Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

; (2) | Baereme Coun US.

DEC 17 2004

OFFICE OF THE CLERK

No. 03-1601

IN THE

Supreme Court of the United States

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

Petitioners,

MARK J. ABRAMS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF PUBLIC CITIZEN, INC., AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

Scott L. NELSON

Counsel of Record

ADINA H. ROSENBAUM

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-7724

Attorneys for Amicus Curiae

December 17, 2004

[BEST AVAILABLE COPY |

QUESTION PRESENTED

Whether the availability of a right of action under a

federal statute is, by itself, sufficient to demonstrate

congressional intent to foreclose reliance on 42 U.S.C.

§ 1983 as a remedy for violations of the statute.

ii

TABLE OF CONTENTS

ee OnE resteunvecnvnsesesesnsececnscssevssersseseescseenees i

ee Fe I ceeeccerermanensesssessecessavecemsevesccesceee ill

INTEREST OF AMICUS CURIAE..............cccscssssseseeesssseeeees 1

SUBEREAILS OF ARGUBEENT ...cccccccccscccccsccssesscosssccccssscsscees 2

TE ieteitieninccnictenmnmmnnemmmnscensesevmemasenmeencenneneen 4

I. SECTION 332(c\7B) DOES NOT CONTAIN

THE SORT OF ENFORCEMENT SCHEME

THIS COURT HAS FOUND SUFFICIENTLY

COMPREHENSIVE TO PRECLUDE RELI-

EE 4

Il. ASTATUTORY RIGHT OF ACTION, ON ITS

OWN, DOES NOT PRECLUDE RELIANCE

Se Se encnecticnninsinpnenitinnseevennniatessusneerevemennennesnaeseseess 8

Ill. AN ENFORCEMENT SCHEME PRECLUDES

RELIANCE ON § 1983 ONLY IF IT IS IN-

COMPATIBLE WITH THE § 1983 REMEDY............. 11

EIEN D tcrecnses. sitnintscensenmmenemnssncemnmeemaseseenesseaesecees 16

ili

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Sandoval, 532 U.S. 275 (2001).......ccccccseseeeeees 11

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

EE Se Sd I vciricinemniinnsiemmancnnasinenmtnemeneninese 14

Blessing v. Freestone, 520 U.S. 329 (1997)......... 4,10, 11, 12

Buckhannon Board and Care Home, Inc. v.

West Virginia Department of Health and

Human Resources, 532 U.S. 598 (2001) .......cccccccseeseeeeees 1

Franklin v. Gwinnett County Public Schools,

er anne TITTITT iii sietietteininieshtinceiptildaieeaibibigiaininbecariabenniisiie 7

Gonzaga University v. Doe, 536 U.S. 273

Ee Cn 10, 11

Jones v. R.R. Donnelly & Sons Co., 124 S. Ct.

a ihicscntdseiitiacdsninenenieniniemnenanistieenteinenetnenen 14, 15

og | ee 1

Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, S01 U.S. 350 (1991)......ccsccccscecsecesssssceseseeseee 15

Livadas v. Bradshaw, 512 U.S. 107 (1994) ......ccccccececeeeeeeeees 4

Maine v. Thiboutot, 448 U.S. 1 (1980)........... 2, 11, 12, 13, 14

Middlesex County Sewerage Auth. v. Nat’l Sea

Clammers Ass’n, 453 U.S. 1 (1981) .....ccccceceseeseeeee passim

Scarborough v. Principi, 124 S. Ct. 1856 (2004)... l

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

Wright v. City of Roanoke Redev. & Hous.

pe Ee 2, 4, 7, 10

iv

STATUTES

Be Cle: Oi isccncntscicnicnnciittitnnicinemmnnnndeniasannsia 4, 13, 14, 15

GB UII. Fy Wii ccsennsecccnncenssinericsntcninnisensiininenasmmenenaniciaie 15

GB DBA. © Bi ccnsecsesasecccncsensccessencmnesrninnsneannsenanetien passim

GB UE © iirsrecncccnnsssecnrsnsctsinnicmneniancsnuncimenataia 1, 13, 14

A ee Bg, een passim

re

INTEREST OF AMICUS CURIAE!

Amicus curiae Public Citizen, Inc., is a nonprofit advo-

cacy organization with approximately 160,000 members na-

tionwide. It appears before Congress, administrative agen-

cies, and the courts on a wide range of issues involving the

protection of consumers and workers, public health and

safety, and maintaining openness and integrity in govern-

ment. One of Public Citizen’s particular interests is ensuring

that federal and state governments comply with laws that af-

fect ordinary citizens. The ability of citizens to enforce those

laws, including through the private right of action authorized

in 42 U.S.C. § 1983, is vital to guaranteeing such compli-

ance. The availability of the § 1983 right of action therefore

significantly affects this interest.

Another of Public Citizen’s principal concerns is the

availability and affordability of legal services. Because pre-

vailing parties in actions brought under 42 U.S.C. § 1983 are

able to receive reasonable attorneys’ fees under 42 U.S.C.

§ 1988(b), the availability of the § 1983 right of action sig-

nificantly enhances their ability to obtain and afford legal

representation. Public Citizen’s attorneys have either repre-

sented parties or filed amicus briefs in a number of cases be-

fore this Court on attorneys’ fees, including Scarborough v.

Principi, 124 S. Ct. 1856 (2004), Buckhannon Board and

Care Home, Inc. v. West Virginia Department of Health and

Human Resources, 532 U.S. 598 (2001), and Kay v. Ehrler,

499 U.S. 432 (1991).

Public Citizen’s interest in this case is not specific to is-

sues relating to the Telecommunications Act, and we have no

view on the validity of the underlying Telecommunications

' Letters of consent from both parties to the filing of this brief have

been filed with the Clerk. This brief was not authored, in whole or in part,

by counsel for a party, and no person or entity other than amicus curiae,

its members, or its counsel made a monetary contribution to the prepara-

tion or submission of this brief.

Act claim at issue in this case. But because the remedies pro-

vided for under the provision of the Telecommunications Act

at issue are so limited, the assertion of the petitioners and the

Solicitor General that they are “comprehensive” enough to

render § 1983 unavailable would have potentially far-

reaching consequences and could significantly limit the util-

ity of § 1983 as a tool for remedying violations of federal

law. Accordingly, we file this brief as amicus curiae in sup-

port of the respondent.

SUMMARY OF ARGUMENT

In Maine v. Thiboutot, 448 U.S. 1, 4 (1980), this Court

held that 42 U.S.C. § 1983 “encompasses violations of fed-

eral statutory as well as constitutional law.” When a statute

creates an enforceable right, violations of that statute can be

remedied through the § 1983 right of action, unless the de-

fendant can show, through “express provision or other spe-

cific evidence from the statute itself,” that Congress intended

to withdraw the remedy. Wright v. City of Roanoke Redev. &

Hous. Auth., 479 U.S. 418, 423 (1987). This Court has in-

ferred such an intent when the statute contains a “compre-

hensive” remedial scheme. Middlesex County Sewerage

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).

The question in this case is whether a single clause of the

Telecommunications Act, 47 U.S.C. §332(c)(7)(B){v),

which provides a judicial right of action to enforce one sub-

paragraph of the Act, is so “comprehensive” that it demon-

strates congressional intent to preclude reliance on § 1983

and thus rebuts the presumption in favor of the § 1983 rem-

edy.

The bare-bones right of action created by § 332(c)(7)(B)

hardly qualifies as an enforcement “scheme” at all, let alone

a comprehensive one. The sole means of enforcement in

§ 332(c\(7)(B) is in clause (v), which reads:

Any person adversely affected by any final action or

failure to act by a State or local government or any in-

strumentality thereof that is inconsistent with this sub-

paragraph may, within 30 days after such action or fail-

ure to act, commence an action in any court of compe-

tent jurisdiction. The court shall hear and decide such

action on an expedited basis. Any person adversely af-

fected by an act or failure to act by a State or local gov-

ernment or any instrumentality thereof that is inconsis-

tent with clause (iv) may petition the Commission for

relief.

These three sentences do not constitute an “elaborate en-

forcement” scheme, Sea Clammers, 453 U.S. at 13, such as

those found in the cases in which this Court has inferred con-

gressional intent to preclude reliance on § 1983.

Nor does the remedial scheme in § 332(c)(7)(B) exhibit

an intent by Congress to fully occupy the remedial field.

When Congress has been so vague about the scope of avail-

able remedies and so minimalistic in establishing procedural

requirements, there is no basis for inferring that Congress

created a carefully calibrated remedial scheme or intention-

ally limited other statutory remedies. Put differently, the

question whether § 1983 is supplanted is one of congres-

sional intent, see Smith v. Robinson, 468 U.S. 992, 1012

(1984), and the language of § 332(c)(7)(B)(v) gives no hint

that Congress intended to foreclose access to presumptively

available remedies.

Petitioners’ argument boils down to an assertion that a

private right of action within a statute, on its own, demon-

strates congressional intent to preclude reliance on § 1983. In _

the cases in which this Court has found remedial schemes

comprehensive, however, it has never relied just on the exis-

tence of a statutory private right of action. Instead, the Court

has required that the statute’s remedial scheme and § 1983 be

incompatible. There is nothing incompatible about § 1983

and the statutory right of action here: Section 1983 neither

provides remedies that Congress expressly foreclosed nor

allows plaintiffs to bypass procedural limitations on the statu-

4

tory right of action, since the Telecommunications Act con-

tains none (except for its 30-day limitations period, which,

under 28 U.S.C. § 1658(a), is equally applicable to a § 1983

action). Because § 1983 and the statutory right of action co-

exist so compatibly, § 332(c\(7)(B\(v) does not “raise a clear

inference that Congress intended to foreclose a § 1983 cause

of action for the enforcement of ... rights secured by federal

law.” Wright, 479 U.S. at 425.

ARGUMENT

I. SECTION 332(c)(7)(B) DOES NOT CONTAIN

THE SORT OF ENFORCEMENT SCHEME THIS

COURT HAS FOUND SUFFICIENTLY COM-

PREHENSIVE TO PRECLUDE RELIANCE ON

§ 1983.

Section 1983 is a “generally and presumptively available

remedy for claimed violations of federal law.” Livadas v.

Bradshaw, 512 U.S. 107, 133 (1994). This Court does “‘not

lightly conclude that Congress intended to preclude reliance

on § 1983 as a remedy’ for the deprivation of a federally se-

cured right.” Wright, 479 U.S. at 423-24 (quoting Smith v.

Robinson, 468 U.S. at 1012). Only twice, in Sea Clammers

and Smith v. Robinson, has the Court found a statute’s reme-

dial scheme sufficiently comprehensive to demonstrate con-

gressional intent to foreclose reliance on § 1983.

In Sea Clammers, the Court found comprehensive the

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

13, of the Federal Water Pollution Control Act (FWPCA) and

Marine Protection, Research, and Sanctuaries Act of 1972

(MPRSA). The FWPCA gave the Environmental Protection

Agency Administrator “a panoply of enforcement options,

including noncompliance orders, civil suits, and criminal

penalties.” Blessing v. Freestone, 520 U.S. 329, 347 (1997).

It also allowed interested persons to seek judicial review of

various actions by the Administrator and contained citizen

suit provisions authorizing only actions for injunctive relief

5

(and civil penalties payable to the government) and specify-

ing various procedures that had to be followed in instituting

such suits. Sea Clammers, 453 U.S. at 13-14. The Court

found it “hard to believe that Congress intended to preserve

the § 1983 right of action when it created so many specific

Statutory remedies ....” Jd. at 20 (emphasis added).

In Smith v. Robinson, the Court held that the Education of

the Handicapped Act implicitly foreclosed a plaintiff from

using § 1983 to assert a constitutional claim to a free special

education. Like the statutes at issue in Sea Clammers, the

EHA contained “an elaborate procedural mechanism.” 468

U.S. at 1010. It incorporated significant parental involvement

in educational placement decisions and contained a right to

judicial review for aggrieved parties. In light of the compre-

hensiveness of this “carefully tailored administrative and ju-

dicial mechanism,” id. at 1009, the Court inferred that Con-

gress meant to foreclose a remedy under § 1983 for constitu-

tional claims that paralleled the substantive requirements of

the statute.’ Jd. at 1011.

?Although Smith v. Robinson is often cited as if it concerned whether

§ 1983 could be used to assert statutory rights under the EHA, that issue

was not presented: The plaintiffs in Smith v. Robinson expressly dis-

claimed any effort to “assert[] their [EHA] claim through the ‘and laws’

provision of § 1983.” 468 U.S. at 1005. What the Court actually decided

was that the EHA, rather than § 1983, was the exclusive means for assert-

ing constitutional claims to a free and appropriate public education.

Nonetheless, the Court’s reasoning was broad enough to foreclose the use

of § 1983 to assert a substantive claim to a free and appropriate public

education based on the EHA: “We conclude, therefore, that where the

EHA is available to a handicapped child asserting a right to a free appro-

priate public education, based either on the EHA or on the Equal Protec-

tion Clause of the Fourteenth Amendment, the EHA is the exclusive ave-

nue through which the child and his parents or guardian can pursue their

claim.” Jd. at 1013. At the same time, however, the Court made clear that

its holding did not necessarily foreclose the use of § 1983 to challenge the

adequacy of state and local administrative procedures under the EHA,

because such claims would not involve bypassing the extensive adminis-

(Footnote continued)

6

Section 332(c\(7)(B) does not even come close to con-

taining the sort of enforcement scheme found to be compre-

hensive enough to foreclose resort to § 1983 in Sea Clam-

mers and Smith v. Robinson. In contrast to the FWPCA and

EHA, § 332(c\7)(B) does not contain multiple enforcement

options for both the federal government and private parties; it

does not include detailed procedural mechanisms and guaran-

tees; it does not delineate any administrative processes an

aggrieved party must undergo before seeking judicial review;

and it does not limit the nature of the judicial remedies avail-

able under the statute.

Instead, the subparagraph contains just three sentences on

enforcement: The first sentence creates a right of action. The

second specifies that the court should expedite the action.

The third sentence provides that persons adversely affected

by violations of § 332(c)(7)(B)(iv) may (but need not) also

petition the FCC for relief (although it does not specify what

relief the FCC may provide). Though the subparagraph in-

volves the preservation of (and limits on) local zoning au-

thority, it does not require the aggrieved party to resort to any

particular administrative procedures before local government

bodies prior to bringing an action to redress claimed viola-

tions. And although the section allows an aggrieved party to

go to court, it does not expressly tailor the remedies that can

be received to the harm that has been suffered. Indeed, the

section says nothing at all about what remedies are available.

In short, the enforcement “scheme” of § 332(c)(7)(B) is

sparse, to say the least. The three brief sentences dealing with

enforcement in § 332(c)(7)(B) do not constitute a compre-

hensive enough scheme to imply congressional intent to sup-

p!»nt § 1983.

trative remedies available for substantive violations of the EHA and

would therefore not necessarily be “inconsistent with the EHA’s compre-

hensive scheme” even assuming that they could also be asserted in an

action brought directly under the EHA itself. Jd. at 1014 n.17.

ee ee

This is not to say that Congress always needs to establish

multiple, expansive remedies to demonstrate its intent to

foreclose reliance on § 1983. A remedial scheme need not

contain all the remedies offered by § 1983 to be sufficiently

comprehensive to displace § 1983. In Sea Clammers itself,

for example, the citizen-suit provision only allowed private

persons to sue for injunctive relief, not for other remedies

available under § 1983. What is required to displace § 1983

is evidence that Congress intended for the enforcement

mechanisms it provided in the statute to fully occupy the re-

medial field. See Wright, 479 U.S. at 423 (describing the re-

medial scheme under consideration in Sea Clammers as a

scheme that “left no room for additional private remedies un-

der § 1983”). Thus, the very fact that the citizen-suit provi-

sion of the FWPCA limited the remedies available was evi-

dence that Congress had considered all the various possible

remedies and made a conscious decision to provide only for

the ones that it thought would best suit its purposes. In such a

circumstance, it could be inferred that Congress “provide[d]

precisely the remedies it considered appropriate,” Sea Clam-

mers, 453 U.S. at 15, and did not intend for private parties to

bypass remedial limits by turning to § 1983. Here, however,

there is no evidence that Congress engaged in such consid-

erations and made such decisions.

Petitioners focus extensively on the idea that, in creating

the enforcement scheme in § 332(c)(7)(B)(v), Congress cre-

ated a “specific and calibrated” remedy. Pet. Br. 15. Yet it is

difficult to conclude that Congress created a carefully cali-

brated remedial scheme when the statute itself is completely

silent about remedies. To be sure, the creation of a private

right of action carries with it “all appropriate remedies unless

Congress has expressly indicated otherwise,” Franklin v.

Gwinnett County Public Schools, 503 U.S. 60, 66 (1992), and

therefore private parties can receive remedies through the

private right of action created by Congress in

§ 332(c)(7)(B)(v). The issue, however, is not whether reme-

8

dies would be available for violations of § 332(c)(7)(B) ab-

sent recourse to § 1983; rather, the question is whether Con-

gress created a “carefully tailored scheme,” Smith, 468 U.S.

at 1012, that it intended to supplant all other remedies. The

existence of a general background rule that applies when

Congress has been silent does not demonstrate such intent on

the part of Congress. It requires a great mental leap to assume

that Congress engaged in a careful calibration of right and

remedy, providing for exactly the remedies it wanted and ex-

cluding all others, while remaining absolutely silent on the

topic. It makes much more sense to conclude that, in drafting

§ 332(c)(7)(B), Congress did not mean to define exactly what

remedies it wanted to provide, but rather sought only to en-

sure, as the statute does on its face, that aggrieved persons

can go to court and receive speedy relief of some kind.

Il. A STATUTORY RIGHT OF ACTION, ON ITS

OWN, DOES NOT PRECLUDE RELIANCE ON

§ 1983.

Apparently recognizing that § 332(c)(7)(B) lacks the or-

dinary hallmarks of comprehensiveness, petitioners (and the

Solicitor General) argue that whenever a statute creates a ju-

dicial right of action it should be treated as “comprehensive”

within the meaning of Sea Clammers and Smith v. Robinson.

This Court has never held, however, that a judicial right of

action, by itself, makes a statutory enforcement scheme suffi-

ciently comprehensive to supplant § 1983. In particular, nei-

ther Sea Clammers nor Smith v. Robinson foreclosed resort to

§ 1983 solely because a statute contained a judicial right of

action.

In Sea Clammers, the Court concluded that the enforce-

ment scheme was comprehensive because of the “many spe-

cific statutory remedies, including the two citizen-suit provi-

sions.” Sea Clammers, 453 U.S. at 20 (emphasis added).

Though the existence of the citizen-suit provisions was

clearly important to the Court, it was not just the existence of

those provisions, but the fact that there were “so many” statu-

9

tory remedies, id., that led the Court to conclude that Con-

gress had intended to preclude reliance on § 1983. Nothing in

Sea Clammers suggests that the Court would have found the

bare existence of some right of action in court enough to

erase the presumption that § 1983 is available to enforce

Statutory rights.

Smith v. Robinson made even clearer that the existence of

a private right of action in a statute is not determinative of

whether the statute’s enforcement scheme is comprehensive

(and thus exclusive). There, the Court concluded that Con-

gress could not have intended for children with equal protec-

tion claims to a publicly financed special education to en-

force their claims through § 1983 because “[a]llowing a

plaintiff to circumvent the EHA administrative remedies

would be inconsistent with Congress’ carefully tailored

scheme.” Smith, 468 U.S. at 1012 (emphasis added). The

“comprehensive nature of the procedures and guarantees set

out in the EHA and Congress’ express efforts to place on lo-

cal and state education agencies the primary responsibility

for developing a plan to accommodate the needs of each in-

dividual handicapped child” led the Court to conclude that

Congress could not have intended to “leave undisturbed the

ability of a handicapped child to go directly to court with an

equal protection claim to a free appropriate public educa-

tion.” Jd. at 1011. In other words, it was the statute’s focus on

the required procedures before the local and state education

agencies, not just the judicial right of action that followed,

that led the Court to find the scheme comprehensive.

Indeed, the Court strongly suggested in Smith v. Robinson

that the mere existence of a judicial right of action under the

EHA would not itself be enough to foreclose a § 1983 action.

The Court explicitly noted that a procedural EHA claim

might be maintainable under § 1983 even if it could also be

brought directly under the statute, because such a procedural

challenge would not involve evasion of the EHA’s adminis-

trative remedial scheme. Jd. at 1014 n.17. The Court’s dis-

10

cussion of this point emphasizes that it was not the EHA’s

judicial remedies alone that the Court deemed comprehen-

sive, but rather its integrated administrative-judicial remedial

scheme.

Of course, the absence of a private right of action is im-

portant in concluding that a statute does not contain a suffi-

ciently comprehensive enforcement scheme. This Court has

stated that “a plaintiff’s ability to invoke § 1983 cannot be

defeated simply by ‘[t]he availability of administrative

mechanisms to protect the plaintiff’s interests.” Blessing, 520

U.S. at 347 (quoting Golden State Transit Corp. v. City of

Los Angeles, 493 U.S. 103, 106 (1989)). Thus, the Court has

not found enforcement schemes that did not contain private

rights of action to be “comprehensive.” See, e.g., Blessing,

520 U.S. at 348 (concluding that statute that contained no

private remedy was not comprehensive enough to foreclose

reliance on § 1983); Wright, 479 U.S. at 427-29 (finding no

congressional intent to preclude § 1983 where the only pri-

vate remedy contained in the statute at issue was access to

local grievance procedures). That a judicial right of action

may be necessary for a statutory scheme to be comprehen-

sive enough to close the door on § 1983 liability, however,

does not mean that it is sufficient to do so.

This Court’s decision in Gonzaga University v. Doe, 536

U.S. 273 (2002), also suggests that a statutory right of action,

on its own, is not sufficient to preclude a § 1983 remedy.

There, the Court noted, in holding that the Family Educa-

tional Rights and Privacy Act of 1974 (FERPA) did not cre-

ate a personal right that could be enforced through § 1983,

that its “implied right of action cases should guide the deter-

mination of whether a statute confers rights enforceable un-

der § 1983.” Gonzaga, 536 U.S. at 283. In other words, Gon-

zaga suggested that if a statute did not support its own right

of action, it was less likely to support a § 1983 action. Gon-

zaga also pointed to the absence of a private right of action

among the statutory enforcement mechanisms for FERPA as

11

further support for its holding that the statute at issue created

no private rights enforceable under § 1983. Jd. at 289. In light

of Gonzaga, a holding that § 1983 is also unavailable when-

ever a Statute does contain its own right of action would

leave little or nothing of the Maine v. Thiboutot presumption

that, as its plain text states, § 1983 is available to redress fed-

eral statutory violations.

If a private judicial right of action automatically sup-

planted, § 1983, § 1983 would only apply in the small cate-

gory of cases in which the statute at issue passed the first part

of the test for determining whether there is an implied right

of action — whether the statute demonstrates Congress’s in-

tent to create an enforceable right — but failed the second

part of the test — whether the statute demonstrates Con-

gress’s intent to create a judicial remedy for that right. See

Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (describing

the task in determining whether there is an implied right of

action as discerning whether the statute displays congres-

sional “intent to create not just a private right but also a pri-

vate remedy”). It would be paradoxical, however, to deter-

mine that a § 1983 remedy is not available in cases in which

Congress has made clear that it intended for there to be a pri-

vate remedy to enforce the right, but is available in cases in

which Congress has not made that intent clear.

Ill. AN ENFORCEMENT SCHEME PRECLUDES

RELIANCE ON § 1983 ONLY IF IT IS INCOM-

PATIBLE WITH THE § 1983 REMEDY.

The basic principle animating this Court’s decisions on

the use of § 1983 to enforce statutory rights is that congres-

sional intent to displace § 1983 may be inferred when a

§ 1983 remedy would be “‘inconsistent with Congress’ care-

fully tailored scheme.’” Blessing, 520 U.S. at 346 (quoting

Golden State Transit Corp., 493 U.S. at 107). The fundamen-

tal test for whether a statute’s enforcement scheme supplants

§ 1983 is not whether it contains some means of enforcing

the rights created by the statute, but whether § 1983 is some-

12

how incompatible with that means. See Blessing, 520 U.S. at

341 (explaining that Congress can supplant § 1983 either ex-

pressly or “by creating a comprehensive enforcement scheme

that is incompatible with individual enforcement under

§ 1983”) (emphasis added).

Thus, in Smith v. Robinson, this Court found the EHA’s

enforcement scheme to be sufficiently comprehensive be-

cause it could not reconcile the ability of parties to go

straight to court under § 1983 with the detailed administra-

tive procedure established under the EHA. Allowing a plain-

tiff to go straight to court, the Court noted, would “render

superfluous most of the detailed procedural protections out-

lined in the statute,” and “run counter” to Congress’s desire

for extensive interactions between parents and local educa-

tion agencies. Smith, 468 U.S. at 1011-12. Id. at 1012. Simi-

larly, in Sea Clammers, the statute at issue not only limited

the remedies available in citizen suits, but also placed various

other limitations on such suits, requiring plaintiffs, for exam-

ple, to give notice to the EPA, state, and alleged violator at

least sixty days before filing suit. Sea Clammers, 453 U.S. at

6. A party who went straight to couft seeking damages under

§ 1983 would bypass those limitations.

In contrast, an aggrieved party who seeks to enforce

§ 332(c)(7)(B) through § 1983 is not evading any require-

ments established by Congress. The principal method for en-

forcing § 332(c)(7(B), provided expressly by the statute it-

self, is a private right of action. When there are no special

prerequisites to a statutory private right of action and no ex-

press limits on the remedies available, there is absolutely

nothing incompatible about allowing a § 1983 action to be

brought in tandem with the statutory right of action. Doing so

does not allow a plaintiff to bypass congressional limitations

or undermine congressional intent.

Maine v. Thiboutot, in which this Court established that

§ 1983 applied to claims based on statutory violations, con-

firms that § 1983 rights of action are not incompatible with

13

other private rights of action-In Thiboutot, the plaintiffs had

a private right of action under Maine state law to appeal the

Department of Human Services’ reduction of their welfare

benefits. 448 U.S. at 3. Nonetheless, the Court found that

they could also obtain relief under § 1983. Though the exist-

ing right of action was created through state law, and the

Court therefore did not need to consider the issue of congres-

sional intent in creating that right of action, the Court’s deci-

sion shows that § 1983 and other private rights of action can

coexist peacefully.

Here, both the § 1983 and § 332(c)(7)(B) claims permit

the plaintiff to go to the same court, under the same circum-

stances, and argue the same facts and law. The only potential

difference between the two rights of action is the possible

remedies, yet Congress did not expressly limit the remedies

available under § 332(c)(7)(B). Under these circumstances,

the rights of action in § 1983 and in § 332(c)(7)(B) cannot be

considered so incompatible that the Court must infer that

Congress intended to preclude plaintiffs from turning to

§ 1983 for remedies.

The petitioners and the Solicitor General contend, how-

ever, that § 1983 is inconsistent with the § 332(c)(7)(B) right

of action in two principal respects: First, they argue, attor-

neys’ fees under 42 U.S.C. § 1988 are available in a § 1983

action, but are not provided under § 332(c)(7)(B); and sec-

ond, § 332(c(7)(B)(v) establishes a very short 30-day statute

of limitations, which, they argue, would not apply to a § 1983

action brought to enforce rights under § 332(c)(7)(B). The

first of these points is factually correct, but fails to establish

incompatibility of the two remedies. The second is just

wrong: Under 28 U.S.C. § 1658(a), the 30-day limitations

period provided by law for claims under § 332(c)(7)(B) is

fully applicable to a § 1983 action asserting such claims as

well.

With respect to attorneys’ fees, it is of course correct that

under the “American Rule,” attorneys’ fees are generally not

14

available unless a statute expressly provides for them, and

§ 332(c)(7(B\(v) does not provide for attorneys’ fees. See

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

240, 247 (1975). It is equally true that if § 1983 is available

to enforce § 332(c)(7)(B), a prevailing party may be eligible

for fees under 42 U.S.C. § 1988. Maine v. Thiboutot, 448

U.S. at 8-11. But that does not make the two remedies “in-

compatible,” nor does it mean that Congress could not have

intended a § 1983 remedy to be available.

Whenever a party attempts to use § 1983 to enforce a

statutory right, that is because § 1983 provides something

that the statutory remedies by themselves do not. Otherwise,

resort to § 1983 would be superfluous. In many instances, of

course, that “something” is attorneys’ fees. To hold that

§ 1983 is unavailable whenever it provides for attorneys’ fees

(or anything else that Congress did not expressly provide in

the underlying statute) would render Maine v. Thiboutot

meaningless by limiting § 1983’s availability to cases in

which it is unnecessary.

Thus, Congress’s silence about attorneys’ fees in

§ 332(c)(7)(B) means only that Congress did not provide for

that remedy in a direct action under the statute. It says noth-

ing at all about whether Congress intended to foreclose the

availability of fees through the otherwise applicable remedy

for a violation of federal statutory rights — § 1983.

As for the statute of iimitations, this case falls within an

exception to the general proposition that statutes of limita-

tions for § 1983 claims are borrowed from state law. Under

28 U.S.C. § 1658(a), that principle is inapplicable to cases in

which § 1983 is used to enforce rights first created by stat-

utes enacted after December 1, 1990. Section 1658(a) pro-

vides that “[e]xcept as otherwise provided by law, a civil ac-

tion arising under an Act of Congress enacted after [Decem-

ber 1, 1990] may not be commenced later than 4 years after

the cause of action accrues.” In Jones v. R.R. Donnelly &

Sons Co., 124 S. Ct. 1836 (2004), this Court held that a claim

15

arises under a statute enacted after December 1, 1990, if the

claim “was made possible by a post-1990 enactment” —

even if the cause of action is brought under a statute, such as

42 U.S.C. § 1981 or § 1983, that long predates 1990. Jd. at

1845. The claim in this case arises under a provision of the

Telecommunications Act enacted in 1996, and § 1658(a)

therefore applies.

That does not mean, however, that the statute of limita-

tions applicable to a § 1983 claim is four years. Sec-

tion 1658(a) provides for a four-year limitations period only

if there is no limitations period “otherwise provided by law.”

Here, the law under which the claim arises for purposes of

§ 1658(a) specifies that the claim is subject to a 30-day limi-

tations period. Thus, the four-year limitations period is

inapplicable, and the statute of limitations for the claim,

whether brought directly under the statute itself or under

§ 1983, is 30 days.’ Because of the applicability of § 1658(a),

there is no danger that the availability of an action under

§ 1983 will permit litigants to circumvent the limitations

period otherwise provided by law for claims under

§ 332(c(7)(B). Consequently, there is nothing incompatible

about the statutory remedy and the § 1983 remedy, and thus

no basis for inferring congressional intent to eliminate the

latter.

* Cf. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501

U.S. 350, 359 (1991) (“[W]here, as here, the claim asserted is one im-

plied under a statute that also contains an express cause of action with its

own time limitation, a court should look first to the statute of origin to

ascertain the proper limitations period.”).

16

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

Scott L. Nelson

Counsel of Record

Adina H. Rosenbaum"

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Attorneys for Amicus Curiae

Date: December 17, 2004

* Admitted only in the Commonwealth of Massachusetts.