Maher v. Hyde

United States Court of Appeals
For the First Circuit

No. 01-1031

THOMAS W. MAHER and VALERIE E. CALABRIA-MAHER

Plaintiffs, Appellants,

v.

DONALD B. HYDE; AT&T WIRELESS SERVICES; PLANNING BOARD OF THE
TOWN OF STOW; and INGEBORG HAGEMAN CLARK, RUTH KENNEDY, DONNA
M. JACOBS, KEITH H. MYLES, DONALD G. MCPHERSON, and THOMAS
OLLER, as they are members of the Planning Board of the Town
of Stow,

Defendants, Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
and Saris,* District Judge.

Edward J. Collins for appellants.
Stephen D. Anderson, with whom Anderson & Kreigler LLP were
on brief, for appellee AT&T Wireless Services.

December 3, 2001
* Of the District of Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. This is an appeal from the

district court's dismissal, for lack of subject matter

jurisdiction, of an action allegedly arising under 47 U.S.C. §

332(c)(7)(B)(iv) (the Telecommunications Act of 1996). Because

there is no longer an actual case or controversy between the

appellants and any of the defendants, we dismiss the appeal as

moot. Moreover, because of the frivolous nature of this appeal,

we order counsel for appellants to show cause why sanctions

should not be imposed.

I.

On November 30, 1999, Donald B. Hyde applied to the

Planning Board of the Town of Stow [the "Board"] for a permit to

construct a wireless communications facility at 29 Wheeler Road

in Stow, Massachusetts. On February 7, 2000, AT&T Wireless

Services [AT&T] applied for a similar permit for another

property in the Town of Stow at 23 Hillcrest Avenue. On May 4,

2000, the Board voted to deny the applications. The Board did

not, however, forward notice of its disapproval of the

applications to the Town Clerk. According to appellants, that

failure contravened the Board's rules. On June 6, 2000, the

Board voted to let Hyde and AT&T withdraw their applications

without prejudice. Hyde and AT&T then reapplied to the Board

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for permits for the same sites, and the Board noticed public

hearings on their refiled applications.

Thomas W. Maher, Jr. and Valerie E. Calabria-Maher,

residents of Stow, filed a complaint in the United States

District Court for the District of Massachusetts against Hyde,

AT&T, the Board and its individual members. The complaint

stated that the Mahers were "aggrieved" by the refusal of the

Board to file notice of its disapproval of the original Hyde and

AT&T applications with the Town Clerk; by the Board's

consideration of the refiled applications within two years of

its denial of the same applications; and by the Board's possible

"constructive approval" of the applications.1 The Mahers claimed

that the Board's actions violated state laws and local

regulations. They requested a declaration that the Board lacked

the authority to let Hyde and AT&T withdraw without prejudice

and then refile their (denied) applications, pursuant to Mass.

Gen. Laws ch. 231A, § 1 (authorizing courts to make "binding

declarations of right, duty, status and other legal relations");

relief in the nature of certiorari to correct substantial errors

of law under Mass. Gen. Laws ch. 249, § 4 (authorizing actions

for such relief); and injunctive relief barring further

1Exactly why the Mahers were "aggrieved" is not apparent
from the record, which indicates nothing about them except their
names and their address.

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proceedings on the refiled applications except in conformity

with Mass. Gen. Laws ch. 40A, § 16

("No . . . application . . . which has been unfavorably and

finally acted upon by the special permit granting . . .

authority shall be acted favorably upon within two years after

the date of final unfavorable action unless [enumerated

conditions are met]"). Although the complaint did not allege a

specific violation of federal law, it asserted: "Jurisdiction in

this action arises under 47 U.S.C. § 332(c)(7)(B)(4) [sic] [The

Telecommunications Act of 1996], 28 U.S.C. § 1331 [federal

question], and 28 U.S.C. § 1367 [supplemental jurisdiction over

state law claims]" (brackets in original).

On November 14, 2000, the district court granted AT&T's

motion to dismiss for lack of subject matter jurisdiction,

concluding that "plaintiffs fail to allege any cognizable

violation of the Telecommunications Act, or any other federal

law, on the face of their complaint."2 The Mahers filed a notice

of appeal on December 14, 2000.

Subsequent to the dismissal of the Mahers' action, the

Board denied both Hyde's and AT&T's refiled permit applications,

2Although only AT&T had filed a motion to dismiss, the
district court also dismissed the complaint against defendants
Hyde and the Board. The Board raised lack of subject matter
jurisdiction as an affirmative defense in its answer to the
complaint; Hyde has made no appearance in this case.

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and Hyde and AT&T challenged those denials in the district court

pursuant to the Telecommunications Act.3 On July 12, 2001,

pursuant to a settlement between the Board and AT&T, the

district court ordered that the Board issue a permit to AT&T for

the 23 Hillcrest Avenue property. Hyde's action against the

Board concerning the 29 Wheeler Road property is still pending.

II.

Federal courts do not issue advisory opinions. There

must be an actual controversy between the parties requiring

resolution:

The Constitution confines the federal
courts' jurisdiction to those claims which
embody actual "cases" or "controversies."
U.S. Const. art. III, § 2, cl. 1. This
requirement must be satisfied at each and
every stage of the litigation. When a case
is moot – that is, when the issues presented
are no longer live or when the parties lack
a legally cognizable interest in the outcome
– a case or controversy ceases to exist, and
dismissal of the action is compulsory.

Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (citation

omitted).

3 Although the record discloses neither the Board's denial
of Hyde's refiled application nor his challenge to that denial
in the district court, appellants' counsel called these events
to our attention at oral argument, and we take judicial notice
of them. See Hyde v. Town of Stow, No. 01-CV-10762-PBS (D. Mass
filed May 4, 2001). See Kowalski v. Gagne, 914 F.2d 299, 305
(1st Cir. 1990) ("It is well-accepted that federal courts may
take judicial notice of proceedings in other courts if those
proceedings have relevance to the matters at hand.").

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 Although the brief he filed suggests otherwise,

appellants' counsel stated at oral argument that 23 Hillcrest

Avenue is "a property that's not at issue in the case that's

here this morning."4 Counsel explained that "my clients are

challenging the case relating to the Hyde property . . . at 29

Wheeler Road," and even asserted (wrongly) that "my clients have

raised no issue in this court or any other court with respect to

[23] Hillcrest [Avenue]." As the Mahers, through counsel, have

now expressly disavowed any interest in the 23 Hillcrest Avenue

property, the appeal described in their papers of the Board's

actions concerning AT&T and 23 Hillcrest Avenue is necessarily

moot.

The 29 Wheeler Road appeal is also moot. The Mahers'

complaint challenges the Board's decision to let Hyde withdraw

without prejudice his initial (denied) application, and its

subsequent decision to let Hyde file a new application. Since

the Mahers commenced their action, however, the Board has denied

Hyde's refiled application. Because this denial is the very

outcome the Mahers sought in court, there is no longer a live

controversy between the Mahers and either Hyde or the Board

4 Appellants' brief, which is a challenge to decipher,
refers several times to AT&T's permit application, and nowhere
indicates that the district court's dismissal of the claims vis-
a-vis AT&T and 23 Hillcrest Avenue is not being appealed.

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concerning the Board's actions. We therefore dismiss this

appeal as moot. See Cruz, 252 F.3d at 533.

III.

Federal Rule of Appellate Procedure 38 provides that

"[i]f a court of appeals determines that an appeal is frivolous,

it may, after a separately filed motion or notice from the court

and reasonable opportunity to respond, award just damages and

single or double costs to the appellee."5 Rule 38 permits the

award of attorney's fees as "just damages." Cronin v. Town of

Amesbury, 81 F.3d 257, 261 (1st Cir. 1996). We have held that

where "[t]he bulk of the blame for the frivolous appeal rests

with appellants' attorney," it is appropriate to impose

sanctions on the attorney personally. Id. at 262; see also

Hilmon Co. (V.I.) Inc. v. Hyatt Int'l, 899 F.2d 250, 254 (3rd

Cir. 1990) (imposing Rule 38 sanctions against appellant's

counsel). Evidence of bad faith is not required to support Rule

38 sanctions. See Pimentel v. Jacobsen Fishing Co. Inc., 102

F.3d 638, 641 n.2 (1st Cir. 1996).

We have observed that "[t]he purpose of [Rule 38]

5Sanctions are also available under 28 U.S.C. § 1927,
which provides that "[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs,
expenses, and attorneys' fees reasonably incurred because of
such conduct."

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penalties is to discourage litigants from wasting the time and

monetary resources of both their opponents and the nation's

judicial system with legal arguments that do not merit

consideration." E.H. Ashley & Co., Inc. v. Wells Fargo Alarm

Services, 907 F.2d 1274, 1280 (1st Cir. 1990). It is hard to

imagine a clearer case of an appeal unworthy of consideration.

The Mahers submitted a brief to us that purports to appeal the

district court's dismissal of their complaint which named AT&T

as a defendant. The brief repeatedly references AT&T's permit

application without disclosing that the 23 Hillcrest Avenue

property is outside the scope of the appeal. At oral argument,

however, counsel indicated that 23 Hillcrest Avenue was "not at

issue in the case that's here this morning." That being so, an

appeal encompassing the 23 Hillcrest Avenue proceedings should

not have been filed.

Moreover, at oral argument, counsel revealed an

unfamiliarity with his own complaint and brief by suggesting

that AT&T's application for a permit for the 23 Hillcrest Avenue

property was never at issue in this litigation. He said that

"as far as I know, no action was pursued with respect to the

Hillcrest Avenue property." He also declared, equally

inexplicably, that the Mahers "have raised no issue in this

court or any other court with respect to [23] Hillcrest

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[Avenue]." Yet his own complaint named AT&T as a defendant and

made parallel allegations concerning the 23 Hillcrest Avenue and

29 Wheeler Road properties.6

The appeal is also frivolous as to Hyde's 29 Wheeler

Road property. Although an actual controversy may have existed

when the Mahers filed their notice of appeal in December 2000,

the appeal became moot in April 2001 – five months before oral

argument – when the Board denied Hyde's refiled permit

application. Although the Mahers expressed concern at oral

argument that Hyde might emerge from his litigation against the

6 Although prefaced with yet another denial, counsel did
acknowledge at one point the contents of his papers:

THE COURT: I thought 23 Hillcrest Avenue was a
property involved in both of these proceedings. Is
that correct or not correct?
MR. COLLINS: That is not my understanding, your Honor.
My understanding is that my client brought an
attack . . . on the withdrawal issue, I think fairly
said alleging improper withdrawal by the Planning
Board and I think with respect to both properties, my
recollection is the complaint mentions both
properties.

This convoluted acknowledgment of the obvious does not, of
course, excuse counsel's multiple assertions to the contrary,
nor the uncertainty about the content of his own complaint
naming AT&T as a defendant. The complaint repeatedly references
AT&T, and includes allegations such as the following:

31. Plaintiffs are aggrieved by the acceptance and
notice of public hearing by the Stow Planning Board on
the refiled AT&T application for a special permit [for
23 Hillcrest Avenue] within two years of its
disapproval of the same application.

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Board with a permit, as did AT&T, this is mere speculation. The

Mahers got what they wanted when the Board denied Hyde's

application. If the Mahers were concerned that their interests

could be adversely affected by Hyde's action against the Board,

they could have petitioned to intervene in that litigation.

Their failure to withdraw the 29 Wheeler Road appeal once it had

become moot is thus an additional ground for our conclusion that

the appeal is frivolous.

Before sanctions for filing a frivolous appeal may be

imposed sua sponte, Rule 38 requires "notice from the court and

reasonable opportunity to respond." See In re JC's East, Inc.,

84 F.3d 527, 532 (2d Cir. 1996) (ordering appellants and their

attorney to show cause within thirty days why they should not be

sanctioned); McDonough v. Royal Caribbean Cruises, Ltd., 48 F.3d

256, 259 (7th Cir. 1995) (granting appellant fifteen days to

explain why sanctions were not warranted). We therefore order

appellants' counsel to show cause, within fourteen days, why he

should not be sanctioned by payment of costs and fees for having

filed a frivolous appeal. See Fed. R. App. P. 38. Appellee

should submit an affidavit within fourteen days itemizing the

reasonable costs and fees of this appeal.

The appeal is dismissed as moot. Appellants' counsel
has fourteen days from the filing of this decision to file a
memorandum explaining why sanctions are not warranted for
pursuing a frivolous appeal. Appellee should submit an

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affidavit within fourteen days itemizing the reasonable costs
and fees of this appeal. Appellants' counsel will then have
seven days to respond to appellee's submission. Appellants'
counsel must deliver to his clients a copy of this opinion, and
provide proof thereof.

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