Transcript

CITY OF RANCHO PALOS VERDES, CALIFORNIA, ET AL., Petitioners v. MARK J. ABRAMS.

No. 03-1601

January 19, 2005, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

PROCEEDINGS

(10:03 a.m.)

JUSTICE STEVENS: We'll now hear argument in the City of Rancho Palos Verdes against Abrams.

Mr. Lamken.

ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONERS

JEFFREY A LAMKEN: Thank you, Justice Stevens.

May it please the Court.

This case concerns whether Congress, in enacting section 332(c)(7) of the Communications Act, intended to expose local governments and State and local officials to expansive section 1983 liability with the tens of thousands of wireless antenna zoning decisions they must make each year.

Entitled preservation of local zoning authority, section 332 provides for State and local agencies in the first instance to implement specific Federal substantive and procedural requirements, together with preserved State zoning laws, in passing on applications to build or modify wireless towers.

It then provides a highly distinctive, independent cause of action for accelerated judicial review of the decisions, including a short limitations period and mandatory expedition.

That tailored process is sufficiently comprehensive to evidence Congress' intent for enforcement to occur--

JUSTICE O'CONNOR: Well, Mr. Lamken, it's not as comprehensive as other schemes where the Court said, on that basis, we would not find a section 1983 cause of action, is it?

I mean, it's... it's more spare.

JEFFREY A LAMKEN: --It... it is unusual in its unique focus on private enforcement, but there was a reason for the focus on private enforcement.

In other provisions of the Communications Act, the Congress chose... for example, section 253, Congress chose to eliminate enforcement at... at the FCC level because it was concerned that State and local governments often wouldn't have enough... excuse me... local governments in particular--

JUSTICE O'CONNOR: Well, what... what--

JEFFREY A LAMKEN: --wouldn't be able to... I'm sorry.

JUSTICE O'CONNOR: --What would you think of a case where the plaintiff alleges that the antenna zoning was the... was caused by racial discrimination against the applicant?

Would there be a 1983 cause of action, do you suppose?

JEFFREY A LAMKEN: Yes.

That would still be available because the... the section 332(c)(7)(B)(v) only provides for a cause of action for violations of the Communications Act.

Violations of the Constitution continue to be enforceable directly under section 1983.

Section... section 332(c)(7)(B)(v) is comprehensive in the relevant sense in that for every violation of section 332(c)(7), for every person adversely aggrieved, it provides a mechanism for private judicial enforcement.

In addition--

JUSTICE O'CONNOR: Well, what about... it... it... section 332 speaks of an award of all appropriate relief.

What does that include?

Could it include punitive damages?

Could it include attorney's fees, do you think?

JEFFREY A LAMKEN: --In that respect, it is indistinguishable... for example, the statute that was at issue in Smith v. Robinson, and it doesn't specify the precise forms of relief available.

In our view in this case, appropriate relief would mean specific relief, the type of relief that is traditionally given on review of zoning decisions and on review of judicial review of agency action.

That's supported by a number of considerations.

I should point out, in the first instance, that in this case respondent never did seek damages, or punitive damages for that matter, under section 332(c)(7)(B)(v) itself.

But that's supported by a number of considerations.

First is the structure of the act, which presents it as a form of judicial review of agency action.

The act is structured much as you have... much as you would when a Federal agency enforces or implements Federal requirements and is subject to judicial review.

The only difference is that Congress swapped in, effectively, State and local agencies with the initial implementers in place of the Federal Government.

In that respect, it shares some of the characteristics of sections 251 and 252 of the Communications Act which are also implemented by local... by... excuse me... by State governments as opposed to the FCC.

JUSTICE GINSBURG: Mr.... Mr. Lamken, the argument has been made that 4 years before the telecommunications act we're talking about was adopted, Congress adopted the Cable TV Consumer Protection Act.

And in that act, it specifically limited the remedies to declaratory and injunctive relief.

Here we face silence.

Isn't that an indication that when Congress wants to limit relief to declaratory and injunctive, it will say so in the... in the measure?

JEFFREY A LAMKEN: Justice Ginsburg, that... that's an example where Congress, for a broad range of statutes that could be potentially used to enforce the Cable Act, chose to restrict the forms of relief available.

And it is an example, in the words of Sea Clammers, where Congress has made its intent explicit in the text of the statute.

Congress can also by implication limit the forms of... excuse me... limit the mechanism for relief that's available, and that's our position here, that Congress by providing--

JUSTICE SOUTER: What's the... what's the source of the implication?

JEFFREY A LAMKEN: --Pardon?

JUSTICE SOUTER: You say by implication.

JEFFREY A LAMKEN: The implication... Congress has provided a specific mechanism for judicial relief here, section 332(c)(7)(B)(v) itself, and that is a highly adapted mechanism which includes unique characteristics such as a very short limitations period.

JUSTICE SOUTER: So... so the... the implication, I... I guess, is that unless it specifically provides for damages, it implicitly does not.

JEFFREY A LAMKEN: I'm sorry.

In terms of Congress making damages available under 332(c)(7)(B)(v), our view of the damage... then it might... damages are only one of the differences we think that exists here.

But our view is supported by a number of considerations, in addition to the structure of the statute.

For example, appropriate relief is often... is the traditional form of relief available.

In this context traditional relief was always specific relief.

Congress also included a specific savings clause that extends not merely to Federal statutes, but prohibits the impairment--

JUSTICE SCALIA: Excuse me.

Where... where are you getting the term, appropriate relief, from?

JEFFREY A LAMKEN: --This... that comes from this Court's decision in Franklin, that where Congress doesn't specifically identify the specific forms of relief available--

JUSTICE SCALIA: All right.

But that's... that's not in the... that's not in the text of this statute, is it?

JEFFREY A LAMKEN: --No, it isn't.

It is an inference the Court draws from silence.

When the Court... when Congress provides an express cause of action and does not identify the specific forms of relief available, the Court will infer that Congress intended to provide all appropriate relief.

But the term, appropriate relief, is that relief which Congress would have intended, and when the Court is determining that, it takes a look at what the traditional forms of relief are and it will look at things such as the savings clause in 601(c), which expressly says that the statute should not be read, unless it expressly provides, to supersede, impair, or otherwise modify State and local law, as well as Federal law.

And in order to put damages into the statute, if it doesn't provide damages expressly, one would have to impair myriad municipal immunity laws that otherwise protect municipalities and State and local officers implementing zoning requirements from liability.

Finally, the FCC has--

JUSTICE SCALIA: And... and 1983 is not subject to that limitation.

JEFFREY A LAMKEN: --Well, 1983 is expressly preemptive under this Court's decisions, and it is... it would preempt the State laws by its own force.

But we believe that that also supports Congress' decision not to provide... or supports the conclusion that Congress did not intend to provide section 1983 relief here because the effect of making the Communications Act enforceable under section 1983 would be to expand the categories of claims for which... that... those immunities are unavailable, and it would thereby impair those immunities.

JUSTICE SCALIA: But are they only immune from damages action or are they immune from suit?

JEFFREY A LAMKEN: No.

They're generally immunities... immune from damages actions, not from suits.

JUSTICE SCALIA: So, I mean, that proves too much because they... the statute obviously intends to eliminate that immunity.

The immunity from suit is... is clearly--

JEFFREY A LAMKEN: Oh, I think... I think you may have misunderstood.

The immunity is not from suit.

It's an immunity from damages and the impairment would be the immunity from damages.

Section 332 is not designed to impair the municipal immunity statutes, and they are not immunities from suit.

They are generally from damage liability.

The officers are subject to suit because these are subject--

JUSTICE SCALIA: --Well, it allows suit against either municipalities or States, State or local governments.

Right?

JEFFREY A LAMKEN: --Yes.

JUSTICE SCALIA: And the States have immunity not just from damages but from suit.

JEFFREY A LAMKEN: As a constitutional matter, they have an immunity from suit, but--

JUSTICE SCALIA: Unless they have chosen to waive it, which--

JEFFREY A LAMKEN: --Right.

JUSTICE SCALIA: --one must assume in this area they haven't.

JEFFREY A LAMKEN: Right.

JUSTICE SCALIA: So you have to regard this provision as intentionally overriding some provisions of State law in... inasmuch as they apply to... to immunity.

JEFFREY A LAMKEN: Well, first of all, I don't think it would be read to... to override the State's constitutional immunity to suit.

JUSTICE SCALIA: No.

That's--

JEFFREY A LAMKEN: But it would be read to... it would be read to override immunities to suit that exist under State law because otherwise it couldn't be affected.

JUSTICE SCALIA: --In for a penny, in for a pound.

JEFFREY A LAMKEN: Right.

JUSTICE SCALIA: If they've... if they've waived--

JEFFREY A LAMKEN: But I'm not--

JUSTICE SCALIA: --If... if you acknowledge that it was intended to affect their immunity from suit, why... why would we suspect that it was not intended to affect their immunity from damages?

JEFFREY A LAMKEN: --Well, because it would be... it would be a provision with no effect whatsoever if it didn't override immunities to suit.

But I'm not sure there are provisions that are providing for... I mean, that there are myriad damages immunity laws that provide municipalities absolute immunity from suit.

It's fairly common, at least under California and other State law, for municipalities to be subject to suit for review of their... of the actions that they make.

And that is the typical fashion that this... this statute simply incorporated that typical fashion of providing judicial review of agency action.

Another consideration that supports the view that section 1983 has been displaced is that the act provides an entire process for the implementation of the Federal statutes.

It establishes Federal substantive requirements that identifies the agencies to implement them.

It provides Federal procedural guarantees, APA-like guarantees, like the requirement of substantial evidence, like the requirement of a written decision, like the requirement of a decision with a reasonable period of time.

It then follows up with a mechanism, an adapted mechanism for judicial review.

In that sense, it is very much like the statute at issue in Smith v. Robinson.

That elaborate process is particularly significant given the pattern of the Communications Act as a whole.

The Communications Act repeatedly matches specific regulatory requirements such as, for example, the common carrier requirements in 202 and 203, with corresponding mechanisms for private enforcement, such as an action for suit... I mean, an action for damages in court or an enforcement action in the commission in sections 206 and 207.

JUSTICE SCALIA: Does this action have to be brought in Federal court?

It says any court of competent jurisdiction.

Could--

JEFFREY A LAMKEN: Yes.

The action can be brought in State court and often is.

There are about 50 reported decisions that we have found where the suit has been brought in State court.

I haven't seen a particular pattern between the choice, but Congress gave the option.

JUSTICE KENNEDY: Would a State court be free to award damages or would that be preempted under the view you take of the statute?

JEFFREY A LAMKEN: The State... because there's an express preservation of State law in this context, I think that State... States would be free to award damages under their own laws.

They wouldn't... whatever relief is available under the Federal statute would be available under the Federal statute, and State courts wouldn't be free to second-guess Congress' judgment as to what relief should be provided under Federal statute.

JUSTICE KENNEDY: If the State court allowed damages... if... if the State system allowed... State law allowed damages, would the Federal court, in an action under this section, be allowed to award damages under that... under the State statute?

JEFFREY A LAMKEN: Your Honor, I think since the... the provision, the savings clause, says that the statute should not be construed to impair State law... and there are so many municipal immunity statutes and you would only have one construction of the statute... I believe that the construction would be an across-the-boards construction, that this act does not provide damages and you would not vary from State to State.

JUSTICE STEVENS: What if the State law authorized the recovery of attorney's fees?

Would they be recoverable?

JEFFREY A LAMKEN: Pardon?

JUSTICE STEVENS: What if the State law authorized the recovery of attorney's fees?

JEFFREY A LAMKEN: Well--

JUSTICE STEVENS: What would you do then?

JEFFREY A LAMKEN: --If the State law provides for recovery of attorney's fees for State violations, then that would control for State violations.

For violations of Federal law, the... the remedies that Congress chose to provide would control and the States would not be permitted to second-guess the... the remedies--

JUSTICE BREYER: I'm not sure why that would be if you, in fact, see the statute as trying to impose an APA-like structure, saying to the States, you decide the substance, we'll give you minimum elements of form, which helps your position.

Then if the minimum elements of form are not specifically stated in the statute, there's no reason to interfere with the States.

Let them do what they want.

Only those minimum elements are what you can't do.

That works perfectly for you.

JEFFREY A LAMKEN: --Justice Breyer--

JUSTICE BREYER: It's strongly supported in the history.

It may lose your client the money.

I don't know.

JEFFREY A LAMKEN: --Well, in fact, California provides a municipal immunity for permitting decisions, and so my client--

JUSTICE BREYER: So then you're only--

JEFFREY A LAMKEN: --would be fine with your position.

But that is a potential inference.

My... the normal view would be that where Congress provides a... a statute, one would normally presume that Congress intended a particular set of remedies to accompany it.

You could say that the silence is meant to... meant to reflect the fact that Congress knew that these would be enforced in State courts, as well as Federal, and it would allow State courts--

JUSTICE BREYER: --Congress didn't care.

JEFFREY A LAMKEN: --to use whatever--

JUSTICE BREYER: Congress wanted to substitute a Federal judgment for the judgment of the States where it said so.

And the reason you know that is because that is what is consistent with the purpose of the act and other things are either neutral or negative.

Don't interfere with the State unless you have to.

JEFFREY A LAMKEN: --That is one of our principal contentions, Justice Breyer, which is--

JUSTICE GINSBURG: And what, Mr. Lamken, would be the normal procedure in the State?

You make an application for a permit to a zoning board.

What is the standard operating procedure under State law?

Suppose we don't have any telecommunications act in the picture.

JEFFREY A LAMKEN: --The normal procedure is either under a uniform State law or California law.

If you have a... an entity which is... excuse me.

If you have either a planning commission or sometimes there's another entity that does the initial review and makes a determination whether to grant the permit.

It is then appealable either to a zoning board of adjustment... that's the... the model act... or in California, States... localities have the option of having the appeal go to the local legislature.

That appeal is then reviewed... is then determined.

And finally, once you've gone through that process, under California law it's generally reviewable by a writ of mandate, although other... other States provide review by writ of certiorari, by mandamus, or by various other procedures, almost always subject to a short limitations period, almost always short... requiring finality, a final decision, exhaustion through the State process.

JUSTICE GINSBURG: And the remedies being injunctive and declaratory.

JEFFREY A LAMKEN: A... a form of specific relief.

Generally they have the authority to effectively go in and revise the decision below, but the remedies ordinarily do not include monetary or compensatory relief I should say.

JUSTICE GINSBURG: Are you saying that it's parallel to what APA review of an agency decision would be?

JEFFREY A LAMKEN: It's very much like that.

The remand rule that this Court normally requires in the APA context is not so strictly observed in the context of... of review of... judicial review of zoning decisions, but it is very much like APA review.

That is what prevails.

JUSTICE KENNEDY: It... it seems to me that the 30-day provision is inconsistent with the award of damages, but after I say that, I can't tell you why.

[Laughter]

JEFFREY A LAMKEN: Well, actually this Court's decision in Burnett v. Grattan actually tells you why, and that is that 30-day provisions, which are typical for on-the-record review of decisions below, are often insufficient to allow somebody to develop a whole new record such as their proof of damages, to make important decisions if they're going to have, for example, a jury trial, or to prepare for discovery.

And that's why 30-day provisions are not entirely uncommon in the area of judicial review of agency action, but they're wholly unprecedented, for the most part that I know of, in the area of tort-like remedies like section 1983.

If I... if there are no further questions, I would like to reserve the remainder of my time for rebuttal.

JUSTICE STEVENS: Yes, you may.

Mr. Feldman.

ORAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF [*17] OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

JAMES A FELDMAN: Justice Stevens, and may it please the Court.

Where Congress creates a special cause of action for... for a violation of a Federal law that necessarily carries with it its own features and incidents, Congress' decisions about the appropriate mechanisms for dealing with that violation of Federal law should not be frustrated or overridden by allowing a 1983 action in addition.

In this case, section 332(c)(7)(B)(v), which creates a cause of action for violation of the specific standards in (i) through (iv) is an independent, standalone cause of action.

If 1983 didn't exist, 332(c)(7)(B)(v) would, undoubtedly, still provide plaintiffs with a mechanism to get into court and attain redress for the legal wrongs that they claim.

Where Congress has taken that step and has thought about what the appropriate remedy should be for a violation of a particular Federal statute and has created a judicial remedy, then it would only frustrate--

JUSTICE O'CONNOR: But it... the statute, though, is silent on the question of damages or attorney's fees, isn't it?

JAMES A FELDMAN: --It is.

It doesn't say anything expressly about either of those things, but I think it has long been--

JUSTICE O'CONNOR: Can we infer all appropriate relief?

Do we?

JAMES A FELDMAN: --As a matter of damages, I think all appropriate relief would be the standard.

But as a matter of attorney's fees, I think is a good example of why there shouldn't be a 1983 action here because the law is 100 percent clear, from this Court's decision in Alyeska and other cases, that where Congress hasn't provided for fee-shifting, there simply is no fee-shifting authorized.

That's what they intended.

JUSTICE SCALIA: Attorney's fees are never appropriate, in other words.

JAMES A FELDMAN: Are never appropriate unless Congress specifically provides for them.

JUSTICE STEVENS: But it has provided for them for a 1983 action, and if it's a 1983 action, it takes care of it.

JAMES A FELDMAN: That's right.

JUSTICE STEVENS: And this is kind of circular.

JAMES A FELDMAN: I don't think it's circular because I think when Congress created the specific cause of action here in (B)(v), it didn't provide for attorney's fees and therefore intended that attorney's fees not be provided.

If respondent's view in this case were accepted, the... the presumption would be exactly flipped, and Congress would have had--

JUSTICE GINSBURG: Mr. Feldman--

JUSTICE KENNEDY: Suppose Congress said specifically 1983 applies.

That's all it says.

Would that carry with it attorney's fees in your view?

JAMES A FELDMAN: --Yes, I... yes, I think it... I think it would.

The question here, though, is where Congress has thought about what kind of remedy it wants for violation of a Federal statute and created a judicial cause of action for every wrong that's... that... that can exist under that statute, then the incidents and features of that cause of action should govern, not the incidents and features of 1983 which almost inevitably and in this case are different.

And attorney's fees is just the best example of that.

If... under respondent's view... when Congress was fashioning this statute, it certainly was aware of this Court's decisions that have repeatedly said that attorney's fees are not available unless they're expressly provided for.

And indeed, elsewhere in the Communications Act--

JUSTICE KENNEDY: Well, I take... you... you take the position that 1983 doesn't apply at all.

It's not just attorney's fees.

It's damages.

JAMES A FELDMAN: --That's right.

But it's just an illustration.

There's other differences between the provision here and 1983, but I think the basic point is that where Congress has given thought to the remedy for a particular violation... type of violation of Federal law and has provided for a judicial cause of action, with whatever features and incidents it... it wants, 1983 shouldn't be allowed in.

It should be assumed that Congress didn't want to have its decisions frustrated by also allowing a 1983 action.

JUSTICE SCALIA: What about damages?

JUSTICE O'CONNOR: Do you... do you think that any other provisions of the Communications Act are enforceable under 1983?

I mean, we're talking about 332, but it's a big, complicated act.

Are any of the other provisions enforceable?

JAMES A FELDMAN: I think... I think the same rule would apply to any of the provisions where Congress has specifically provided for a cause of action for the same reason, otherwise Congress when... here, for example, just to return to attorney's fees for a second.

When Congress was framing this legislation, they knew that they weren't giving attorney's fees and this 332(c)(7)(B)(v) would be construed not to give attorney's fees, but not--

JUSTICE SCALIA: Well, this is really a more general proposition you're urging upon us then, that whenever Congress creates a cause of action that is... what... in any respect more limited than section 1983, the background action of section 1983 is not available.

JAMES A FELDMAN: --That... I... I think that's correct.

JUSTICE BREYER: No.

How could that be?

Wouldn't it depend on whether... when you look at the particular statute, the particular set of remedies that Congress has included in that statute could be absolutely independent of 1983 or dependent upon 1983 or leaning in favor or leaning against.

It would depend on the particular statute.

Why in general?

JAMES A FELDMAN: I think in... I think the rule would be in general because, first of all, it's not just remedies.

There's other incidents of a cause of action such as statute of limitations, the provision here for expedition, and other things.

And really when Congress has given thought to what remedy it wants for a violation here of (i) through (iv), for a violation elsewhere in the Communications Act of other Federal standards, it shouldn't be assumed that they all... that... to allow a 1983 action would just frustrate Congress' intent in fashioning that particular remedy.

JUSTICE GINSBURG: --Then how would you ever have a statute that... 1983 provides for relief when there's a violation of Federal law, statutory or constitutional.

One of briefs in this very case says that your broad reading means that you were doing away with statute as a basis for 1983.

JAMES A FELDMAN: I... I think that that's completely wrong.

When Congress has created... has recognized a right, as this Court has found is essential for a 1983 action, and it hasn't done anything about providing a remedy for that right, hasn't created a cause of action in court in particular, then that's the function of 1983, is to serve... it provides a cause of action for people who suffer a violation of that wrong, a statutory violation.

But where Congress has given thought to what kind of relief it wanted and it said we want a cause of action with these such-and-such incidents, no attorney's fees, 30-day statute of limitations, expedition, whatever the other ones are here, then it would just frustrate Congress' intent to say, oh, and also you get a 1983 action to undo all of the things that Congress provided for.

JUSTICE SCALIA: Well, there... there are two situations.

I mean, one can supplement without frustrating.

I mean, you... you could say that in, you know... in some respects the 1983 will contradict the action that was provided, but one can conceive of a provided action that... that grants relief which 1983 would not grant.

JAMES A FELDMAN: That's right.

And... and I... whatever... I guess the general point would be whatever remedial decisions Congress made, those should be respected, but I would add in this case it's not just... it's a question of attorney's fees, which they would have had to... Congress would have had to do something very unusual here, which is particularly put in this statute no... there shall be no fee-shifting because otherwise you can always go to 1983 and get it.

In fact, even if they had done that in 332(c)(7)(B)(v), respondents would still argue, well, we still have our 1983 action.

JUSTICE SCALIA: What... what about damages?

Do... do you take any position on whether the Communications Act provision enables damages to be collected?

JAMES A FELDMAN: We don't have a position on whether it does.

I think there's arguments both ways.

I would point out--

JUSTICE SCALIA: You think it's unnecessary to decide this case.

JAMES A FELDMAN: --I think it is unnecessary, and in fact, I think it shows a problem with... a reason why our view, which is if Congress creates a cause of action, that should be respected... why that should be respected.

Under other views, you have to look at the 1983 action and figure out all of its incidents.

You have to look at the 332 action and figure out all of its incidents in the abstract as here, not where... in connection with a particular claim for damages, and then see whether they're consistent with each other.

I think the much better rule would be to say where Congress has created a specific cause of action, that's what it wanted, and whatever you get under that, you get.

Whatever you don't get under that, you don't get.

But 1983 shouldn't be used to... to frustrate Congress' intent and give you things that that cause of action wouldn't to give you a longer statute of limitations, which would be, I think, the case here, to give you... eliminate the provision for mandatory expedition, to have any differences in damages.

Another way to put it would be under the Court's decision in Franklin, this statute gives you any appropriate relief.

All that 1983 could do here... it maybe gives you the same thing which, as far as that goes, it doesn't matter.

But all it could do otherwise would be give you inappropriate relief, i.e., relief that Congress didn't want.

And instead of construing the two statutes in that way, they should be construed harmoniously and in accord with this Court's decisions which have set forth the line of cases where you have a right to get into court in Wilder... I'm sorry... in... in Sea Clammers and Smith against Robinson and said there we want to take Congress' remedy, however simple or complex it is.

It gives you a complete right to get into court and gives you whatever it gives you.

And that should govern.

And then the other line of cases, which is Wilder where... and... where it says... and the Wright against Roanoke where Congress didn't give you a right to get to court... get into court.

In those cases, that's the function of 1983.

The same thing would be true in... in a number of other this Court's cases that have recognized you have a 1983 action when Congress gave you a right and didn't think at all about the remedy because that's the function that 1983 was supposed to serve.

If there's no further questions.

JUSTICE STEVENS: Thank you, Mr. Feldman.

Mr. Waxman.

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE RESPONDENT

SETH P WAXMAN: Mr. Justice Stevens, and may it please the Court.

In... by its clear text, section 1983 promises redress for the depravation of any Federal right in any, quote, proper proceeding.

And that expansive language, this Court has recognized, dictates a heavy presumption that its remedies apply to all violations of Federal rights, a presumption which this Court has said is rebutted only in the, quote, exceptional case in which the statute that creates the right is accompanied by an enforcement scheme that is, quote, incompatible with or inconsistent with 1983's remedies.

That's--

JUSTICE SOUTER: Mr. Waxman.

SETH P WAXMAN: --the background principle.

JUSTICE SOUTER: Mr. Waxman, it seems to me that the... the best argument we've heard about incompatibility is the one... or at least I think the best... is the one that Mr. Lamken touched on at the tail end of his argument, and that is, he said there's... there's a 30-day provision in there, which in effect says Congress wants this litigation conducted fast and over with fast.

And that is incompatible with a damage action because if you get into a damage action, you are going to get into the panoply of... of damages litigation, including depositions, and... and the one thing you can guarantee is that it is not going to be over expeditiously.

What is your argument?

What is your response to that incompatibility argument?

SETH P WAXMAN: Well, I think that the way this Court has interpreted incompatibility before... in the two instances in 25 years since Maine v. Thiboutot was decided, the only instances in which this Court has found incompatibility has been where use of 1983 would create an end run around limitations in the statute.

That is, in the... in Sea Clammers and in Smith v. Robinson, you had statutes that forestalled an individual's access to court via an administrative regime and then expressly limited the judicial remedies that would be available once they got there by requiring, for example, only injunctive relief.

JUSTICE BREYER: Well, the other word is inconsistent, and is it... sorry.

Were you... is it inconsistent if Congress didn't want it?

And if that's insufficient to be inconsistent, then here, as I look at the statute, to get out my thinking, I think that it sounds like an administrative law statute.

If I saw the maintenance and cure words, I'd think it was an admiralty statute.

SETH P WAXMAN: Okay.

I--

JUSTICE BREYER: But I see an administrative law statute.

It sounds like that's the system they're imposing and therefore a system that is not consistent with the administrative law system fails and 1983 seems to fail.

SETH P WAXMAN: --Okay.

Now I have two points.

I... I don't want to forget these.

I have to deal with the... the question of whether a 30-day requirement is inconsistent and whether damages would be inconsistent with what... with what my colleagues posit as an APA-like administrative review model.

A 30-day requirement is simply a reflection of Congress'... Congress confirming expressly that somebody who... who is aggrieved under the rights provided to him under 332(c)(7) and wants any judicial remedy, whether it's from 1983 or otherwise, has to go to court promptly.

It's precisely what 1983, this Court said in Patsy and Felder, guarantees and requires.

It does not require--

JUSTICE SOUTER: But it also requires expeditiousness on the part of the court.

SETH P WAXMAN: --It requires that the court proceed expeditiously and courts can proceed expeditiously where damages are sought or are not sought.

One of the interesting things about damages--

JUSTICE SOUTER: But do you... do you agree with this much, that if... if damages, in fact, are going to be allowed, what is going to count as expeditious is going to be a lot slower than what is going to count as expeditious if damages are not allowed.

SETH P WAXMAN: --I don't think that's true.

In fact, I think this case is a pretty good example.

The court separated it... I mean, acting under a requirement of expedition at the request of the city.

This... the court didn't even begin to address this case until 18 months after it had been filed.

But what it said was--

JUSTICE SOUTER: Okay.

And... and that--

SETH P WAXMAN: --the first issue--

JUSTICE SOUTER: --that was a violation of the statute, wasn't it?

SETH P WAXMAN: --Well, it first issued an order saying, okay, I've construed the statute and I've determined that the statute is violated.

Now we will have a separate proceeding.

Then the city will conduct itself accordingly.

Now we'll have a separate proceeding in order to determine whether damages or attorney's fees are available.

And that is available in any of these cases.

What--

JUSTICE SOUTER: So they turned the damage issue basically just into a separate remedial hearing at the end of the case.

SETH P WAXMAN: --It could or could not be, and there may... may be many cases when damages aren't appropriate but--

JUSTICE GINSBURG: I thought that was just to decide in... in the... in the court of first instance... that tail end was not to decide whether in this specific case damages or attorney's fees were due.

But the district court was deciding a question of law, that is, whether in this kind of review proceeding anyone could have damages, anyone could have attorney's fees.

SETH P WAXMAN: --What he said, Justice Ginsburg, was we'll deal with what other remedies, if any, are available and to what extent in a separate proceeding.

As it turns out, he concluded in an--

JUSTICE GINSBURG: But was not making a rule for this case only.

He was making a ruling of law.

SETH P WAXMAN: --For sure.

He said that I don't think you're entitled to this because I think that the statute doesn't allow it.

And therefore, he didn't get to this question.

But the point about damages... I think there are two points that are very important they not be obscured.

First of all, the Government... the fact that the Government and the petitioner can't agree on whether the statute itself provides damages relief under the principle of Bell v. Hood and Franklin v. Gwinnett County certainly shows that Congress did not speak expressly on this subject.

JUSTICE SCALIA: They... they don't necessarily disagree.

The Government just says the... the issue doesn't have to be reached in this case.

SETH P WAXMAN: Well, I think... I think that... what the Government says in its papers is they may well be available and what Mr. Feldman... I don't want to misquote him, but he said that under Franklin... he agreed, I think, with what Judge Posner wrote for the Seventh Circuit, which is where no remedies... where no specific remedies are specified... and that's the case here... you apply a rule of judicial implication, announced in Bell v. Hood and applied to an implied right of action in Franklin, to apply that all appropriate relief is available.

And damages are the paradigm.

JUSTICE SCALIA: Mr. Waxman.

SETH P WAXMAN: And the irony here--

JUSTICE SCALIA: Mr. Waxman, how do you... how do you get a reading of the 30-day limitation, which is applicable to the cause of action under the Communications Act, sucked into the cause of action under section 1983?

I mean, if the suit is under 1983, it's under 1983.

There's no 30-day limit there.

SETH P WAXMAN: --I have... I have two different ways to get to that.

First of all, section 1983, by its terms, provides redress in any appropriate cause of action.

It also supplies a cause of action where no other cause of action is available, but by its express terms, it doesn't exclusively limit its remedies to causes of action that are brought under 1983.

JUSTICE SCALIA: No, it doesn't.

SETH P WAXMAN: But more broadly--

JUSTICE SCALIA: But it doesn't require you to... to establish a cause of action under some other statute either.

SETH P WAXMAN: --That's right.

It provides a--

JUSTICE SCALIA: It does not at all.

It's... it's self-contained.

And do you know any case where we have read into, or indeed, it's even been urged upon us to read into, section 1983 limitations that somehow come from the statute that was violated and which forms the basis for the 1983 action?

SETH P WAXMAN: --Well, I don't, but I do know that this Court... first of all, Congress has now enacted section 1658 which provides a... a 4-year Federal default statute of limitations, where... where a statute like 1983 doesn't provide it, but includes an... an introduction that says, except where otherwise provided by Federal law.

And there's certainly nothing in that language that says when you're looking at whether a statute of limitations is otherwise provided by Federal law, you look to the very statute that creates the substantive right that 1983 is enforcing.

And even before that, when your... your decision in Wilson v. Garcia made the point that when you try to figure out what statute of limitations applies to a freestanding 1983 action, there are... there is a tripartite rule of construction that section 1988 requires you to engage in.

And the first part is to see whether there is any, quote, suitable Federal statute of limitations.

Now, in constitutional cases, like the one that was at issue in Wilson v. Garcia or under the Social Security Act, which is what was addressed in Maine v. Thiboutot, there were no express causes of action, much less any express statute of limitations.

And so this Court said you then go to the second rule, which is what's the most appropriate State limitations, as 1988 requires.

But the anomaly of the argument here is we have a background principle that 1983 is available and there is a heavy presumption that it will be available unless it is explicitly incompatible or inconsistent with--

JUSTICE BREYER: Well, that's--

SETH P WAXMAN: --and--

JUSTICE BREYER: --that's why I'm approaching it differently, and I... I want to get your view on it.

I'm taking the word inconsistent and I'm using that as a guide back into the purpose of the statute.

And once I do that, I find Congress here anxious, I think, to engage in what I'd call cooperative federalism.

They could have run the whole show, but they said we don't want the FCC.

We want each city and town to do what they want, subject to a few minimal procedural requirements.

If that's right, that means all these damages questions are open.

All kinds of things are open, but... and we'll decide them in a variety of ways, maybe deferring to the State, but one thing is true: 1983 doesn't apply because that is a different set of remedies.

SETH P WAXMAN: --Justice Breyer, this is not the APA model.

This is not a model of administrative review for a number of reasons.

Number one, it is a background... there... there... it is established, for purposes of this case, that this statute creates individual Federal rights and those rights were violated.

And the background rule is uniformly... and this Court has... has... in Owens v. City of Indianapolis and many other cases has reinforced the principle that damages are available and 1983 is available where Federal rights are violated by municipalities, whether it's under the Takings Clause or the Due Process Clause or the Equal Protection Clause or in statutory cases.

What is more--

JUSTICE GINSBURG: Mr. Waxman... Mr. Waxman, one of these provisions gives you an option to go to the FCC, the one having to do with emissions.

Now, if you sought review from the local decision to the FCC, you petition for FCC relief, would the FCC have authority to give you attorney's fees?

SETH P WAXMAN: --The FCC has said that it does not if you do that.

In... in 2000, when the FCC last reported, one person had chosen to go that route rather than go to Federal court.

It--

JUSTICE GINSBURG: Well, isn't that an incongruity that Congress would say you have your choice?

Complainant, you can go to the Federal agency, the FCC, or you can go to court.

SETH P WAXMAN: --You can't go to the... excuse me.

I didn't--

JUSTICE GINSBURG: So if... if you have that choice, when you're dealing with the radio emissions, to go the... why would any litigant ever do that?

Why would any attorney ever do that if you don't get fees at the FCC and you do get fees in court?

Wouldn't the presumption be that it would work the same way whether you go to the agency, Federal agency, or Federal or State court, that you're in the same situation as respect to fees?

SETH P WAXMAN: --The... the FCC alternative for a declaration by the FCC applies to only one of the five rights that are provided here, and even if it applied to all of them, I don't think you could possibly infer that--

JUSTICE GINSBURG: Well, let's take the one, that... that one.

Are you saying no attorney's fees there because you couldn't get them at the FCC, therefore you shouldn't get them in court?

SETH P WAXMAN: --Absolutely not.

If... if there were an instance in which a local zoning official said, you know, I know I'm not supposed to take radio frequencies emissions into account, but I'm going to, it's denied, I would have the right either to go to the FCC and say, tell them no, or to file an action under 332 and [/] or 1983 and say that violates my rights.

And actually your example--

JUSTICE SOUTER: But isn't--

SETH P WAXMAN: --If I just may finish.

Your example, I think... the example of this particular provision points out that what... the balance of what I was going to explain to Justice Breyer, which is that another reason why this isn't the APA model is that this statute includes in little (i) and little (ii) substantive provisions, not just procedural provisions.

You can't discriminate, to give Justice O'Connor's first example, among providers.

The... that was a complaint in this case.

There is de novo review, it is clear, on those claims.

It's not administrative APA review in any respect.

And in fact, the district judge in this very case, Judge Wilson, says it looks like, in fact, you were discriminated against, but I don't need to reach that because it's clear that there was no substantial evidence.

JUSTICE SCALIA: They... they didn't provide for the normal administrative review because they were quite aware that under the State zoning systems, there would always be State administrative review before the issue even comes up.

SETH P WAXMAN: And this--

JUSTICE SCALIA: And so what this provides is what kind of judicial review there will be after the anticipated administrative review before the zoning board and whatever appeal from the zoning board exists.

SETH P WAXMAN: --I... I have to respectfully disagree.

This Court, in... in Williamson County and Darby and many other cases, has distinguished carefully between final... final action and exhaustion of administrative review or judicial review.

And all this statute requires is that if you are aggrieved by an action or inaction of a State or local government or an instrumentality thereof--

JUSTICE SCALIA: Final.

Final action or failure to act is what--

SETH P WAXMAN: --That's correct.

JUSTICE SCALIA: --Final action or failure to.

SETH P WAXMAN: And final action, this Court has explained, does not import into it exhaustion of either State administrative or judicial remedies.

What it means is that once you have been injured, it's a... it's a ripeness requirement that's familiar under--

JUSTICE SCALIA: You haven't been injured until you've exhausted your--

SETH P WAXMAN: --That is--

JUSTICE SCALIA: --You... you really think that when there is a State provision available for review of the zoning board, you can commence an action under 1983 without even going through the administrative appeals?

SETH P WAXMAN: --I am entirely certain of that, and in fact, the... the local ordinance... I mean, the question of what is final agency action is surely a Federal question, but--

JUSTICE SCALIA: This is really respecting the States, which is what the... the purpose of this... of this whole provision was.

SETH P WAXMAN: --Justice Scalia, when Congress addressed this problem in 1996, as the Government points out in the very first page of its brief and as the legislative history reflects, it was confronting a situation in which intransigent, entrenched zoning authorities were acting arbitrarily to frustrate the creation of a national wireless network.

And it was so concerned about this that the House actually passed a provision that removed this paradigmatic local authority to the FCC.

The FCC was--

JUSTICE KENNEDY: Which would be more burdensome?

That enactment or subjecting municipalities nationwide to damages?

Which would be more intrusive and burdensome on federalism--

SETH P WAXMAN: --I think--

JUSTICE KENNEDY: --and the abilities of local governments to function?

SETH P WAXMAN: --Oh, I think the former, for sure.

I mean, the notion that zoning decisions, siting decisions would be removed entirely from localities is unbelievably intrusive.

And what happened in the conference committee was a compromise was reached whereby Congress' objective was going to be achieved by creating... by leaving it, in the first instance, Justice Kennedy, to local--

JUSTICE KENNEDY: Well, I'm... I'm not so sure because you're arguing that even the smallest municipality can be liable for hundreds of thousands of dollars of attorney's fees.

SETH P WAXMAN: --Well--

JUSTICE KENNEDY: And I--

SETH P WAXMAN: --let me just say this, with respect to the--

JUSTICE KENNEDY: --Plus other... plus other damages.

SETH P WAXMAN: --I think this case, Justice Kennedy... I have three things to say about this.

This case is every bit as... as paradigmatic as the parade of horribles that they suggest.

And here's my proof.

It has been since 1997 that courts have been ruling that 1983 and damages are available under this statute.

There is no evidence in any of the briefs on the other side or any of their amici that there has either been a flood of litigation or inappropriately large awards.

And if that happened, Congress would do... would be attentive to it in the way that Justice Ginsburg pointed out when the local cable authorities came to... came to the very same committees 4 years before and said, we're being hit... there's an express right of action in 555 of the... the Communications Act.

We're being hit with very large 1983 awards.

Please do something about it.

And the very same committees 4 years before enacted a provision that said you may get only injunctive and declaratory relief, thereby creating an incompatibility with 1983, as the legislative history expressly provides.

JUSTICE SCALIA: Well, cable... cable media companies may... may have Congress' ear more readily than... than... you know, than the municipality of whatever this is or any--

SETH P WAXMAN: State and... than State and local governments?

I hope not.

But here's... here's the additional--

JUSTICE SCALIA: --But I... I wouldn't put a lot of money on it.

[Laughter]

SETH P WAXMAN: --The point is that Congress... Justice Kennedy, the point is not that Congress was being inattentive to State and local budgets.

What it wanted to do what was this... the point this Court the addressed in... in Stakura and... and Owens v. City of Indianapolis, which is to enforce a Federal statute through privately enforceable Federal rights, which would include a damages remedy that both provides a deterrent against conduct that had provided entrenched resistance to a Federal program and provide compensation where reasonable and appropriate.

Now, this Court has made clear, with respect to damages, in... in Carey v. Piphus and other cases, that there may be very many cases in which there's a violation of a procedural right but only nominal damages are available.

And in Buckhannon--

JUSTICE GINSBURG: But with respect to--

SETH P WAXMAN: --If I may just finish this sentence.

And in Buckhannon and Farrar v. Hobby, this Court has... has recognized that in order to get attorney's fees, you have to have substantially prevailed and a court, under 1988(b), may award attorney's fees in its... may award... in its discretion insofar as they are reasonable.

And--

JUSTICE GINSBURG: --Mr.... Mr. Waxman.

SETH P WAXMAN: --Yes, Justice Ginsburg.

JUSTICE GINSBURG: There is in this legislative record a concern expressed by a Senator from California when there was a proposal on the table to make the FCC the Federal review forum.

And that was rejected, if I understand correctly, because there was a concern that municipalities would have to travel all the way to Washington, D.C. to defend in the FCC's forum.

And Congress did not want to saddle municipalities with the cost of transporting their representative to D.C. Well, that cost would pale compared to attorney's fees that would be awarded.

SETH P WAXMAN: First of all, Justice Ginsburg, I... the reference to those two Senators... what those two Senators were talking about is not, as my colleague's brief suggests, this provision.

They were talking about another provision of the Telecom Act.

I think it was section 253, but I may be wrong.

But even if that's the case, the fact of the matter is that whether it was going to cost them... I agree.

It would cost... look, a regime in... which left all of these siting decisions to the FCC is breathtaking, and it certainly would impose lots of costs not only on local municipalities to have to come to Washington to justify these decisions, but certainly on the FCC, which would have to send an army out to example... I mean, it would sort of like be the... the television commercial, you know, where the guy is walking around saying, you know, can you hear me now, can you hear me now?

The fact is it made great sense to continue to leave the initial decisions with local authorities.

But Congress had... was frustrated, expressly frustrated with the fact that the prior regime, in which they had let local authorities do it under their normal routines and applying the normal remedies, was not getting the job done.

That was the imperative of this statute.

And in the... in the absence of any evidence, even now 11 years later... or I guess it's 10 years... 9 years later.

In the absence of any evidence of a flood of litigation or inappropriate awards, I think given the very heavy presumption that this Court has recognized over and over and over again, that 1983 is there.

JUSTICE BREYER: That isn't the only--

SETH P WAXMAN: 1983 is the background principle against which Congress legislates.

And this statute either... neither provides nor excludes any remedies, and all it does is confirm that when you go... when you are injured, you can go to court.

And--

JUSTICE BREYER: --The other... the other harm is there any evidence of because it's... it would also be harmful if local zoning boards, when faced with quite difficult decisions, because the... the antenna... they bristle up and you put them in the wrong place.

They're environmentally harmful.

They... there are a lot of bad things, as well as good things about them.

And of course, it would be a bad impact if we discovered that the zoning boards were erring too much on the side of granting everybody's application, as well as too much on the side of not granting them.

SETH P WAXMAN: --To be sure.

JUSTICE BREYER: And so I... I don't know how... what the... there won't be evidence.

How can we get evidence on such a thing?

SETH P WAXMAN: The... the... you... the evidence will be either in the decided cases or by local municipal governments coming to Congress and saying, this is too heavy a thumb on the scale.

But what we know is that if you afford only prospective relief, which is the... the ancien regime that Congress was... that Congress felt wasn't doing the job, it provides no deterrent, no incentive to accomplish what Congress said was--

JUSTICE KENNEDY: But I... I don't think we--

SETH P WAXMAN: --a compelling national objective.

JUSTICE KENNEDY: --I don't think we usually think of... of judicial review of agency decisions in the ordinary course as being a deterrent.

SETH P WAXMAN: We--

JUSTICE KENNEDY: It's an opportunity to elaborate reasons.

It's a safeguard.

It's not a deterrent.

And you're saying it has to be a deterrent.

And as Justice Breyer indicates, it... it means that there's... there's another voice in that... in that administrative hearing room.

They're terrified of damages.

SETH P WAXMAN: --Justice Kennedy--

JUSTICE KENNEDY: And it's going to skew the decisions.

SETH P WAXMAN: --Justice Kennedy, it... under their... under the regulations of this municipality, which is... is perfectly representative, it is final agency action when the city planning commissioner says no, unless you choose to appeal it to the city council.

And there is... not only is there nothing peculiar about applying 1983 damages awards to the violation by a State and local government of an express Federal right, assuming you can prove not only that the right was violated but also that you were really damaged.

It's... I'm not suggesting that... that Congress had damages in mind specifically and only to deter conduct.

You have said in a variety of instances... I mentioned Stacura in particular... that 1983 damages do serve as a deterrent to violation of Federal rights by municipal local officials.

But what Congress had... Congress had to come up with some way to confront this problem in which there were sort of local parochial--

JUSTICE STEVENS: May I ask this question, Mr. Waxman?

I don't know if it's really a legal question exactly, but I have the impression that most of the plaintiffs in this type of litigation are well-financed, large companies rather than the typical 1983 plaintiff.

And therefore, you don't need the attorney's fee incentive to be sure these rights are protected.

Is that a correct impression or is it incorrect?

SETH P WAXMAN: --I... I don't know whether it's a correct impression or not.

Our brief points the Court to an authority that at least 9,500 of the entities that have... have created antennas or tower facilities have 10 or fewer facilities.

And one thing we know for sure is that when Congress enacted the Telecom Act of 1996, it specifically wanted to encourage small operations, start-up companies.

It had specific provisions in the law to give special treatment to small entrepreneurs in order to foster diversity and competition.

But in the event that you--

JUSTICE SCALIA: I can't imagine... I can't imagine, Mr. Waxman, that Congress wanted to impose damages plus attorney's fees upon municipalities without even giving the municipalities the chance to correct their mistakes, which is what you're saying.

SETH P WAXMAN: --Well--

JUSTICE SCALIA: You're saying the municipalities' appeal system, which is there for people to take advantage of, is just washed out.

One mistake at the lowest level and you get damages and you get attorney's fees.

That... that is extraordinary.

SETH P WAXMAN: --Justice Scalia, the... the... 1983... and your jurisprudence shouts this as clearly as it does any other principle... stands for the proposition that it's there unless, in the explicit language of the statute that creates the right, there is a demonstrated incompatibility.

And that's the background rule.

There are many instances in the Telecom Act and elsewhere in which Congress has said you can only get injunctive relief.

You may not get 1983 damages.

I mean, go back to Adickes v. Kress where this Court said in title II of the Public Accommodations act, Congress expressly... expressly precluded damages in order to avoid invocation of 1983.

And I'm not saying that Congress had in mind my client, who is an individual, a sole entrepreneur, who was subject to, I think what the record shows is, prolonged and entrenched intransigence by this particular municipality, any more than it had Judge Posner's example in the Seventh Circuit where it was, you know, Verizon v. the Village of Mequon.

But this Court has recognized, as have the lower courts, that you only get damages if you prove that you really have been damaged.

And in an instance where there's some procedural violation and a remand to correct it, this may very well be the instance of Carey v. Piphus, where the damages are purely nominal.

The agency is given the opportunity.

In this case, the city never said, give us the opportunity to go back and correct it.

And Judge Wilson, a very level-headed district judge, said there's nothing to go back and correct because the only thing... the only reason that the city gave was it didn't like this antenna and tower in the first place.

It... we concede that it makes no difference to anybody which frequencies are being broadcast from this tower that we approved 10 years ago and have no right to modify.

And therefore, there was a substantive violation, not just, you know, you... you may have had substantial evidence but you didn't lay it all out or you gave your reasons at length and orally but not in writing, I'll give you the opportunity to go back.

There's a line of cases this Court has decided under the Social Security Act where there have been remands to correct procedural errors or small errors, and in those instances, Carey v. Piphus says you don't get damages.

And under Buckhannon and Farrar v. Hobby, you probably don't get attorney's fees either.

If there ever is the sort of parade of horribles that they protest about, even a small parade of horribles, Congress will be as attentive as it was in 1992 when the cable--

JUSTICE STEVENS: Thank you, Mr. Waxman.

SETH P WAXMAN: --Thank you.

JUSTICE STEVENS: Mr. Lamken, you have about 4 minutes left.

REBUTTAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONERS

JEFFREY A LAMKEN: I'd like to make only two brief points.

First, that the imposition of the... of damages and fees under section 1983 from a decision in this Court for even good faith mistakes in the implementation of the antenna siting rules, which are often complex and uncertain, would be a welcome mat for extensive and aggressive litigation and the imposition of extensive fees on municipalities which simply cannot afford to enforce their zoning rules, the rules that Congress expressly attempted to preserve in the statute itself.

It is... in this case alone, for example, respondent's most recent estimate of his damages and fees... and this was before he retained Mr. Waxman, I might add... is... is [dollar] 15 million, essentially the city's entire budget for a year.

And respondent claims to be a relatively small operator.

That sort of... with that sort of liability in an uncertain area of law, very few municipalities could ever afford to stand on their rights to enforce local zoning even when they're relatively certain that they are right.

Section 332(c)(7) is entitled and has one of its purposes as the preservation of local authority.

It should not be construed to provide for that authority's evisceration.

The second point I wanted to hit is that when Congress established the mechanism for review in 332, it provided a very adapted mechanism with an unusual pair of characteristics: a very short limitations period and mandatory expedition.

This Court's decisions in Novotny makes it clear that neither of those requirements can be simply transferred over to section 1983.

Novotny had very similar language, a 90-day limitations period.

The Court did not transfer that over to section 1985(3).

Instead it understood that the general rule, the general Federal principle of law, that in the absence of an express limitations period, that State law would control.

Wilson then confirms that rule, as an interpretation of section 1988, that the governing Federal principle is that State law controls unless there's an express Federal cause of... statute that addresses that particular cause of action.

If there are no further questions, we ask only that the judgment of the Ninth Circuit be reversed.

Thank you.

JUSTICE STEVENS: Thank you, Mr. Lamken.

The case is submitted.

(Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)