United States Court of Appeals
For the First Circuit
No. 02-2424
KAREN B. METHENY, ANDREW I METHENY,
DANIEL J. MELANSON and AUDREY MELANSON,
Plaintiffs, Appellants,
RALPH LANG, NANCY LANG, LAWRENCE R. WEIL, MITZI G. WEIL,
JONATHAN L. HELD and ALYSSA L. HELD,
Plaintiffs,
v.
KATHERINE BECKER, CHRISTIAN HABERSAAT, BRUCE SABOT, PETER JOY,
DAVID KEMBEL, and KARIM RAAD, as they are members of the
Boxborough Zoning Board of Appeals, OMNIPOINT HOLDINGS, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
William J. Hunt, with whom Michael B. Newman and Clark, Hunt
& Embry were on brief, for appellants.
Kenneth Ira Spigle for appellees.
December 12, 2003
HOWARD, Circuit Judge. This is an appeal from the
district court's dismissal of a removed state court action in which
several residents of the town of Boxborough, Massachusetts, sought
to undo a decision of the Boxborough Zoning Board of Appeals. The
decision in question occurred in May 2002, when the Board settled
a federal lawsuit brought against it by Omnipoint Communications,
Inc., by issuing a variance permitting Omnipoint to construct a
wireless telecommunications tower on a parcel of land within the
town. The complaint underlying this lawsuit, filed against
Omnipoint and the individual Board members in the Massachusetts
Land Court and styled as an "appeal" of the Board's decision, set
forth five counts alleging abuses of discretion under Mass. Gen.
Laws ch. 40A, § 17 (2002), the Commonwealth statute permitting
judicial review of local zoning board actions. Collectively, the
counts alleged that the Board had abused its discretion and thus
violated Commonwealth law in failing to follow certain procedures
in connection with its decisionmaking, in failing to contest
Omnipoint's entitlement to the variance and permit under the
federal Telecommunications Act, and in acceding to the entry of a
federal judgment that it had violated the Act after initially and
properly denying Omnipoint's variance request. Omnipoint removed
the case to the district court, explaining in its notice of
removal:
The Land Court action is one over which [the
district court] has federal question jurisdiction under
-2-
28 U.S.C. § 1331, and which may be removed pursuant to 28
U.S.C. § 1441. It arises directly from, and constitutes
a collateral challenge to, the Judgment of [the district
court] in Civil Action No. 01-cv-12019-WGY, [the
previous] civil action brought [by Omnipoint against the
Town of Boxborough and the Boxborough Zoning Board of
Appeals] pursuant to 47 U.S.C. § 332. Further, the
resolution of the challenge to the Land Court case is
likely to involve the issuance of writs "necessary or
appropriate in aid of [the district court's]
jurisdiction" pursuant to 28 U.S.C. § 1651.
Thereafter, Omnipoint secured a merits dismissal under the doctrine
of res judicata.
Following oral argument, we asked for supplemental
briefing on whether the removal had been improper because of a lack
of subject matter jurisdiction. See, e.g., 28 U.S.C. § 1447(c);
Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996). Our concern was
driven by the fact that the most obvious bases for removal were
lacking. That the case might be regarded as an improper attack on
a prior federal judgment does not provide grounds for removal. See
Rivet v. Regions Bank, 522 U.S. 470, 474-77 (1998). The existence
of the consent decree in the prior judgment does not authorize
removal under the All Writs Act. See Sygenta Crop Prot., Inc. v.
Henson, 537 U.S. 28, 31-34 (2002). The parties are non-diverse.
The Telecommunications Act, which provides the ground rules for
assessing the lawfulness of the Board's actions and preempts state
laws imposing inconsistent requirements, see Brehmer v. Planning
Bd., 238 F.3d 117, 120-22 (1st Cir. 2001), contemplates the
application of at least some local procedures in zoning decisions
-3-
concerning wireless communications towers, see 47 U.S.C. §
332(c)(7)(A), and lacks a federal enforcement mechanism by which
plaintiffs may proceed with claims of the type asserted in this
action. Thus, there is little reason to believe that, in passing
the Act, Congress has so completely preempted plaintiffs' claims
that the artful pleading doctrine is called into play (at least on
complete preemption grounds -- see generally infra). See, e.g.,
Beneficial Nat'l Bank v. Anderson, 123 S. Ct. 2058, 2064 (2003);
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-66 (1987);
Avco Corp. v. Int'l Ass'n of Machinists & Aerospace Workers, 390
U.S. 557, 560 (1968); see also TCG N.Y., Inc. v. City of White
Plains, 305 F.3d 67, 76 (2d Cir.), cert. denied, 123 S. Ct. 1582
(2002); APT Pittsburgh Ltd. P'ship v. Penn Township, 196 F.3d 469,
478-79 (3d Cir. 1999). Finally, at least on its face, the
complaint sounded only in Commonwealth law.
We say "on its face" because, in its supplemental brief,
Omnipoint argues that two of plaintiffs' claims -- a claim alleging
that Omnipoint had failed to bring before the Board sufficient
evidence that there was a significant gap in its own coverage
within the geographical area in question (claim 1) and a claim that
Omnipoint also had failed to prove that no other carrier was
servicing the area (claim 2) -- actually raise questions about the
meaning of the Act and thus "arise under" federal law pursuant to
28 U.S.C. § 1331. See Almond v. Capital Props., Inc., 212 F.3d 20,
-4-
23-24 (1st Cir. 2000) (elaborating the "unclear" and
"controversial" doctrine sometimes called "federal ingredient"
jurisdiction and often associated with Smith v. Kansas City Title
& Trust Co., 255 U.S. 180, 201-02 (1921)); see also Penobscot
Nation v. Georgia-Pacific Corp., 254 F.3d 317, 321 (1st Cir. 2001)
(similar).1 This doctrine, which remains vibrant in this circuit
but "should be applied with caution," Almond, 212 F.3d at 23,
permits removal of a well pleaded claim sounding in state law which
"necessarily 'requires resolution of a substantial question of
federal law.'" Id. (quoting Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 13 (1983)). Omnipoint
contends that there is federal ingredient jurisdiction because
addressing the merits of the two claims described above necessarily
would entail determinations about the scope of the Act.
We think that this is too much of a stretch to support
removal. If we were to regard as a "substantial question of
federal law" within the meaning of Franchise Tax Board the question
implicated by plaintiffs' first claim -- whether Omnipoint's
evidentiary showing was sufficient to meet standards supplied by
established federal law -- it is difficult to see how any issue of
federal law implicated by a state law claim could fail to support
federal ingredient jurisdiction. And yet, as set forth above, our
1
In their supplemental brief, plaintiffs argued that removal
was improper because of an absence of subject matter jurisdiction.
-5-
precedent tells us that the doctrine is not to be applied
expansively. See id.
In our view, the only claim that even arguably brings a
"substantial" issue of federal law into play is the second one,
which alleges that Omnipoint failed to establish before the Board
that other carriers also had a coverage gap in the geographical
area in question. This claim appears to implicate the question
whether a provider with a coverage gap can obtain relief under the
Act's "effective prohibition" provision, see 47 U.S.C. §
332(c)(7)(B)(i)(II) (2000), where another carrier provides some
coverage in the same area.2 But removal on the basis of this claim
fails because it does not appear that resolution of the claim
"necessarily" requires resolution of the federal issue (which we
shall assume dubitante to be "substantial"). Under Massachusetts
law, "[t]he decision of the [B]oard cannot be disturbed unless it
is based on a legally untenable ground, or is unreasonable,
whimsical, capricious or arbitrary." Roberts v. Southwestern Bell
Mobile Systems, Inc., 709 N.E.2d 798, 804 (Mass. 1999) (citation
and internal quotation marks omitted). This deferential standard
calls into serious question the premise of plaintiffs' claim: that
2
This question was an open one at the time plaintiffs filed
their complaint, but we have since concluded that a provider is not
precluded from obtaining relief under the Act simply because some
other provider services the gap in question. See Second Generation
Properties, Inc. v. Town of Pelham, 313 F.3d 620, 632-35 (1st Cir.
2002).
-6-
a finding of an abuse of discretion under state law necessarily
would follow from a determination that the Board misapprehended the
requirements of the federal statute. Certainly, we can imagine the
state courts concluding that the issuance of the variance was
within the Board's discretion, especially in light of possible
uncertainties as to federal law.
In this case, it appears that Omnipoint may have removed
(and plaintiffs may have failed to contest removal) on the basis of
a dictum in our Brehmer decision that can be read to support the
view that, without more, the potentially preemptive effect of the
Act on state law claims seeking to undo a federal consent judgment
is sufficient to support removal. See 238 F.3d at 119.3 But the
dictum was immediately followed by a citation to City of Chicago v.
Int'l Coll. of Surgeons, 522 U.S. 156, 164 (1997) -- a case
involving federal ingredient jurisdiction. Thus, read in context,
the dictum appears to stand for a more case-specific proposition
than the parties may have inferred: namely, that resolution of the
Brehmer plaintiffs' multifarious state law claims, see 238 F.3d at
119 (summarizing those claims), necessarily entailed resolution of
the as-of-then unresolved and important question whether the Act
displaces inconsistent state law. In any event, Brehmer should not
3
The statement in question was unnecessary to the finding of
subject matter jurisdiction because the plaintiffs in Brehmer also
asserted federal statutory claims that rendered removal
unquestionably appropriate. See id.
-7-
be read to support removal whenever a state law claim might be
preempted under the Act or call into question a prior federal
judgment. As set forth above, settled Supreme Court precedent
precludes such a construction.
In closing, we note that Omnipoint's ability to have a
federal court rule on the preclusive effect of its prior federal
judgment is not necessarily limited to the (remote) possibility of
Supreme Court review of the state court's disposition. "[U]nder
the relitigation exception to the Anti-Injunction Act, 28 U.S.C. §
2283, a federal court may enjoin state-court proceedings 'where
necessary . . . to protect or effectuate its judgment.'" Rivet, 522
U.S. at 478 n.3 (quoting the statute). Of course, the plaintiffs
were not parties to the earlier judgment. Nevertheless, although
we do not wish to decide the matter without briefing and argument,
we see no obvious reason why abutting landowners who fail to
intervene in a federal action brought under the Act, cf. Brehmer,
238 F.3d at 119 n.2 & 122 (suggesting that interested abutters
might be able to intervene), should not be able to be joined as
parties under Fed. R. Civ. P. 19(a)(2).
For the reasons set forth above, we vacate the district
court's judgment and remand with instructions that the district
court remand this matter to state court. See 28 U.S.C. § 1447(c).
So ordered.
-8-