Firstenberg v. City of Santa Fe

FILED
United States Court of Appeals
Tenth Circuit

October 9, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR FIRSTENBERG,

Plaintiff-Appellant,
v. No. 11-2156
CITY OF SANTA FE, NEW MEXICO;
AT&T MOBILITY SERVICES, LLC,

Defendants-Appellees.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:11-CV-00008-JAP-WDS)

Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, New Mexico,
for Plaintiff-Appellant.

Marcos D. Martínez, Assistant City Attorney, Santa Fe, New Mexico (Eugene I. Zamora,
City Attorney, Santa Fe, New Mexico, with him on the brief), for Defendant-Appellee
City of Santa Fe.

Hans J. Germann, Mayer Brown LLP, Chicago, Illinois (John E. Muench and Kyle J.
Steinmetz, Mayer Brown LLP, Chicago, Illinois; Mark A. Basham, Basham & Basham
P.C., Santa Fe, New Mexico, with him on the brief), for Defendant-Appellee AT&T
Mobility Services, LLC.

Before BRISCOE, Chief Judge, BALDOCK and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.
 Electromagnetic radiation is a form of energy ubiquitous in our modern world,

associated with everything from WiFi networks to microwave ovens to power lines. Most

of us do not notice it. Some individuals, however, apparently suffer from a condition

known as electromagnetic hypersensitivity (“EHS”), which requires them to avoid

exposure to sources of electromagnetic radiation. These sources include cell-phone

towers, sometimes called “base stations,” which emit a form of energy known as

radiofrequency (“RF”) radiation. See generally Federal Communications Commission,

Radio Frequency Safety, http://transition.fcc.gov/oet/rfsafety/.

Arthur Firstenberg allegedly suffers from EHS, and he brought this lawsuit against

the City of Santa Fe, New Mexico (“City”), and AT&T Mobility Services, LLC

(“AT&T”), asserting that signal upgrades at AT&T base stations in Santa Fe adversely

affected his health and that the City is required to regulate those upgrades. Litigation

proceeded apace and the district court dismissed Mr. Firstenberg’s action against the City

and AT&T for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

And Mr. Firstenberg appealed.

After a full round of appellate briefing, we noted a potential jurisdictional

infirmity: the failure of Mr. Firstenberg’s complaint to satisfy the well-pleaded complaint

rule for purposes of federal-question jurisdiction under 28 U.S.C. § 1331. We asked for

supplemental briefing, which the parties provided. They all insisted that federal

jurisdiction is proper. After careful review, we disagree. We are therefore constrained to

reverse the district court’s dismissal orders and resulting judgment and to remand the case

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to the district court with directions to vacate its judgment and remand the case to state

court.

I

Mr. Firstenberg is a resident of Santa Fe. As an EHS sufferer, he must avoid

exposure to RF radiation from cell phones, base stations, and other sources. AT&T owns

and operates several base stations in Santa Fe. In November 2010, AT&T upgraded its

broadcast signals from 2G (second generation) to 3G (third generation),1 increasing the

amount and intensity of RF radiation from its base stations and causing Mr. Firstenberg to

suffer insomnia, irritability, eye pain, dizziness, nausea, and itching.

Over the years, AT&T has been granted “special exceptions” under the City’s

Land Development Code (“Code”) to construct its base stations. AT&T did not apply for

or obtain additional special exceptions prior to initiating the 3G broadcasts. Mr.

Firstenberg believes this was improper under the Code and points to § 14-3.6(B)(4)(b),

which requires the City’s Board of Adjustment to approve an additional special exception

if there is a “more intense use” of an existing structure.2

1
As the district court explained, “Third Generation or ‘3G’ internet access
technology provides users with global cell phone roaming capabilities, better voice
quality using wireless internet access, and simultaneous voice and data services. Second
Generation or ‘2G’ internet access technology provides internet and mobile data services
at a slower rate.” Firstenberg v. City of Santa Fe, 782 F. Supp. 2d 1262, 1267 n.5
(D.N.M. 2011).
2
At the time, § 14-3.6(B)(4)(b) provided in full: “The special exceptions
listed in this chapter, when granted, are considered granted for a specific use and
intensity, any change of use or more intense use shall be allowed only if such change is
(continued...)

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 Proceeding pro se, Mr. Firstenberg petitioned for a writ of mandamus in New

Mexico state court, naming the City and AT&T as defendants. He claimed that “[t]he

City of Santa Fe has a duty under § 14-3.6(B)(4)(b) to require AT&T to apply for a new

Special Exception . . . for each of its existing base stations before it is permitted to

increase their intensity of use.” Aplt. App. at 172 (Second Am. Pet. for Writ of

Mandamus, filed Dec. 29, 2010). He also alleged that he suffered from EHS, that he was

“a qualified individual with a disability” under the Americans with Disabilities Act

(“ADA”), id. at 171, and that he was therefore “beneficially interested in the enforcement

of this ordinance,” id. at 172.

Based on his prior experience—specifically, a public hearing at which the Board

of Adjustment refused to regulate AT&T’s antenna upgrades—Mr. Firstenberg

anticipated that the City might raise a preemption defense under Section 704 of the

Telecommunications Act of 1996 (“TCA”). Section 704 prohibits local governments

from regulating “the placement, construction, and modification of personal wireless

service facilities on the basis of the environmental effects of radio frequency emissions.”

47 U.S.C. § 332(c)(7)(B)(iv). His petition thus set forth the following under the heading

“Argument”:

2
(...continued)
approved by the Board of Adjustment under a special exception.” Firstenberg, 782 F.
Supp. 2d at 1267 (quoting Santa Fe, N.M. Land Development Code § 14-3.6(B)(4)(b)
(2001)) (internal quotation marks omitted). This provision has since been amended and
recodified at § 14-3.6(C)(3), but those changes do not affect our decision here.

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 20. Section 704 of the [TCA] is not the only federal law that the City
of Santa Fe must obey. The City also has to obey Title II of the
Americans with Disabilities Act, which prohibits public entities from
subjecting any person to discrimination by reason of their disability (42
USC § 12132), and the Fifth and Fourteenth Amendments of the
Constitution, which guarantee to every citizen the equal protection of
the laws, and provide that no citizen be deprived of life, liberty, or
property without due process. . . .

21. There is actually no conflict between the [TCA] and other federal
laws. . . . The [TCA] contains no language expressly modifying,
impairing, or superseding the ADA. In fact the only mention of the
ADA in the [TCA] (Section 255) requires compliance with it. Neither
does the [TCA] supersede or modify the US Constitution, nor could it.
. . . If regulation of radio frequency radiation is required in order to
comply with the Americans with Disabilities Act or the Constitution,
a city is obligated to do so.

22. The City of Santa Fe is required to enforce its laws, as well as to
take jurisdiction over the intensity of radio frequency radiation from
permitted facilities, in order to fulfill its obligations under the ADA and
the Constitution.

Aplt. App. at 176–77. In the next section, entitled “Cause of Action,” Mr. Firstenberg

reiterated that the City “has a clear legal duty to enforce the requirements of its Land

Development Code, including, in particular, § 14-3.6(B)(4)(b),” that the City “has refused

to enforce that section of the Code,” and that mandamus was therefore appropriate. Id. at

178. In this section, Mr. Firstenberg made no reference to the ADA or the U.S.

Constitution. He was similarly silent regarding these sources of federal law in his prayer

for relief. There, Mr. Firstenberg requested the court to “issue a writ of mandamus

directing the City of Santa Fe . . . to commence enforcement proceedings, as provided in .

. . its [Code], by giving notice to AT&T that it must discontinue its 3G broadcasts within

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the City of Santa Fe within 30 days, and that it must submit an application for a Special

Exception for each base station from which it proposes to broadcast such signals.” Id.

The state court issued an alternative writ of mandamus, ordering the City to

prohibit the 3G broadcasts unless and until special exceptions were granted or to show

cause why it had not done so. AT&T and the City then removed the action to federal

district court, asserting jurisdiction based on the existence of a federal question under 28

U.S.C. § 1331. They each filed a motion to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). The City joined in the arguments of AT&T; as

such, they both contended that § 14-3.6(B)(4)(b) did not apply to broadcast-signal

upgrades, but that even if it did, the TCA preempted Mr. Firstenberg’s claim. They also

argued that Mr. Firstenberg was “not making any claim under the ADA” and that even if

he was, the claim failed. Aplt. App. at 197 (AT&T Mem. in Supp. of Mot. to Dismiss,

filed Jan. 28, 2011).

The district court granted the defendants’ motions to dismiss and it issued separate,

though similar, opinions.3 The court briefly addressed its jurisdiction over Mr.

Firstenberg’s claims:

Plaintiff’s claim hinges on whether the City has authority under the
[Code] to regulate wireless transmissions. To resolve this issue the
Court must answer a “substantial question of federal law,” which is
whether the City can enforce its [Code] in light of [Section 704 of the

3
The opinion granting the City’s motion to dismiss was published. See
Firstenberg, 782 F. Supp. 2d at 1262. The opinion granting AT&T’s motion to dismiss
was not. See Aplt. App. at 252 (Am. Mem. Op. & Order, filed Apr. 12, 2011).

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 TCA]. In addition, Plaintiff invokes his right to protection under the
ADA and under the Equal Protection and Due Process Clauses of the
United States Constitution.

Id. at 258–59 (citation omitted) (quoting Morris v. City of Hobart, 39 F.3d 1105, 1111

(10th Cir. 1994)). The court then reached the merits of the claims and defenses,

concluding that the TCA preempted the City’s authority to regulate AT&T’s broadcast

upgrades. The court construed Mr. Firstenberg’s complaint—that is, his state-court

mandamus petition4—as raising separate equal protection, procedural due process, and

substantive due process claims. The court briefly addressed those claims and denied each

of them. Mr. Firstenberg timely appealed and retained counsel.

After a full round of appellate briefing but prior to oral argument, we asked the

parties to file supplemental briefs addressing whether Mr. Firstenberg’s complaint was

sufficiently “well-pleaded” to satisfy the requirements for federal-question jurisdiction

under 28 U.S.C. § 1331. The parties filed supplemental briefs, and all contended that the

district court’s jurisdiction was proper. We heard oral argument on both the jurisdictional

and merits issues. Contrary to the parties’ arguments, we conclude that the district court

lacked subject-matter jurisdiction over Mr. Firstenberg’s case, and, consequently, so

4
We pause to note that what we refer to in this opinion as Mr. Firstenberg’s
complaint is his Second Amended Petition for Writ of Mandamus. This was filed on
December 28, 2010—after the state court actually issued the alternative writ of
mandamus on December 22, 2010. The second amended petition was filed in order to
change the name of one of the defendants from “AT&T, Inc.” to “AT&T Mobility
Services, LLC,” the local New Mexico entity. Despite that chronological wrinkle, for
practical purposes, we, like the district court, look to the second amended petition as Mr.
Firstenberg’s complaint.

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do we.

II

Federal subject matter jurisdiction is elemental. It cannot be consented to or

waived, and its presence must be established in every cause under review in the federal

courts. Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1135 n.4 (10th Cir. 2010) (“[W]e

must satisfy ourselves not only of our own jurisdiction, but also that of the lower courts in

the cause under review.” (quoting Estate of Harshman v. Jackson Hole Mountain Resort

Corp., 379 F.3d 1161, 1164 (10th Cir. 2004)) (internal quotation marks omitted); accord

New York v. Shinnecock Indian Nation, 686 F.3d 133, 137 (2d Cir. 2012). A case

originally filed in state court may be removed to federal court if, but only if, “federal

subject-matter jurisdiction would exist over the claim.” Hansen v. Harper Excavating,

Inc., 641 F.3d 1216, 1220 (10th Cir. 2011). There are different bases for the exercise of

federal jurisdiction. Only one is at issue here: the district court’s jurisdiction over “civil

actions arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C.

§ 1331—so-called federal-question jurisdiction.

To assess the presence of a federal question, our task is to look to the “face of the

complaint.” Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1165 (10th Cir. 1999)

(“[F]ederal question jurisdiction must appear on the face of the complaint . . . .”). We

must “look to the way the complaint is drawn” and ask, is it “drawn so as to claim a right

to recover under the Constitution and laws of the United States”? Bell v. Hood, 327 U.S.

678, 681 (1946).

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 For a case to arise under federal law within the meaning of § 1331, the plaintiff’s

“well-pleaded complaint” must establish one of two things: “either that federal law

creates the cause of action or that the plaintiff’s right to relief necessarily depends on

resolution of a substantial question of federal law.” Nicodemus v. Union Pac. Corp., 440

F.3d 1227, 1232 (10th Cir. 2006) (quoting Morris, 39 F.3d at 1111) (internal quotation

marks omitted); accord Gilmore v. Weatherford, --- F.3d ----, 2012 WL 3797736, at *8

(10th Cir. 2012); see also Viqueira v. First Bank, 140 F.3d 12, 17 (1st Cir. 1998) (“[T]he

well-pleaded complaint rule restricts the exercise of federal question jurisdiction to

instances in which a federal claim is made manifest within the four corners of the

plaintiffs’ complaint.”). “The ‘substantial question’ branch of federal question

jurisdiction is exceedingly narrow—a ‘special and small category’ of cases.” Gilmore, ---

F.3d ----, 2012 WL 3797736, at *8 (quoting Empire Healthchoice Assurance Inc. v.

McVeigh, 547 U.S. 677, 699 (2006)).

The well-pleaded complaint rule makes the plaintiff the “master” of his claim.

Nicodemus, 440 F.3d at 1232 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987)). The plaintiff can elect the judicial forum—state or federal—based on how he

drafts his complaint. Although he “may not circumvent federal jurisdiction by omitting

federal issues that are essential to his . . . claim,” id., he can nevertheless “avoid federal

jurisdiction by exclusive reliance on state law,” id. (quoting Caterpillar, 482 U.S. at 392)

(internal quotation marks omitted). “Neither the plaintiff’s anticipation of a federal

defense nor the defendant’s assertion of a federal defense is sufficient to make the case

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arise under federal law.” Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1060 (10th Cir.

2006); see Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., --- F.3d ----, 2012

WL 3590862, at *5 (10th Cir. 2012) (“To determine whether [a] claim arises under

federal law, [courts] examine the well[-]pleaded allegations of the complaint and ignore

potential defenses . . . .” (alterations in original) (ellipsis in original) (quoting Beneficial

Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003)) (internal quotation marks omitted)).5

A

Before specifically examining the averments of Mr. Firstenberg’s complaint, we

pause to address an important preliminary matter: the pro se nature of his complaint. See

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1073 n.7 (10th Cir. 2008)

(“The fact that plaintiffs were represented by counsel during this appeal does not affect

the solicitous construction we must afford their earlier pro se filings.”). “We read pro se

complaints more liberally than those composed by lawyers.” Andrews v. Heaton, 483

F.3d 1070, 1076 (10th Cir. 2007). However, as we often reiterate, the generous

construction that we afford pro se pleadings has limits, and we must avoid becoming the

plaintiff’s advocate. See, e.g., Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir.

2009). Though we do not hold the pro se plaintiff to the standard of a trained lawyer, we

nonetheless rely on “the plaintiff’s statement of his own cause of action.” Turgeau, 446

5
The “exception” or “corollary” to the well-pleaded complaint rule known as
the complete-preemption doctrine is not implicated in this case. Schmeling v. NORDAM,
97 F.3d 1336, 1339 (10th Cir. 1996); see Devon Energy, --- F.3d ----, 2012 WL 3590862,
at *5 n.4, *6 (explicating the complete-preemption doctrine).

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F.3d at 1060 (quoting Schmeling, 97 F.3d at 1339) (internal quotation marks omitted).

Thus, we “may not rewrite a [complaint] to include claims that were never presented.”

Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (quoting Parker v. Champion,

148 F.3d 1219, 1222 (10th Cir. 1998)) (internal quotation marks omitted).

Quite often we are called upon to apply these liberal-construction principles where

the focus is on the substance of the claim—viz., the question that we must determine is

whether the pro se plaintiff has sufficiently pleaded a substantive claim for relief. See,

e.g., Dudnikov, 514 F.3d at 1073 (“[C]rediting the complaint as true as we must at this

stage of the litigation, and further giving it the solicitous construction due a pro se filing,

the facts described above are sufficient to permit an inference that defendants tortiously

interfered with plaintiffs’ business.” (footnote omitted) (citation omitted)); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[I]f the court can reasonably read the

pleadings to state a valid claim on which the plaintiff could prevail, it should do so

despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.”). However, we are content to assume without deciding that these same

liberal-construction principles apply with full force to the distinct jurisdictional inquiry

we are obliged to undertake here. Compare Welch v. Tex. Dep’t of Highways & Pub.

Transp., 483 U.S. 468, 474 (1987) (“The jurisdiction of the federal courts is carefully

guarded against expansion by judicial interpretation[.]” (quoting Am. Fire & Cas. Co. v.

Finn, 341 U.S. 6, 17 (1951)) (internal quotation marks omitted)), and Sac & Fox Nation,

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193 F.3d at 1168 (“[W]hen the question to be considered is one involving the jurisdiction

of a federal court, jurisdiction must be shown affirmatively, and that showing is not made

by drawing from the pleadings inferences favorable to the party asserting it.” (alteration

in original) (quoting Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.

1998)) (internal quotation marks omitted)), with Coando v. Coastal Oil & Gas Corp., 44

F. App’x 389, 395–96 (10th Cir. 2002) (affording plaintiff’s pro se complaint “the

considerable benefit of the doubt” as to federal-question jurisdiction, but stating: “[T]he

district court’s task in assessing the substantiality of a claim for purposes of [federal-

question] jurisdiction can be difficult. This is especially true in cases, such as this one,

that are brought by pro se litigants who may lack the legal training necessary to allege any

more than facts sufficient to describe his or her alleged injury.” (citation omitted))

We must determine whether the averments of Mr. Firstenberg’s complaint present

a federal question upon which the district court could properly ground its subject matter

jurisdiction. In other words, quite apart from the substantive viability of those

averments, we must assess whether they satisfy the well-pleaded complaint rule, for

purposes of establishing federal-question jurisdiction. And we assume that liberal-

construction principles squarely apply to that jurisdictional inquiry. Even affording a

liberal construction to the averments of Mr. Firstenberg’s complaint, however, we

conclude that they are not sufficient to demonstrate the presence of federal-question

jurisdiction. Accordingly, the district court lacked subject-matter jurisdiction over

this case.

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 B

Our review of the complaint—a petition seeking mandamus under New Mexico

law—convinces us that it does not state a claim arising under federal law within the

meaning of § 1331. Plainly, the pith of the complaint, which Mr. Firstenberg never

sought to amend, is a state-law cause of action. Mr. Firstenberg asserted a claim based on

Code § 14-3.6(B)(4)(b), arguing that the City was duty-bound to regulate AT&T’s 3G

broadcasts. Federal law neither created this cause of action nor is federal law a necessary

element of it. It is purely a state-law claim.

Of course, Mr. Firstenberg did make reference in the complaint to four different

sources of federal law: the TCA, the ADA, the Fourteenth Amendment, and the Fifth

Amendment. The parties argue that invocation of these sources of federal law is

sufficient to bring the case into federal court. We do not agree.

First, as to the TCA, Mr. Firstenberg made no claim under this statute. Rather, his

reference to it was in anticipation of the City’s and AT&T’s preemption defense based on

Section 704. But neither anticipation by a plaintiff nor assertion by a defendant of a

defense based on federal law—including a preemption defense—is enough to confer

federal jurisdiction. See Caterpillar, 482 U.S. at 393 (“[A] case may not be removed to

federal court on the basis of a federal defense, including the defense of pre-emption, even

if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede

that the federal defense is the only question truly at issue.”); Nicodemus, 440 F.3d

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at 1232.6

Next, as to the ADA and the Constitution, all parties argue that Mr. Firstenberg’s

complaint states affirmative claims under these laws. As support, they point to the

following language in the complaint: “The City of Santa Fe is required to enforce its laws,

as well as to take jurisdiction over the intensity of [RF] radiation from permitted facilities,

in order to fulfill its obligations under the ADA and the Constitution.” Aplt. App. at 177

(emphasis added). This, however, will not pass jurisdictional muster.

The district court’s task—and consequently, ours, too—is to “look to the way the

complaint is drawn to see if it is drawn so as to claim a right to recover under the

Constitution and laws of the United States.” Bell, 327 U.S. at 681. A right to recover

under federal law cannot be deemed to be present through the assertion of a state-law

cause of action just because that assertion is predicated on the notion that compliance with

that state law would effectively vindicate the plaintiff’s federal rights. Drawing up a

complaint that way, as Mr. Firstenberg did here, simply does not satisfy the well-pleaded

6
The Fourth Circuit faced a situation very similar to the one we confront
here and reached the same conclusion. See Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir.
2005). There, the plaintiffs brought state-law claims against Nokia, contending that their
wireless phones emitted unsafe levels of RF radiation. The district court thought that
federal-question jurisdiction existed because “(1) . . . Nokia would raise the affirmative
defense that the state law claims are preempted by the [Federal Communications Act] and
federal RF radiation standards and (2) . . . the . . . plaintiffs would be called upon to rebut
that defense.” Id. at 445–46. The Fourth Circuit found this to be error, concluding that
although “the affirmative defense of preemption” was “lurking in the background,” that
did not transform the plaintiffs’ claims “into ones arising under federal law.” Id. at 446
(quoting Gully v. First Nat’l Bank, 299 U.S. 109, 117 (1936)) (internal quotation marks
omitted). That reasoning applies with equal force here.

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complaint rule. See Gully, 299 U.S. at 116 (“By unimpeachable authority, a suit brought

upon a state statute does not arise under an act of Congress or the Constitution of the

United States because prohibited thereby. With no greater reason can it be said to arise

thereunder because permitted thereby.” (citation omitted)).

The thrust of Mr. Firstenberg’s complaint remains a state-law-created claim for

relief. See Aplt. App. at 177–78 (styling as his “Cause of Action” the claim that the City

“has a clear legal duty to enforce the requirements of its Land Development Code,

including, in particular, § 14-3.6(B)(4)(b)”). And the necessary elements of that claim do

not “rise or fall on the resolution of a question of federal law.” Pinney, 402 F.3d at 449;

see MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002) (holding that a

complaint alleging state-law torts and whose only reference to federal law was an

allegation that defendant’s facility “was maintained in violation of federal regulations as

well as in violation of state and local regulations” did not “suffice to render the action one

arising under federal law”); Martinez v. U.S. Olympic Comm., 802 F.2d 1275, 1280 (10th

Cir. 1986) (holding that complaint that alleged common-law negligence and conclusorily

asserted that federal constitutional rights “were violated” and “federal questions [we]re

involved” did not satisfy well-pleaded complaint rule (quoting portions of the complaint)

(internal quotation marks omitted)). Indeed, as noted, Mr. Firstenberg makes no

reference to the ADA or the U.S. Constitution in the “Cause of Action” section of his

complaint, and his complaint’s prayer for relief seeks only an order directing the City to

enforce its Code.

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 This would be a different case had Mr. Firstenberg asserted in his complaint that

the City’s failure to regulate AT&T’s 3G broadcasts resulted in violations of the ADA or

the Constitution. Such a complaint would almost certainly state a claim “directly under”

federal law. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 69

n.13 (1978). However, Mr. Firstenberg’s complaint seems to invoke the ADA and the

Constitution for an altogether different purpose—not for stating affirmative claims

thereunder, but for inoculating against the federal preemption defense that he rightly

predicted would emerge in the case.

Mr. Firstenberg’s argument was that, whatever the preemptive effect of Section

704, it was overridden by the ADA and the Constitution—viz., that the City had to

enforce § 14-3.6(B)(4)(b) in order to fulfill its other federal obligations, Section 704

notwithstanding. See id. at 176–77 (“Section 704 of the [TCA] is not the only federal law

that the City of Santa Fe must obey. . . . There is actually no conflict between the [TCA]

and other federal laws.”). This argument—embodied in his complaint’s terms—was

plainly designed to parry the preemption defense. But federal-question jurisdiction turns

upon thrusts, not parries, and anticipatory rebuttals based on federal law do not confer

jurisdiction any more than anticipated federal defenses do. See Louisville & Nashville

R.R. v. Mottley, 211 U.S. 149, 152 (1908) (“It is not enough that the plaintiff alleges some

anticipated defense to his cause of action, and asserts that the defense is invalidated by

some provision of the Constitution . . . .”); Cal. Shock Trauma Air Rescue v. State Comp.

Ins. Fund, 636 F.3d 538, 541 (9th Cir. 2011) (noting that a “potential response to a

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defense” based on federal law did not satisfy the well-pleaded complaint rule); Bracken v.

Matgouranis, 296 F.3d 160, 163–64 (3d Cir. 2002) (“[S]peculation on possible defenses

and responding to such defenses in an attempt to demonstrate that a federal question

would likely arise is not a necessary element of a plaintiff’s cause of action, and thus does

not create federal subject matter jurisdiction.”).

Our conclusion in this regard is not altered even if we were to look beyond Mr.

Firstenberg’s complaint and liberally construe the allegations of other papers that he filed

in the district court. As we noted, after removing Mr. Firstenberg’s action from state

court to federal district court, AT&T moved to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

granted. In that motion, with the City joining, AT&T contended that § 14-3.6(B)(4)(b)

did not apply to broadcast-signal upgrades, but that even if it did, the TCA preempted Mr.

Firstenberg’s claim. They also argued that Mr. Firstenberg was “not making any claim

under the ADA” and that even if he was, the claim failed. Aplt. App. at 197.

Specifically, AT&T argued that Mr. Firstenberg’s “status under the ADA [wa]s irrelevant

because federal law [i.e., the TCA] expressly bars the relief [he] seeks,” and, “[a]s a

result, the Court need not consider the ADA further.” Id.

Mr. Firstenberg, proceeding pro se, responded that § 14-3.6(B)(4)(b) imposed a

non-discretionary duty on the City to regulate AT&T’s signal upgrades. He

acknowledged the force of the defendants’ preemption argument. But, employing it as a

defense to preemption, Mr. Firstenberg insisted that the Fourteenth Amendment overrode

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the TCA’s preemptive effect. See Aplt. App. at 216 (Resp. to AT&T Mot. to Dismiss,

filed Feb. 14, 2011) (“If a state or local government needs to regulate radio frequency

radiation in order to protect the Fourteenth Amendment rights of citizens, then it is

required to do so, regardless of Section 704 of the [TCA].”). As for the ADA, he

conceded that his claim was “not ‘under’ the ADA” and explained that he was “not

asking the Court to determine that the City is in violation of the ADA.” Id. at 219. And

we do not read his invocation of the Constitution any differently. See id. (“Rather,

Plaintiff alleges . . . that the City is required to enforce that ordinance [§ 14-3.6(B)(4)(b)]

in a manner consistent with its obligations under the ADA and the Fourteenth

Amendment.”). In essence, Mr. Firstenberg’s argument was simply that “the City is

required to enforce that ordinance [§ 14-3.6(B)(4)(b)] in a manner consistent with its

obligations under the ADA and the Fourteenth Amendment.” Id.

Accordingly, even affording a liberal construction to Mr. Firstenberg’s post-

complaint filings, we cannot conclude that Mr. Firstenberg’s references to federal law are

sufficient to demonstrate that his complaint is founded on federal law. Thus, we conclude

that the averments of Mr. Firstenberg’s complaint fail to satisfy the well-pleaded

complaint rule, for purposes of demonstrating federal-question jurisdiction.

The parties interpose a couple of arguments to the contrary, but we do not find

them persuasive. The City contends that “the TCA, ADA, the Fourteenth Amendment,

and the Fifth Amendment are essential elements of” Mr. Firstenberg’s claim, without

which the City “would owe no duty to” Mr. Firstenberg. City Supp. Br. at 5. That is

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plainly wrong. Mr. Firstenberg’s claim is a state-law claim in form and substance, and no

element of the claim necessarily turns upon, or requires a court to construe, any federal

statute or the Constitution. Cf. Gilmore, --- F.3d ----, 2012 WL 3797736, at *12 (holding

federal-question jurisdiction was present where “plaintiffs have framed their state-law

claim in such a fashion that they succeed only if they are correct that the defendants failed

to meet federal requirements for [chat] removal”).

Relatedly, AT&T asserts that the Supreme Court’s decision in City of Chicago v.

International College of Surgeons, 522 U.S. 156 (1997), supports jurisdiction here. But

that case stands for the unremarkable proposition that federal-question jurisdiction exists

over a state-law cause of action when the “right to relief under state law requires

resolution of a substantial question of federal law.” Id. at 164 (emphasis added) (quoting

Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983))

(internal quotation marks omitted). In that case, the plaintiff asserted federal

constitutional claims in a state-court complaint for administrative review. See id. at 160.

Because the federal claims were an essential part of the plaintiff’s case-in-chief, they

“unquestionably” arose under federal law, and removal was proper. Id. at 164; see

Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 311 (2005)

(holding that federal-question jurisdiction existed because the resolution of plaintiff’s

state-law quiet-title action against defendant necessarily turned on whether the Internal

Revenue Service failed under federal law to give proper notice of the seizure of plaintiff’s

property); Nicodemus, 440 F.3d at 1235 (holding that federal-question jurisdiction was

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present because whether plaintiffs could recover on their state-law claims necessarily

turned on whether defendant railroad’s use of its right-of-way was improper under federal

law); see also Gilmore, --- F.3d ----, 2012 WL 3797736, at *12 (“Although plaintiffs

could lose their conversion claim without the court reaching the federal question, it seems

that they cannot win unless the court answers that question. Thus, plaintiffs’ ‘right to

relief necessarily depends on resolution of a substantial question of federal law.’”

(quoting Nicodemus, 440 F.3d at 1232)); Devon Energy, --- F.3d ----, 2012 WL 3590862,

at *11–12 (explicating the holdings of Grable & Sons and Nicodemus).

Here, by contrast, Mr. Firstenberg’s claim turns exclusively upon a question of

state law. Federal issues enter only by way of a defense and a response to a defense. See

Gully, 299 U.S. at 117 (“The most one can say is that a question of federal law is lurking

in the background, just as farther in the background there lurks a question of

constitutional law, the question of state power in our federal form of government. A

dispute so doubtful and conjectural, so far removed from plain necessity, is unavailing to

extinguish the jurisdiction of the states.”).

III

For the reasons stated, we conclude that Mr. Firstenberg’s state-court complaint

does not articulate a claim arising under federal law within the meaning of § 1331. We

therefore REVERSE the district court’s dismissal orders and resulting judgment and

REMAND the case to the district court, with instructions to VACATE its judgment and

remand the case to state court. We express no views on the merits of Mr. Firstenberg’s

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state-law claim or on the federal preemption defense raised by the City and AT&T.

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