Landowners’ FCC Dilemma: Rereading the Supreme Court’s Armstrong Opinion After the Third Circuit’s DePolo Ruling
Since Marbury v. Madison, federal courts have been venues that can adequately review and respond to private claims of injury. 1 Chief Justice Marshall noted that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,” and it is the “dut[y] of government . . . to afford that protection.”2 The Supreme Court has been relatively consistent by implying private claims against the government where a particular statute is silent as to whether there is a private cause of action.3 Indeed, private actors have called upon federal courts to review unconstitutional government action.4
The Supreme Court has historically been quite content to allow private causes of action based on common law.5 Ex parte Young is one of the better-known examples of the Supreme Court’s recognition of the ability of private actors to challenge state regulations as forms of monetary confiscations in violation of the Fourteenth Amendment and the Commerce Clause. 6 There, the Court allowed railroad stockholders to sue a state official instead of the state.7 The Court explained that federal courts, like state courts, “should, at all times, be opened” to claimants “for the purpose of protecting their property and their legal rights.”8 Indeed, property rights were at the center of the debate in Ex parte Young, and it would seem to be in contravention of basic principles of property law for courts to shutout property owners from pursuing private causes of action in federal court against governments allegedly violating federal statutory or constitutional law.
Yet, in Armstrong v. Exceptional Child Ctr., Inc., the Court has taken a turn in the other direction, by refusing to provide avenues for relief to private actors against the state in federal court and finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. 9 Many critics, including the four dissenting Justices, question the wisdom of the ruling generally.10 But from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo v. Board of Supervisors Tredyffrin Township, et al. 11
The Armstrong decision extends beyond foreclosing private parties from invoking equitable powers of the federal courts to require states to comply with portions of the Medicaid Act. The decision also forecloses an inconspicuous subset of private landowners—amateur radio enthusiasts desiring to construct amateur radio towers on their property—from pursuing equitable relief where local zoning ordinances directly conflict with federal regulation 47 C.F.R. § 97.15(b) and Federal Communications Commission (FCC) declaratory ruling, PRB-1. This article brings to light an uncomfortable result for private landowners seeking relief in federal court against local government actions that violate federal regulations.
