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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