Patterson v. Omnipoint Communications, Inc. , 23 F. App'x 17 ( 2001 )

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1519
RANDALL PATTERSON, ET AL.,
Plaintiffs, Appellants,
v.
OMNIPOINT COMMUNICATIONS, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Rosenn,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Edward J. Collins for appellants.
Kenneth Ira Spigle for appellees Tower Ventures, Inc.,
Omnipoint Communications, Inc., and Omnipoint Communications MB
Operations, LLC.
Barbara J. Saint André and Kopelman and Paige, P.C. on brief
for appellees Planning Board of the Town of Scituate and its
individual members.
*Of the Third Circuit, sitting by designation.
December 12, 2001
Per Curiam. In this case, a number of residents of the
towns of Scituate and Cohasset, Massachusetts, have brought suit
in federal district court against Omnipoint Communications, Inc.
and related entities and the Scituate Planning Board. The aim
is to nullify a permit for a cellular telephone relay tower.
The permit was previously granted pursuant to a judicial
settlement reached in an action by Omnipoint against town
authorities under the Telecommunications Act of 1996 (TCA), 47
U.S.C. § 332 (1994 & Supp. II 1996).
The thrust of the present suit is that the permit
violates state law in various respects, both substantive and
procedural. (There are boilerplate references to the federal
Constitution in the complaint but the district court said that
they were undeveloped and appellants' brief in this court
similarly contains no developed constitutional argument.) The
district court dismissed the complaint on the ground that it
constituted an impermissible collateral attack on the prior
federal judgment mandating the permit. Patterson v. Omnipoint
Communications, Inc., 122 F. Supp. 2d 222, 226 (D. Mass. 2000).
Appellants' professed basis for jurisdiction in the
district court was solely the TCA, but the only seemingly
-2-
pertinent provision allows a suit against state or local
government action that is "inconsistent" with TCA provisions.
The district court thought that jurisdiction might yet be proper
insofar as the complaint, although addressed to state law
violations, itself implicated a substantial question of federal
law, presumably the preemptive authority of the TCA. Brehmer v.
Planning Bd. of Town of Wellfleet, 238 F.3d 117, 119 (1st Cir.
2001).
However this may be, the only relief sought was plainly
beyond the authority of the district court. A prior federal
decree commanded the issuance of the permit; a suit to enjoin
the local board from carrying through with the prior decree was
nothing more than a collateral attack on the decree. Brehmer
itself rejected just such an attack, 238 F.3d at 121, and
Brehmer is not only persuasive but is binding on the panel.
United States v. Lewko, 269 F.3d 64, 66 (1st Cir. 2001).
Appellants say that it is unfair for them to have no
opportunity to contest a decree to which they were not parties.
But assuming that they satisfied standing and intervention
requirements--issues on which we take no position--they were
free to seek to participate at the time that the original decree
was approved. And, in the unlikely event that nothing was known
-3-
of the proposal for the tower and ensuing litigation, a timely
motion to reopen the decree could have been made.
The district court's dismissal is affirmed.
-4-