352 F.3d 458 (1st Cir. 2003), 02-2424, Metheny v. Becker

Docket Nº:02-2424
Citation:352 F.3d 458
Party Name:Metheny v. Becker
Case Date:December 12, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 458

352 F.3d 458 (1st Cir. 2003)

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,


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.

No. 02-2424.

United States Court of Appeals, First Circuit

December 12, 2003

Heard April 9, 2003.

Page 459

William J. Hunt, with whom Michael B. Newman and Clark, Hunt & Embry were on brief, for appellants.

Kenneth Ira Spigle, for appellees.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

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 decision making, 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 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.

Page 460

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, 117 S.Ct. 467, 136 L.Ed.2d 437 (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...

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