 10, 14 (certiorari

stage). The Ninth Circuit views a comprehensive statutory

scheme as one that is extensive, and specifically one that

provides plaintiffs with a host of remedial options -

monetary damages, attorney's fees, costs, etc. 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 plaintiff's remedies”). Furthermore, and consistent with

its understanding that a comprehensive scheme should

maximize a plaintiff's 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

presumably attorneys fees, as well) may be had through

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

damages [remedy] in [§332(c)(7)] 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 plaintiff's right

to invoke §1983.” Pet. App. 7a.

7

Thus, on the Ninth Circuit’s view, the fact that a statute

limits the relief a plaintiff may obtain - whether expressly

(as by prescribing a short limitations period) or implicitly (as

by omitting an express damages provision) - in and of itself

indicates that the statute’s scheme is not comprehensive

under Sea Clammers, and that §1983 thus remains available.

As we will demonstrate below, the Ninth Circuit’ reasoning

is flawed on several levels.

A. Sea Clammers And Its Progeny Establish A Clear

Rule: Where A Substantive Statute Authorizes

Individualized Judicial Review, Its Remedial

Scheme May Not Be Circumvented Through Resort

To §1983.

The logic underlying the Ninth Circuit's specific decision

concerning §332(c)(7) - that limitations on a plaintiff's 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 the

decisions that follow it. Those decisions, we will show,

focus not on the procedural rules by which a plaintiff must

abide in bringing his cause of action, or the relief to which he

is (or is not) entitled under that cause of action, but, instead,

on the fact that the plaintiff has a cause of action in court at

all. More specifically, the cases demonstrate that where

Congress goes to the trouble of expressly establishing a

private cause of action to enforce a statute’s directives - at

least where, as here, that cause of action entails some of form

of individualized judicial review - the rules, restrictions, and

remedies that attend that cause of action govern, and may

not be circumvented through resort to §1983’s generic terms.

A cause of action for judicial review, that is, might not be a

necessary condition to a finding of comprehensiveness, but it

is, this Court's cases show, a sufficient condition.

1. The plaintiffs in Sea Clammers sued under §1983 for

monetary damages stemming from violations of two federal

environmental statutes. In finding those statutes’ remedial

schemes sufficiently comprehensive to preclude resort to

8

§1983, this Court (as it has since described its decision)

“emphasized that several provisions of the Act[s] authorized

private persons to initiate enforcement actions.” Blessing v.

Freestone, 520 U.S. 329, 347 (1997) (citing Sea Clammers, 453

U.S. at 14, 20). More particularly, the statutes “allow[ed]

suits” in federal court “by private citizens.” Sea Clammers,

453 U.S. at 6. By invoking §1983, the plaintiffs there sought

to circumvent two limitations on the prescribed causes of

action: (i) a requiremert that “citizen plaintiffs must first

give notice” of their suits to both EPA and the alleged

environmental violator 60 days before filing; and (ii) the

statutes’ authorization of prospective injunctive, but not

monetary, relief. Id. at 7. Notably, those limitations are

similar to the ones 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

found 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 - which, again, expressly authorized

individual “citizen suits” in federal court - were

comprehensive despite the restrictions on recovery. Indeed,

the whole point in Sea Clammers was to preserve the

underlying statutes’ express causes of action, limitations and

all: “[T]he requirements of th{ose] enforcement

procedure[s],” this Court held, “may not be bypassed by

bringing suit directly under §1983.” Id. at 20 (internal

quotation marks omitted).

2. Smith v. Robinson, 468 U.S. 992 (1984), is to the same

effect. The plaintiffs there had sued to enforce their rights

under the Education of the Handicapped Act and the

Fourteenth Amendment. The EHA, this Court has since

summarized, expressly provided for “local administrative

procedures followed by federal judicial review.” Blessing,

520 U.S. at 347 (citing Smith, 468 U.S. at 1009). But because,

like §332(c)(7) here, the EHA gave “no indication that

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

9

requirements,” 468 U.S. at 1006, the plaintiffs in Smith (like

the respondent here) sought fees under §1983’s fee-shifting

provision, §1988. This Court rejected that move. Despite the

absence 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. Id. at 1012. Notably for present purposes, this Court

in Smith observed (echoing the First Circuit’s decision,

which it affirmed) that Sea Clammers stands for 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.” Id. at 1003.

3. Neither Wright v. City of Roanoke Redevelopment and

Housing Authority, 479 U.S. 418 (1987), 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 here.

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 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, the Court in Wright

distinguished Sea Clammers and Smith for the very reason

that the statutes 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 itself provided for

private actions”); id. (Smith concerned remedial scheme

“which itself allowed private parties to seek remedies for

violating federal law”). So, too, in Wilder, the Court

contrasted Sea Clammers and Smith and emphasized that the

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

private judicial or administrative enforcement.” 496 US. at

10

521. And in Blessing, the Court likewise stressed that

“[{uJnlike 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, therefore, were 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 & Beermann, supra at 1, at

754 (emphasis added). Here, the Ninth Circuit itself

acknowledged that §332(c)(7) provides for a private cause of

action “by allowing aggrieved plaintiffs the right to bring an

action in any court of competent jurisdiction ....” Pet. App.

6a. Under this Court's decisions, that fact alone is sufficient

to preclude suit under §1983; 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.

4. To summarize, this Court's cases - from Sea Clammers

to Blessing (and beyond) - have dealt with a range of

remedial schemes that can be plotted fairly neatly along a

continuum. See Fig. 1, infra. At one end are Wright, Wilder,

and Blessing, in which the pertinent statutes depended

entirely on agency enforcement and made essentially no

provision for private enforcement, “either administrative or

judicial.” Blessing, 520 U.S. at 348. Such statutes, this Court

has he'd, do not entail remedial schemes sufficiently

comprehensive to preempt §1983’s generic cause of action.

In the middle, so to speak, is Gonzaga University v. Doe, 536

U.S. 273 (2002); the statute there offered persons aggrieved

the right to file “individual written complaints” - but in an

administrative, rather than judicial, forum. Id. at 289. This

Court left open (and may comfortably bypass again today)

the question whether that sort of individualized

administrative review apparatus is comprehensive in the Sea

11

Clammers sense. See id. at 290 n.8.2 Sea Clammers and Smith -

and, as should become clear, this case - occupy the opposite

pole. Like §332(c)(7), the statutes at issue in those cases

expressly provided for judicial consideration of individual

claims, either as an initial matter or on appellate-like review.

And in both cases, the Court found the remedial schemes

sufficiently comprehensive to preclude resort to §1983.

Figure 1

Exec. Enforcement

Only (Wright, Wilder,

Indiv. Enforcement -

Administrative Tribunal

Blessing) (Gonzaga) Clammers, Smith)

| | |

Not “Comprehensive” Open Question Whether “Comprehensive”

“Comprehensive”

Thus, for present purposes, this Court’s. decisions

establish a bright-line rule:) Where Congress expressly

establishes 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 circumvented through

resort to §1983’s general terms. Put simply, a plaintiff whom

Congress has expressly authorized to sue in court on a

statutory violation takes his cause of action as he finds it. There

is no point in getting bogged down in a debate about what

forms of relief (damages, fees, etc.) the cause of action does

or does not provide. The express cause of action itself - at

least, where, as here, it authorizes individual suits in federal

court - precludes reliance on §1983.3

2 The United States has argued that it is. See Br. for the United States at

23-27, Gonzaga Univ. v. Doe, 536 U.S. 273 (No. 01-679). Amici concur in

that view; but, again, the Court needn't address that situation here.

3 Whether or not a mechanism for judicial review in state court (alone)

would be sufficiently comprehensive to preempt §1983 is perhaps an open

question. See Wright, 479 U.S. at 440-41 (O’Connor, J., dissenting) (clear

avenue to state court would be sufficient). The Court need not address

12

Because it expressly “provides a mechanism for judicial

relief,” H.R. Conf. Rep. No. 104-458, at 208 (Jan. 31, 1996),

§332(c)(7) fits squarely within the Sea Clammers-Smith

category of statutes that preempt §1983. The Ninth Circuit

acknowledged that §332(c)(7) provides aggrieved plaintiffs a

private cause of action by allowing them to sue “in any court

of competent jurisdiction” (Pet. App. 6a), but went on to

permit resort to §1983 anyway. In so doing, the Ninth

Circuit sanctioned the very sort of end run that this Court's

decisions prohibit.

B. The Clear Rule Established By The Sea Clammers

Line Of Cases Is Consistent With This Court’s

Decisions In Related Contexts.

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 and

remedies, 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.

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” of the United States

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

proper proceeding for redress.” This Court has 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, 28 U.S.C. §2254. See, e.g., Preiser v. Rodriguez,

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

that question today, as §332(c)(7) expressly provides for judicial review in

federal court at a plaintiff's option.

13

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

540 U.S. 749 (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 ....” Id. 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 to the point,

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 particular statute he seeks to enforce?

The Ninth Circuit’s answer to that question - seemingly,

that unless the underlying statute provides not only an

avenue into federal court but also the full panoply of

remedial options, it cannot be sufficiently comprehensive to

preclude resort to §1983 - cannot be squared with this

Court’s approach to §1983 in the Preiser-Heck line of cases.

The issue 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

14

cases has been whether an inmate may circumvent a specific

limitation on the habeas statute’s express cause of action -

tvpically, the requirement that he exhaust state remedies -

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]t 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 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-Heck cases. See Jacques &

Beermann, 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 plaintiff's right to invoke §1983.” Id. at 7a. But

that is like saying that because the federal habeas statute

imposes an exhaustion requirement, see 28 U.S.C. §2254(b),

or does not authorize damage awards, see Preiser, 411 US. at

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

15

neither limitation. This Court has squarely 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.

C. The Ninth Circuit’s “More Is Better” Approach To

Comprehensiveness Is Unworkable And Risks

Rendering Sea Clammers A Dead Letter.

Setting aside its inconsistency with this Court's

precedent, the Ninth Circuit's “more is better” approach to

comprehensiveness is unworkable and, indeed, has the

potential to swallow the Sea Clammers rule entirely.

1. The Ninth Circuit’s decision concerning §332(c)(7)’s

comprehensiveness rests on its belief that the statute

imposes too many limitations, and confers too few benefits,

on telecommunications plaintiffs. While acknowledging

that §332(c)(7) provides for a private cause of action in court

(Pet. App. 6a), the Ninth Circuit's opinion repeatedly says,

for instance, that §332(c)(7) “does not explicitly provide for

any types of remedies such as damages, injunctions,

attorney’s fees, or costs” (id. at 5a), “grants no remedies

beyond procedural rights” (id. at 6a), “does not provide for

any type of relief” (id. at 7a), and “contains no remedies at

all” (id.). Now, as we explain below, the Ninth Circuit's

assumption that §332(c)(7) permits no remedy whatsoever -

not even simple injunctive relief - is unwarranted; the courts

of appeals have held (uniformly) that injunctive relief, in the

form of an order directing local zoning authorities to permit

construction, is available under §332(c)(7). See infra at 17.

But the point remains: In the Ninth Circuit’s view, §332(c)(7)

just doesn’t provide sufficient benefits to plaintiffs to be

comprehensive in the Sea Clammers sense.

But when, under that “standard,” does a remedial

scheme become comprehensive? What if §332(c)(7)

authorized monetary damage awards, but not attorney’s

fees? Fees, but not damages? Damages and fees, but not

costs? When, on the Ninth Circuit's view, is enough,

enough? And mightn’t the answer to that question vary

16

from case to case, statute to statute? The same problem

infects the Ninth Circuit's emphasis on §332(c)(7)'s 30-day

statute of limitations, which, it says, “imposes a burden on

an aggrieved plaintiff, not a benefit.” Pet. App. 8a. What if

the limitations period were 90 days? Or 180? Or a year?

Again, at what point is long enough, long enough? "The

Ninth Circuit's approach to comprehensiveness offers no

principled basis for distinguishing one statutory cause of

action (with its particular package of rules and remedies)

from the next. It would leave the lower courts to decide Sea

Clammers issues on an ad hoc, case-by-case basis, and would

plunge the law into a state of disarray.

By contrast, the rule suggested by the Sea Clammers line

of cases offers courts clear guidance: Wherever Congress

establishes in a substantive statute an express cause of action

for judicial review, that cause of action - with its attendant

rules and remedies - controls, and may not be circumvented

through resort to §1983. Again, there is no need to quibble

over the plaintiff-friendliness of the prescribed procedures

and available forms of relief. The plaintiff takes his cause of

action as he finds it - and as Congress crafted it.

2. The Ninth Circuit's “more is better” approach suffers

from an additional problem. Taken to its logical extreme,

the Ninth Circuit's view seems to be that any restriction on a

plaintiff's ability to recover under a substantive statute's

express cause of action - whether a short limitations period,

the absence of a damages remedy or fees, or some other - is

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 an underlying 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) available under

§1983 - that is, only when resort to §1983 would be wholly

unnecessary and superfluous.

17

But as one Justice observed during oral argument in

Gonzaga, for a remedial scheme to be comprehensive in the

Sea Clammers sense, and thus to preempt §1983, it “certainly

... doesn’t have to be a duplicate of section 1983, or there

would be no point in saying it supplants it.” Tr. of Oral Arg.

34. Rather, 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 underlying 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 risks extinguishing the Sea

Clammers rule altogether.

D. Reliance On §1983 Is Unnecessary To The

Vindication Of §332(c)(7)’s Purposes, Will Give

Plaintiffs’ Lawyers A Windfall, And Will Frustrate

The Efficient Deployment Of New Technology.

Resort to §1983 in this case is not just inconsistent with

Sea Clammers, but is also unnecessary to the achievement of

§332(c)(7)'s objectives. In case after case, wireless operators

have sued to enforce §332(c)(7)’s substantive provisions -

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. 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 & Beermann, 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;

18

Ommnipoint, 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(c)(7) claim in the district

court, which entered a “judgment of injunction” expressly

“enjoin[ing], mandat[ing] and compellling]” the City to “set

aside its earlier resolution denying plaintiff's 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 expedited

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

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

plain enough: attorney's fees. Pursuant to the so-called

“American rule,” 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 three reasons, paying plaintiffs’

lawyers’ bills seems to us a hollow (if not perverse) reason

for disregarding the specific cause of action that Congress

established in §332(c)(7) in favor of §1983’s more permissive

scheme.

1. First, a word about §332(c)(7) plaintiffs. The point of

§1988 was to protect the proverbial little guys. As the Senate

report accompanying §1988 observes, “[iJn many cases

arising under our civil rights laws, the citizen who must sue

to enforce the law has little or no money with which to hire a

lawyer.” S. Rep. No. 94-1011, at 2, reprinted in 1976

US.CCA.N. 5908, 5910 (June 29, 1976). Congress was

concerned that “[i]f the cost of private enforcement actions

bec[ame] too great, there would] be no private

enforcement” and “our civil rights laws” would “become

mere hollow pronouncements.” Id. at 6, 1976 U.S.C.C.A.N.

at 5913. But there is little danger that without the prospect

of fees §332(c)(7) would become a “hollow

pronouncement[].”. The telecommunications conglomerates

that are typically the plaintiffs in §332(c)(7) cases hardly fit

19

the mold of the little-guy civil-rights victims Congress had

in mind when it enacted §1988. See PrimeCo Personal

Communications Ltd. P’ship v. City of Mequon, 352 F.3d 1147,

1152 (7th Cir. 2003) (Posner, J.) (whereas §1988 was “enacted

in recognition that civil rights suits normally pit individuals,

often socially marginal, unpopular, and impecunious,

against well-funded public officers in cases whose social and

political significance may dwarf the monetary stakes,”

“telecommunications enterprises” “have the wherewithal to

finance their own litigation without the boost 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 reh’g en banc, 260 F.3d 1320, appeal dismissed, 264

F.3d 1314 (2001) (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”). Cf Dennis v. Higgins, 498 U.S. 439, 464

(1991) (Kennedy, J., dissenting) (§1988 fee awards should not

“merely shift[] the balance of power away from the States

and toward interstate businesses”).

2. Second, a word about §332(c)(7) defendants. By

definition, claims under §332(c)(7) will be against state and

local government bodies. More often than not, the

defendants will be cash-strapped municipalities doing their

level best to discharge their zoning and _ land-use

responsibilities consistently with §332(c)(7)’s dictates. We

will leave it to the local government amici to explain in

detail the deleterious effects that large attorney's fees

awards have had - and would continue to have were the

Ninth Circuit affirmed here - on municipal governments.

See, e.g., Br. of the National League of Cities, et al., at 11

(certiorari stage) (Localities “face a serious, and potentially

disastrous, financial burden if they are required to pay

damages and attorneys’ fees for inadvertent violations of a

specialized federal statute.”). For present purposes, it

20

suffices to state the obvious: that fee awards “may penalize

cities and towns that, in good faith, attempted to limit cell

towers in ways that ultimately are determined to violate”

§332(c)(7), and that even “[t]he potential for substantial

awards of attorney's fees may illegitimately deter state and,

especially, small local governmental units from exercising

their rightful zoning authority.” Jacques & Beermann, supra

at 1, at 770. The sheer in terrorem effect of oppressive fee

awards (and, for that matter, damage awards) may well be

enough to convince small municipalities to get out of the

tower-siting business altogether - precisely what Congress

did not want when it set out in §332(c)(7) to “[p]reserve ...

local zoning authority.”

3. Finally, a word about systemic impact. 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 US. 598, 609 (2001);

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

734, 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 siting disputes be resolved “expedit[iously].” See also

H.R. Conf. Rep. 104-458, at 1 (“designed to accelerate rapidly

private sector deployment”); id. at 113 (“accelerate rapidly”);

H.R. Rep. No. 104-204(I), at 47, reprinted in 1996 U.S.C.C.A.N.

10, 11 July 24, 1995) (“rapid deployment”); id. at 94, 1996

US.CC.A.N. at 61 (“speed deployment”). 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.

21

Il. Section 332(c)(7) Does Not Create Private “Rights”

Enforceable Under §1983.

Should this Court address (which, in view of the

foregoing, it needn't) what Sea Clammers calls the “second

question” whether 47 U.S.C. §332(c)(7) creates any private

“rights” enforceable under §1983, it should answer that it

does not.4

Not every violation of a federal statute works a

deprivation of “rights” within the meaning of §1983. “In

order to seek redress through §1983 ... a plaintiff must assert

the violation of a federal right, not merely a violation of

federal law.” Blessing, 520 U.S. at 340. With respect to the

“rights” issue, the pathmarking decision is Gonzaga

University v. Doe, 536 U.S. 273. There, this Court firmly

rejected any supposition that there is a “loose standard for

finding rights enforceable by §1983,” or that a plaintiff may

“enforce a statute under §1983 so long as [he] falls within the

general zone of interest that the statute is intended to

protect” or is in some sense “benefit[ed]” by it. Id. at 282-83.

On the contrary, the Court held, nothing “short of an

unambiguously conferred right” will suffice to “support a

cause of action brought under §1983.” Id. at 283. In

‘ The certiorari-stage briefing - including our own - focused on the

comprehensiveness of §332(c)(7)’s remedial scheme for Sea Clammers

purposes. But the Question Presented - whether §332(c)(7) “may be

enforced” via §1983 - “fairly include[s]” the “subsidiary” (and in some

senses logically antecedent) question whether §332(c)(7) creates privately

enforceable rights at all. Sup. Ct. R. 14.1(a). Moreover, as the United

States has correctly observed elsewhere, the “rights” and “remedies”

inquiries cannot be “wholly divorced” from one another. See Br. for the

United States at 23, Gonzaga, 536 U.S. 273. By contrast, “the less clear the

evidence that Congress intended to create private rights, the more

carefully the court should scrutinize the impact of a Section 1983 action on

the enforcement mechanisms that Congress expressly provided.” Id. As

we show in text, the evidence that Congress intended to create §1983-

enforceable rights in §332(c)(7) is particularly weak. Whether that

weakness is deemed relevant specifically with respect to the “rights”

question itself, or derivatively to the “remedies” question, the point is that

it is relevant to the resolution of this case.

22

embracing that rigorous standard, the Court looked to its

implied-private-right-of-action decisions - with their

singular focus on clear congressional intent, see, e g

Alexander v. Sandoval, 532 U.S. 275 (2001) - to “guide the

determination of whether a statute confers rights enforceable

under §1983.” 536 U.S. at 283. Indeed, the Court clarified

that “the initial inquiry - determining whether a statute

confers any right at all - is no different” in the §1983 and

implied-right-of-action contexts. Id. at 285.

Against that backdrop, the Court in Gonzaga held that

where a statute’s “text and structure” give no indication that

Congress intended to create new private rights, “there is no

basis for a private suit, whether under §1983 or under an

implied right of action.” Id. at 286. Borrowing from the

implied-right-of-action cases, the Court emphasized that a

statute creating enforceable private rights “must be ‘phrased

in terms of the persons benefited.’” Id. at 284 (quoting

Cannon v. University of Chicago, 441 U.S. 677, 692 n.13 (1979)).

In assessing the statute before it - and finding it wanting -

the Court observed that the relevant provisions “entirely

lack[ed] the sort of ‘rights-creating’ language critical to

showing the requisite congressional intent to create new

rights.” Jd. at 287 (citing Sandoval, 532 U.S. at 288-89, and

Cannon, 441 US. at 690 n13). Specifically, the Court

contrasted the statute before it, which was phrased as a

prohibition on government regulators (“No funds shall be

made available ....”), with “the individually focused

terminology of Titles VI and IX,” both of which state that

[nJo person ... shall ... be subjected to discrimination.” [d.

at 284 n.3, 287. In sum, the Court said, “‘[s]tatutes that focus

on the person regulated rather than the individuals

protected create “no implication of an intent to confer rights

rs ; apoyo class of persons.”’” Id. at 287 (quoting

andoval, S. at 289 (quoti forni

6 a eaneen (quoting California v. Sierra Club, 451

Gonzaga compels the conclusion that §332

create §1983-enforceable rights. To certaae fo deo

broader perspective, it is settled that the Communications

23

Act of 1934 “did not create new private rights” and that, by

contrast, “(t]he purpose of th[at] Act was to protect the

public interest in communications.” Scripps-Howard Radio v.

FCC, 316 USS. 4, 14 (1942). Nor is there any indication that

the Telecommunications Act of 1996 - which, among other

things, added §332(c)(7) to the Communications Act -

created private, as opposed to public, rights. The 1996 Act's

preface describes the statute as an effort to “secure lower

prices and higher quality services” for all “American

telecommunications consumers.” Pub. L. No. 104-104, 110

Stat. 56, 56 (1996). The House and conference reports

accompanying the 1996 Act likewise focus not on private

interests, but on the collective rights of “all Americans.”

H.R. Conf. Rep. No. 104-458, at 1; see also id. at 113 (“all

Americans”); H.R. Rep. No. 104-204(I), at 47-48, 1996

US.C.C.AN. at 11 (“American telecommunications

consumers,” “ American businesses”).

The question here, of course, is whether the “specific

statutory provision” at issue, 47 U.S.C. §332(c)(7), which was

written into the Communications Act as part of the 1996 Act,

provides any basis for a contrary conclusion. See Blessing,

520 US. at 342 (“particular provision”). Measured against

Gonzaga’ s rigorous standard, it is clear that it does not.

A. Section 332(c)(7) Contains No “Rights-Creating”

Language.

There is certainly no basis in §332(c)(7)’s text for finding

a congressional intent to create private rights enforceable via

§1983. All of the relevant provisions of §332(c)(7) are

addressed to the entities being regulated (here, state and

local zoning authorities) rather than to those seeking

protection (here, wireless operators). Subsection (A) opens

with a general reaffirmation of local zoning 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 facilities.” Subsection (B) then

24

imposes several “[llimitations” on local zoning authority.

For instance -

e A “State or local government or instrumentality

thereof ... shall not” through regulation either (i)

“unreasonably discriminate among providers of

functionally equivalent services” or (ii) “prohibit or

have the effect of prohibiting the provision of

wireless services.” §332(c)(7)(B)(i).

¢ A “State or local government or instrumentality

thereof shall” act on siting and construction requests

“within a reasonable period of time ... taking into

account the nature and scope of such request{[s].”

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

e Any decision of a “State or local government or

instrumentality thereof” to deny a siting or

construction permit “shall be in writing and

supported by substantial evidence contained in a

written record.” §332(c)(7)(B)(iii).

Significantly for present purposes, all of §332(c)(7)’s

substantive provisions “focus on the person regulated rather

than the individuals protected.” Gonzaga, 536 U.S. at 287.

They are framed as directives to local zoning officials -

prohibitions in some cases, commands in others - not as

guarantees to individuals. Accordingly, and in stark

contrast to statutes like Titles VI and IX, §332(c)(7)’s

substantive provisions “entirely lack the sort of ‘rights-

creating’ language critical to showing the requisite

congressional intent to create new rights.” Id.; see also id. at

291 (Breyer, J., concurring in the judgment) (emphasizing

“total absence (in the relevant statutory provision) of any

reference to individual ‘rights’ or the like”). Indeed, the

absence in §332(c)(7) of any rights-creating language is, if

anything, more damning than the similar void in Gonzaga.

Unlike the statute there, which had been enacted in 1974

during the so-called “ancien regime,” Sandoval, 532 US. at

287, when courts took a relatively loose approach to

inferring private statutory rights, §332(c)(7) was enacted in

25

1996, by which time this Court was consistently requiring (at

least in its implied-right-of-action decisions) a clear showing

of congressional intent to create enforceable rights, see, e.g.,

Thompson v. Thompson, 484 U.S. 174, 179-80 (1988).

This, moreover, is not a case in which §1983-enforceable

rights can be discerned through reference to “‘the entire

legislative enactment.” Gonzaga, 536 U.S. at 296 (Stevens, J.,

dissenting) (quoting Suter v. Artist M., 503 U.S. 347, 357

(1992)). In Gonzaga, Justice Stevens pointed to the use of the

term “rights” in the title of the pertinent statute (the “Family

Educational Rights and Privacy Act”) and to the “substantial

number of references to ‘rights’” in the statutory sections

surrounding the provision specifically at issue. Id. at 293-94,

296. Here, statutory structure provides no such aid. The

word “right” does not appear anywhere in §332, let alone in

§332(c)(7) or (c)(8), the two subsections added by the 1996

Act. See Pub. L. No. 104-104, §§704(a), 705, 110 Stat. 56, 151-

52 (1996). Nor does any of the section headings suggest a

focus on private rights: §332 itself is titled “Mobile

services”; subsection (c), “Regulatory treatment of mobile

services”; and sub-subsection (c)(7), “Preservation of local

zoning authority.”

B. Section 332(c)(7)’s Provisions Are Too Vague To

Create §1983-Enforceable Rights.

The absence of rights-creating language aside, there is

another, separate reason that §332(c)(7) should not be read to

create private rights for §1983 purposes. Its substantive

provisions, by and large, are simply too “‘vague and

amorphous” give rise to enforceable rights. Blessing, 520

U.S. at 340 (quoting Wright, 479 U.S. at 431-32); see also

Gonzaga, 536 US. at 292 (Breyer, J., concurring in the

judgment) (“Much of the statute’s key language is broad and

nonspecific.”). For instance, §332(c)(7)(B)(i) prohibits local

zoning authorities from “unreasonably discriminat{ing]”

between providers and from regulating in such a way as to

“have the effect of prohibiting” wireless service. But what

constitutes “unreasonabl[e] discriminat[ion]”? And when

26

does local regulation “have the effect of prohibiting”

wireless service? Likewise, §332(c)(7)(B)(ii) requires local

zoning authorities to act on construction requests within “a

reasonable period of time,” “taking into account the nature

and scope of the request[s].”. But what might that

“reasonable period” be in any given case?

Those questions are not answered either in the statute

itself or in any relevant regulation. This case, therefore, is

different from both Wright and Wilder, in which the Court

found enforceable private rights in statutory provisions that

centered on the vague term “reasonable.” In those cases,

either the statutes themselves or their implementing

regulations (or both) “specifically set out guidelines” or

“factors” for courts to consider in measuring reasonableness.

Wright, 479 U.S. at 431; Wilder, 496 U.S. at 519 & n.17. Here,

by contrast, neither §332(c)(7) itself nor an applicable

regulation gives any hint as to the meaning, for instance, of

the terms “unreasonabl{e] discriminat[ion],” “effect[ive]

prohibit[ion],” or “reasonable period.” This case,

accordingly, is like Suter v. Artist M., 503 U.S. 347, in which

this Court held that a federal welfare statute's requirement

that States make “reasonable efforts” to prevent the removal

of foster children from their homes was too vague to create

§1983-enforceable rights. Here, as there, “[nJo further

statutory guidance is found as to how” amorphous statutory

standards “are to be measured.” Jd. at 360.

Nor does the legislative history offer any meaningful

clarification of §332(c)(7)’s vague terms. In fact, with respect

to several of those terms, the legislative history only

compounds the uncertainty. For instance, with respect to

“unreasonabl[e] discriminat[ion],” the conference report

merely States that §332(c)(7)(B)(i) gives “localities the

flexibility to treat facilities that create different visual,

aesthetic, or safety concerns differently to the extent

permitted under generally applicable zoning requirements.”

H.R Conf. Rep. 104-458, at 208. As to “effect[ive]

prohibit[ion],” the report simply expresses the conferees’

intent that “decisions be made on a case-by-case basis.” Id.

27

And on the meaning of the phrase “reasonable period of

time,” the report offers only that it is the “usual period

under [local zoning] circumstances” for a hearing, variance,

etc., and that requests need not be subjected “to any but the

generally applicable time frames for zoning decision{s].” [d.

C. Principles Of Federalism Counsel Against Finding

§1983-Enforceable Rights In §332(c)(7).

In refusing to find enforceable private rights in Gonzaga,

this Court declined to indulge any “judicial assumption,

with no basis in statutory text, that Congress intended to set

itself resolutely against a tradition of deference to state and

local school officials.” 536 U.S. at 286 n.5. So, too, here,

recognition of federally-enforceable private rights in

§332(c)(7) would undermine a long “tradition of deference”

to local zoning and land-use decisions. This Court has

repeatedly held that “zoning laws and their provisions ... are

peculiarly within the province of state and local legislative

authorities,” Warth v. Seldin, 422 U.S. 490, 508 n. 18 (1975),

and, indeed, that “regulation of land use is perhaps the

quintessential state activity,” FERC v. Mississippi, 456 US.

742, 768 n. 30 (1982). Additionally, this Court has

recognized that because “[t]he zoning function is

traditionally a governmental task requiring the ‘balancing

[of] numerous competing considerations,” courts “should

properly ‘refrain from reviewing the merits of [such]

decisions, absent a showing of arbitrariness or

irrationality.” Larkin v. Grendel's Den, Inc., 459 U.S. 116, 121

(1982) (quoting Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 265 (1977)).

The affront to federalism would be, if anything, more

pronounced here than in Gonzaga. Not only is there “no

basis in statutory text,” 536 U.S. at 286 n.5, to believe that

Congress intended to upset the deference traditionally owed

to state and local land-use decisions, the relevant evidence

shows that Congress actually intended, as §332(c)(7)'s title

plainly states, to “[p]reserv[e] ... local zoning authority.”

Section 332(c)(7)(A), for starters, establishes the general rule

28

that §332 does not “limit or affect” local zoning and land-use

authority. And, indeed, the legislative history demonstrates

that even §332(c)(7)(B)’s several “[llimitations,” far from

displacing traditional local zoning standards, actually

incorporate those standards. For instance, §332(c)(7)(B)(i)’s

ban on “unreasonabl[e] discriminat[ion]” was specifically

designed to “provide localities with the flexibility to treat

facilities that create different visual, aesthetic, or safety

concerns differently to the extent permitted under generally

applicable zoning requirements.” H.R. Conf. Rep. No. 104-458

at 208 (emphasis added). Likewise, in requiring local zoning

boards to act on construction requests “within a reasonable

period of time,” §332(c)(7)(B)(ii), Congress intended merely

to subject those requests to “the generally applicable time

frames for zoning decision[s]” and, thus, to require decisions

within the “usual period under [local zoning]

circumstances.” Id. Accordingly, a decision finding §1983-

enforceable rights in §332(c)(7) would federalize large

swaths of local zoning practice without any indication in the

statute that Congress intended such an incursion - and

indeed, in the face of an apparent contrary intention. |

D. Section 332(c)(7)’s Limited Judicial Remedy Does

Not Indicate The Existence Of §1983-Enforceable

Private Rights.

Section 332(c)(7)(B)(v) - discussed in detail above, see

supra at 5-20 - provides to “any person adversely affected”

by a local zoning board’s decision a limited cause of action

in any court of competent jurisdiction.” That subsection

does not, as some have casually suggested, “compel[] the

conclusion that the [Telecommunications Act] was intended

to grant providers at least some enforceable rights.” Jacques

& Beermann, supra at 1, at 753. Rather, subsection (v) merely

gives sggrieved individuals standing to go into court to

vind: sate the public rights that the Act protects. In Scripps-

Howard Radio v. FCC, 316 US. 4, this Court addressed a

statute that, like §332(c)(7)(B)(v), granted judicial review to

persons whose interests were “adversely affected.”

29

Observing that the Communications Act “did not create new

private rights” but instead sought “to protect the public

interest in communications,” the Court emphasized that

Communications-Act plaintiffs do not sue to vindicate their

own private rights but, rather, “have standing only as

representatives of the public interest.” Id. at 14.

Subsequently, in Sierra Club v. Morton, 405 U.S. 727 (1972),

this Court clarified that Scripps-Howard’s “standing”

reference was addressed not to the Article III inquiry but,

instead, to the character of the rights protected by the

Communications Act. See id. at 737. Accordingly, “once

review is properly invoked” by a Communications-Act

plaintiff with Article III standing, “that person may argue

the public interest in support of his claim that the agency has

failed to comply with its statutory mandate.” Id.

The same is true here. There can be no doubt that a

disappointed wireless operator has standing in the Article III

sense to challenge a local zoning authority’s permit denial.

Under the logic of Scripps-Howard and Sierra Club,

§332(c)(7)(B)(v) allows him to go into court to vindicate the

publicly-oriented rights that §332(c)(7) protects. The

important point for present purposes is that the applicant's

standing to sue to enforce §332(c)(7)’s substantive provisions

does not alter the nature - i.e., public, not private - of the

rights that those provisions protect. Put simply, having

standing (and a cause of action) under §332(c)(7) is not the

same as having personal, §1983-enforceable private rights

under §332(c)(7). Cf. Office of Communication of the United

Church of Christ v. FCC, 359 F.2d 994, 1001 (D.C. Cir. 1966)

(Burger, J.) (Under the Communications Act, “standing is

accorded to persons not for protection of their private

interest but only to vindicate the public interest.”).°

5 Further indication that §332(c)(7)(B)(v) envisions APA-like actions to

enforce public rights is found in §332(c)(7)(B)(iii), which requires that the

decisions of local zoning boards be “in writing and supported by

substantial evidence contained in a written record.” As the conference

30

Indeed, far from indicating the presence in §332(c)(7) of

privately enforceable rights, §332(c)(7)(B)(v)’s limited cause

of action actually confirms their absence. In Gonzaga, this

Court made clear that the existence of a private remedy -

even if not comprehensive in the Sea Clammers sense - can

“buttress[}” a conclusion that a statute does not create §1983-

enforceable rights. 536 U.S. at 289. The statute there at issue

created within an administrative agency a review board

with which aggrieved persons could file “individual written

complaints.” Id. If, based on the complaint, the board found

a violation, it could require that the offending educational

institution take “specific steps ... to comply” with the

statutory mandate. Jd. Without suggesting any view of

whether that enforcement scheme was comprehensive for

Sea Clammers purposes, this Court emphasized that it was

sufficiently different from those at issue in Wright and

Wilder, “where an aggrieved individual lacked any federal

review mechanism,” to counsel against “finding a

congressional intent to create individually enforceable

private rights” under §1983. Id. at 290.

The same inference - that §332(c)(7) does not create

§1983-enforceable private rights - follows a fortiori here.

Section 332(c)(7) goes beyond the federal administrative

review mechanism available in Gonzaga to establish a

specific and self-contained federal judicial review mechanism

pursuant to which a person “adversely affected” may

“commence an action” in court. See supra at 7-12. If the

former indicates the absence of §1983-enforceable rights,

then surely the latter - which is, if anything, farther removed

from the Wright-Wilder paradigm - does, as well.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

report observes, “substantial evidence” is the “traditional standard used

for judicial review of agency actions.” H.R. Conf. Rep. No. 104-458, at 208.

November 12, 2004

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

(334) 242-7401