696 F.3d 1018 (10th Cir. 2012), 11-2156, Firstenberg v. City of Santa Fe, New Mexico

Docket Nº:11-2156.
Citation:696 F.3d 1018
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Arthur FIRSTENBERG, Plaintiff-Appellant, v. CITY OF SANTA FE, NEW MEXICO; AT & T Mobility Services, LLC, Defendants-Appellees.
Attorney:Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, NM, for Plaintiff-Appellant. Marcos D. Mart
Judge Panel:Before BRISCOE, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
Case Date:October 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1018

696 F.3d 1018 (10th Cir. 2012)

Arthur FIRSTENBERG, Plaintiff-Appellant,


CITY OF SANTA FE, NEW MEXICO; AT & T Mobility Services, LLC, Defendants-Appellees.

No. 11-2156.

United States Court of Appeals, Tenth Circuit.

October 9, 2012

Page 1019

Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, NM, for Plaintiff-Appellant.

Marcos D. Martínez, Assistant City Attorney, Santa Fe, NM, (Eugene I. Zamora, City Attorney, Santa Fe, NM, with him on the brief), for Defendant-Appellee City of Santa Fe.

Hans J. Germann, Mayer Brown LLP, Chicago, IL (John E. Muench and Kyle J. Steinmetz, Mayer Brown LLP, Chicago, IL; Mark A. Basham, Basham & Basham P.C., Santa Fe, NM, with him on the brief), for Defendant-Appellee AT & T Mobility Services, LLC.

Before BRISCOE, Chief Judge, BALDOCK and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Electromagnetic radiation is a form of energy ubiquitous in our modern world, associated with everything from WiFi networks to microwave ovens to power lines. Most of us do not notice it. Some individuals, however, apparently suffer from a condition known as electromagnetic hypersensitivity (" EHS" ), which requires them to avoid exposure to sources of electromagnetic radiation. These sources include cell-phone towers, sometimes called " base stations," which emit a form of energy

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known as radiofrequency (" RF" ) radiation. See generally Federal Communications Commission, Radio Frequency Safety, http:// transition. fcc. gov/ oet/ rfsafety/.

Arthur Firstenberg allegedly suffers from EHS, and he brought this lawsuit against the City of Santa Fe, New Mexico (" City" ), and AT & T Mobility Services, LLC (" AT & T" ), asserting that signal upgrades at AT & T base stations in Santa Fe adversely affected his health and that the City is required to regulate those upgrades. Litigation proceeded apace and the district court dismissed Mr. Firstenberg's action against the City and AT & T for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). And Mr. Firstenberg appealed.

After a full round of appellate briefing, we noted a potential jurisdictional infirmity: the failure of Mr. Firstenberg's complaint to satisfy the well-pleaded complaint rule for purposes of federal-question jurisdiction under 28 U.S.C. § 1331. We asked for supplemental briefing, which the parties provided. They all insisted that federal jurisdiction is proper. After careful review, we disagree. We are therefore constrained to reverse the district court's dismissal orders and resulting judgment and to remand the case to the district court with directions to vacate its judgment and remand the case to state court.


Mr. Firstenberg is a resident of Santa Fe. As an EHS sufferer, he must avoid exposure to RF radiation from cell phones, base stations, and other sources. AT & T owns and operates several base stations in Santa Fe. In November 2010, AT & T upgraded its broadcast signals from 2G (second generation) to 3G (third generation),1 increasing the amount and intensity of RF radiation from its base stations and causing Mr. Firstenberg to suffer insomnia, irritability, eye pain, dizziness, nausea, and itching.

Over the years, AT & T has been granted " special exceptions" under the City's Land Development Code (" Code" ) to construct its base stations. AT & T did not apply for or obtain additional special exceptions prior to initiating the 3G broadcasts. Mr. Firstenberg believes this was improper under the Code and points to § 14-3.6(B)(4)(b), which requires the City's Board of Adjustment to approve an additional special exception if there is a " more intense use" of an existing structure.2

Proceeding pro se, Mr. Firstenberg petitioned for a writ of mandamus in New Mexico state court, naming the City and AT & T as defendants. He claimed that " [t]he City of Santa Fe has a duty under § 14-3.6(B)(4)(b) to require AT & T to apply for a new Special Exception ... for each of its existing base stations before it is permitted to increase their intensity of

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use." Aplt.App. at 172 (Second Am. Pet. for Writ of Mandamus, filed Dec. 29, 2010). He also alleged that he suffered from EHS, that he was " a qualified individual with a disability" under the Americans with Disabilities Act (" ADA" ), id. at 171, and that he was therefore " beneficially interested in the enforcement of this ordinance," id. at 172.

Based on his prior experience— specifically, a public hearing at which the Board of Adjustment refused to regulate AT & T's antenna upgrades— Mr. Firstenberg anticipated that the City might raise a preemption defense under Section 704 of the Telecommunications Act of 1996 (" TCA" ). Section 704 prohibits local governments from regulating " the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions." 47 U.S.C. § 332(c)(7)(B)(iv). His petition thus set forth the following under the heading " Argument" :

20. Section 704 of the [TCA] is not the only federal law that the City of Santa Fe must obey. The City also has to obey Title II of the Americans with Disabilities Act, which prohibits public entities from subjecting any person to discrimination by reason of their disability (42 USC § 12132), and the Fifth and Fourteenth Amendments of the Constitution, which guarantee to every citizen the equal protection of the laws, and provide that no citizen be deprived of life, liberty, or property without due process....

21. There is actually no conflict between the [TCA] and other federal laws.... The [TCA] contains no language expressly modifying, impairing, or superseding the ADA. In fact the only mention of the ADA in the [TCA] (Section 255) requires compliance with it. Neither does the [TCA] supersede or modify the U.S. Constitution, nor could it.... If regulation of radio frequency radiation is required in order to comply with the Americans with Disabilities Act or the Constitution, a city is obligated to do so.

22. The City of Santa Fe is required to enforce its laws, as well as to take jurisdiction over the intensity of radio frequency radiation from permitted facilities, in order to fulfill its obligations under the ADA and the Constitution.

Aplt.App. at 176-77. In the next section, entitled " Cause of Action," Mr. Firstenberg reiterated that the City " has a clear legal duty to enforce the requirements of its Land Development Code, including, in particular, § 14-3.6(B)(4)(b)," that the City " has refused to enforce that section of the Code," and that mandamus was therefore appropriate. Id. at 178. In this section, Mr. Firstenberg made no reference to the ADA or the U.S. Constitution. He was similarly silent regarding these sources of federal law in his prayer for relief. There, Mr. Firstenberg requested the court to " issue a writ of mandamus directing the City of Santa Fe ... to commence enforcement proceedings, as provided in ... its [Code], by giving notice to AT & T that it must discontinue its 3G broadcasts within the City of Santa Fe within 30 days, and that it must submit an application for a Special Exception for each base station from which it proposes to broadcast such signals." Id.

The state court issued an alternative writ of mandamus, ordering the City to prohibit the 3G broadcasts unless and until special exceptions were granted or to show cause why it had not done so. AT & T and the City then removed the action to federal district court, asserting jurisdiction based on the existence of a federal question under 28 U.S.C. § 1331. They each

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filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The City joined in the arguments of AT & T; as such, they both contended that § 14-3.6(B)(4)(b) did not apply to broadcast-signal upgrades, but that even if it did, the TCA preempted Mr. Firstenberg's claim. They also argued that Mr. Firstenberg was " not making any claim under the ADA" and that even if he was, the claim failed. Aplt.App. at 197 (AT & T Mem. in Supp. of Mot. to Dismiss, filed Jan. 28, 2011).

The district court granted the defendants' motions to dismiss and it issued separate, though similar, opinions.3 The court briefly addressed its jurisdiction over Mr. Firstenberg's claims:

Plaintiff's claim hinges on whether the City has authority under the [Code] to regulate wireless transmissions. To resolve this issue the Court must answer a " substantial question of federal law," which is whether the City can enforce its [Code] in light of [Section 704 of the TCA]. In addition, Plaintiff invokes his right to protection under the ADA and under the Equal Protection and Due Process Clauses of the United States Constitution.

Id. at 258-59 (citation omitted) (quoting Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir.1994)). The court then reached the merits of the claims and defenses, concluding that the TCA preempted the City's authority to regulate AT & T's broadcast upgrades. The court construed Mr. Firstenberg's complaint— that is, his state-court mandamus petition 4— as raising separate equal protection, procedural due process, and...

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