United States Court of Appeals For the First Circuit

No. 19-2121

T-MOBILE NORTHEAST LLC,

Plaintiff, Appellee,

v.

TOWN OF BARNSTABLE, ET AL.,

Defendants, Appellees.

NANCY SNELL; LORRAINE O'CONNOR,

Putative Intervenors, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Paul Revere, III on brief for appellants. Thomas Scott Thompson, Courtney DeThomas, Patrick J. Curran Jr., and Davis Wright Tremaine LLP on brief for appellee T-Mobile.

August 7, 2020 SELYA, Circuit Judge. Plaintiff-appellee T-Mobile

Northeast LLC (T-Mobile) wants to operate a wireless

telecommunications facility in an existing church steeple in a

bucolic Cape Cod community. It sought the required municipal

permissions and, when it was unsuccessful in obtaining them, it

sued the Town of Barnstable (the Town), two of its agencies, and

a coterie of municipal officials in the United States District

Court for the District of Massachusetts pursuant to the

Telecommunications Act of 1996 (TCA). See

(c)(7).

Two local residents (appellants Nancy Snell and Lorraine O'Connor)

sought leave to intervene. T-Mobile opposed their motions, and

the district court denied them. This appeal followed. Discerning

neither legal error nor abuse of discretion, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case, drawing upon facts proffered by the appellants in support of

their nearly identical motions to intervene and supplementing

those proffers with undisputed facts contained elsewhere in the

record. See B. Fernández & Hnos., Inc. v. Kellogg USA, Inc.,

(1st Cir. 2006). Our starting point is in 2017,

when T-Mobile obtained a building permit to install an antenna

array concealed within the steeple of South Congregational Church

in the Centerville section of the Town.

- 2 - The appellants — who own properties abutting the Church

and represent a civic group called Centerville Concerned Citizens

(CCC) — entered the fray in April of 2018. At that time, CCC

petitioned the Town's Building Commissioner to revoke T-Mobile's

permit on the ground that the Centerville Village District had

been designated a District of Critical Planning Concern (DCPC) and

was therefore subject to zoning restrictions prohibiting the

installation of wireless telecommunications facilities. In July

of 2018, the Commissioner denied CCC's request as untimely but

nonetheless issued a stay of the permit.

T-Mobile spent the next nine months seeking relief from

the Town's Planning Board and Zoning Board of Appeals. At every

turn, CCC and the appellants appeared in opposition and

participated in hearings. At the end of the line, though, the

Zoning Board of Appeals denied T-Mobile's requests for a variance

and a special use permit, largely adopting CCC's argument that the

board lacked jurisdiction to grant relief under the operative DCPC

regulations. Similarly, the Planning Board denied T-Mobile's

application for a regulatory agreement to install the antenna array

in the church steeple and ancillary equipment in the church

basement.

Having exhausted all available avenues for local relief,

T-Mobile repaired to the federal district court. Its complaint

asserted TCA claims against the Town, the Planning Board, the

- 3 - Zoning Board of Appeals, and the members of each board in their

representative capacities.1 Enacted by Congress to accelerate the

development of personal wireless networks nationwide, the TCA

limits local land-use regulatory authority over the placement and

construction of such networks and creates a federal cause of action

for parties adversely affected by local regulations that

transgress those limitations. See

(c)(7);

Omnipoint Holdings, Inc. v. City of Cranston,

(1st Cir. 2009); Nat'l Tower, LLC v. Plainville Zoning Bd. of

Appeals,

(1st Cir. 2002).

T-Mobile challenged the Town's denial of regulatory

relief as unsupported by substantial evidence, an unlawful

prohibition on the provision of wireless services, and an exercise

in regulatory excess. See

(c)(7)(B). The Town

disputed these challenges and interposed a salmagundi of

affirmative defenses.

More than two months after the commencement of suit, the

appellants moved to intervene as of right, see Fed. R. Civ. P.

24(a), or in the alternative, to intervene permissively, see Fed.

R. Civ. P. 24(b). They anchored their motions on claims that they

1We recognize that simplicity has its virtues. Because the individual defendants are sued in their representative capacities and because the two boards are municipal appendages, we proceed as if the Town was the sole defendant. Our decision, of course, encompasses all of the named parties.

- 4 - were abutting landowners who had a stake in both enforcing the

DCPC zoning regulations and in upholding the decisions of the

Town's land-use boards. T-Mobile opposed the motions. Ruling on

the papers, the district court summarily refused the requests for

intervention. This timely appeal ensued.

While this appeal was pending, the district court

granted summary judgment in T-Mobile's favor on the merits of its

TCA claims. See T-Mobile Ne. LLC v. Town of Barnstable, No. 19-

CV-10982,

, at *9 (D. Mass. June 17, 2020). The

court concluded that the Town's denial of regulatory relief was

not supported by substantial evidence and served, in effect, as an

unlawful prohibition on the provision of wireless services. See

. T-Mobile advised us of this decision, see Fed. R.

App. P. 28(j), suggesting that the ruling bolstered its argument

that the proposed intervention was untimely. The appellants did

not reply to T-Mobile's Rule 28(j) letter.

II. ANALYSIS

The Civil Rules establish two modes of intervention:

intervention as of right, see Fed. R. Civ. P. 24(a), and permissive

intervention, see Fed. R. Civ. P. 24(b). The appellants claim an

entitlement to both modes. We first discuss the standard of review

and then discuss each of the appellants' claims.

- 5 - A. Standard of Review.

We review a district court's denial of a motion for

intervention as of right through an abuse-of-discretion lens. See

Negrón-Almeda v. Santiago,

(1st Cir. 2008). We

use the same abuse-of-discretion lens when reviewing the denial of

a motion for permissive intervention. See Int'l Paper Co. v.

Inhabitants of Town of Jay,

(1st Cir. 1989). We

remain mindful, of course, that the abuse-of-discretion standard

is not a monolith: within it, abstract legal rulings are

scrutinized de novo, factual findings are assayed for clear error,

and the degree of deference afforded to issues of law application

waxes or wanes depending on the particular circumstances. See

Candelario-Del-Moral v. UBS Fin. Servs. Inc. of P.R. (In re Efron),

(1st Cir. 2014); Cotter v. Mass. Ass'n of Minority

Law Enf't Officers,

(1st Cir. 2000).

We add, though, that in the Rule 24(a) context, abuse-

of-discretion review has a special gloss. A district court's

discretion to deny a motion to intervene as of right is

circumscribed by Rule 24(a)'s explicit directive that the court

"must" allow intervention as of right by parties who satisfy the

enumerated requirements. See Cotter,

.

Because of its relationship to the standard of review,

we pause to draw out a common thread that runs through all of the

appellants' arguments. They assail the cryptic nature of the

- 6 - district court's summary denial of their motions to intervene. In

their view, the court's failure to explicate its reasoning amounts

to a per se abuse of discretion, requiring vacation of its order.

This argument is unavailing.

The appellants offer no precedential support for their

ipse dixit that brevity in denying a motion for intervention,

without more, constitutes a per se abuse of discretion. What is

more, the case law is inhospitable to this notion. See, e.g.,

Ungar v. Arafat,

(1st Cir. 2011) (rejecting claim

that district court abused discretion by conclusorily denying

intervention as of right because appellate court could review

record and "gauge whether the court applied the . . . factors

appropriately"). Where, as here, the district court does not state

its reasons for denying intervention, abuse-of-discretion review

simply becomes less deferential because "there is nothing to which

to give deference." Cotter,

. In other words,

"[w]here . . . the district court made no specific findings, we

can do so, relying on the record." Geiger v. Foley Hoag LLP Ret.

Plan,

(1st Cir. 2008); cf. R & G Mortg. Corp. v.

Fed. Home Loan Mortg. Corp.,

(1st Cir. 2009)

(stating that "when a trial court's order is imprecise, the court

of appeals frequently 'can comb relevant parts of the record to

discern the authoring court's intention'" (quoting Negrón-Almeda,

)).

- 7 - The upshot is that where, as here, the district court

summarily denies a motion to intervene, the court of appeals must

review the record as a whole to ascertain whether, on the facts at

hand, the denial was within the compass of the district court's

discretion. See Ungar,

& n.4; cf. Geiger,

(holding that district court did not abuse discretion by

summarily granting intervention where "record amply demonstrate[d]

that [intervenor] satisfied the requirements of Rule 24(a)"). It

is against this backdrop that we turn to the denial of the

appellants' motions.

B. Intervention as of Right.

To prevail on a motion for intervention as of right, a

putative intervenor must demonstrate (1) the timeliness of her

motion; (2) a concrete interest in the pending action; (3) "a

realistic threat" that resolution of the pending action will hinder

her ability to effectuate that interest; and (4) the absence of

adequate representation by any existing party. R & G Mortg.,

. It is black letter law that a failure to satisfy any

one of these four requirements sounds the death knell for a motion

to intervene as of right. See Ungar,

; Pub. Serv.

Co. of N.H. v. Patch,

(1st Cir. 1998). In this

instance, the most obvious shortcoming in the appellants'

asseverational array relates to the fourth requirement: adequacy

of representation. We start — and end — with that requirement.

- 8 - To demonstrate inadequate representation, a putative

intervenor must show that no existing party fairly represents her

interests. See Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

(1st Cir. 2015).

Although this requirement typically demands only a showing that an

existing party's representation may prove inadequate, see

Conservation Law Found., Inc. v. Mosbacher,

(1st

Cir. 1992), such a showing necessitates more than empty conjecture,

see Patch,

(cautioning that this requirement "is

more than a paper tiger"). As we have said, a party pursuing

intervention as of right "must produce some tangible basis to

support a claim of purported inadequacy" of representation.

This requirement has additional bite when a would-be

intervenor's objective aligns seamlessly with that of an existing

party. In such a situation, a rebuttable presumption of adequate

representation attaches. See Students for Fair Admissions,

; B. Fernández,

. So, too, when a would-

be intervenor seeks to appear alongside a governmental body in

defense of the validity of some official action, a rebuttable

presumption arises that the government adequately represents the

interests of the would-be intervenor. See Maine v. Dir., U.S.

Fish & Wildlife Serv.,

(1st Cir. 2001); Daggett v.

Comm'n on Governmental Ethics & Election Practices,

(1st Cir. 1999); Patch,

.

- 9 - These presumptions hold sway here. With respect to

T-Mobile's TCA claims, the Town and the appellants share the same

ultimate goal: each of them is seeking to vindicate local land-

use regulations and uphold the Town's administrative

determinations. In addition, the presumption that a governmental

entity defending official acts adequately represents the interests

of its citizens applies full-bore, given the Town's vigorous, no-

holds-barred defense of its refusal to grant a variance or other

regulatory relief to T-Mobile. See, e.g., Mass. Food Ass'n v.

Mass. Alcoholic Beverages Control Comm'n,

(1st

Cir. 1999) (applying this presumption when there was "no doubt

that [government defendant] was zealously interested in upholding

the validity of the [challenged] statute").

To defeat these presumptions, the appellants would have

had to put forward "a strong affirmative showing" that the Town

does not adequately represent their interests. Patch,

(quoting United States v. Hooker Chems. & Plastics Corp.,

, 985 (2d Cir. 1984)); see B. Fernández,

(explaining that putative intervenor must "offer 'an adequate

explanation as to why'" existing party's representation is

insufficient (quoting Maine,

)). Such a showing

would have had to consist of "'something more than speculation as

to the purported inadequacy' of representation." Students for

Fair Admissions,

(quoting Moosehead Sanitary Dist.

- 10 - v. S. G. Phillips Corp.,

(1st Cir. 1979)). Here,

however, the appellants made no such showing in the district court.

Instead, they offered only conclusory arguments, founded entirely

on speculation and surmise.

To illustrate, the appellants — in struggling to portray

the Town's representation as deficient — worry that the Town

"ultimately may settle this matter" and suggest that the Town

"appears to be adopting a litigation strategy that seems

inadequate." But there is no meat on these bones; the appellants'

conjectures are tendered without either specificity or record

support. For aught that appears, the Town has conducted a robust

defense, and the appellants have not identified even a single

shortcoming in its handling of the litigation. A showing of

inadequate representation cannot rest on so flimsy a foundation.2

To cinch the matter, a court ordinarily may deem an

existing party's representation adequate if that party is likely

to raise the putative intervenor's preferred arguments and it seems

improbable that the putative intervenor will add any missing

element. See United Nuclear Corp. v. Cannon,

, 144

2 For the first time on appeal, the appellants attempt to raise the specter of a poorly conceived legal strategy on the Town's part. Few principles are as entrenched in this circuit as that, "absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal." Teamsters Union, Local No. 59 v. Superline Transp. Co.,

(1st Cir. 1992).

- 11 - (1st Cir. 1982). Given the circumstances of this case, the

district court was entitled to invoke this rule of thumb. After

all, the appellants' neither identified any arguments that the

Town was unlikely to advance nor articulated any convincing reason

that might have led the district court to believe that they would

inject some missing ingredient into the Town's defense.

That ends this aspect of the matter. Because the

appellants failed to make a cognizable showing of inadequacy of

representation, we affirm the district court's denial of their

motions to intervene as of right.

C. Permissive Intervention.

We need not linger long over the district court's denial

of the appellants' motions for permissive intervention. Under

Rule 24(b), a district court may, in its discretion, allow the

intervention of any party who "has a claim or defense that shares

with the main action a common question of law or fact." Fed. R.

Civ. P. 24(b)(1)(B). Although the appellants cross this threshold,

that does not get them very far: they must offer some persuasive

reason as to why the district court abused its discretion in

denying intervention.

When deciding whether or not to allow permissive

intervention on behalf of persons who share common issues of law

and/or fact with an existing party, a district court "must consider

whether the intervention will unduly delay or prejudice the

- 12 - adjudication of the original parties' rights." Fed. R. Civ. P.

24(b)(3). Additionally, the court may "consider almost any factor

rationally relevant" to the intervention determination. Daggett,

. The court "enjoys very broad discretion in

granting or denying [such a] motion."

In the court below, the putative intervenors argued that

their status as abutting landowners gave them defenses that shared

common questions of law and/or fact with the defenses asserted by

the Town; that this status rendered them aggrieved persons under

Massachusetts law, see Mass. Gen. Laws ch. 40A, § 17 (establishing

right of appeal by "[a]ny person aggrieved by a decision of the

[zoning] board of appeals"), impliedly repealed on other grounds

by Mass. Gen. Laws ch. 185, § 3A; and that, therefore, they should

be permitted to intervene. This argument turns state law upside-

down: even if we assume that "aggrieved person" status under state

law factors into the permissive intervention calculus, the

putative intervenors' insistence that they have such status is

misplaced. Far from being aggrieved by the Town's denial of

regulatory relief, the appellants seek to uphold that denial. They

are, therefore, not aggrieved persons within the contemplation of

the Massachusetts statute. See Prudential Ins. Co. of Am. v. Bd.

of Appeals of Westwood,

(Mass. App. Ct. 1984)

(explaining that abutters who opposed site plan did not qualify as

- 13 - persons aggrieved by zoning board's rejection of plan because "they

were presumably benefited by it").

To the extent that the appellants' motions for

permissive intervention can be construed to cut a wider swath, the

record amply supports their denial. To begin, a district court

considering requests for permissive intervention should ordinarily

give weight to whether the original parties to the action

adequately represent the interests of the putative intervenors.

See Kowal v. Malkemus (In re Thompson),

, 1142 n.10

(1st Cir. 1992). As we already have explained, see supra Part

II(B), the appellants made no showing that the Town would fail to

represent their interests adequately.

Relatedly, a district court mulling permissive

intervention is free to consider whether "the applicants may be

helpful in fully developing the case." Daggett,

.

Here, the appellants' motion papers did not articulate what, if

anything, they would contribute to the vitality of the Town's

defense. Faced with this silent record, the district court was

not obliged to conjure up unpleaded allegations. Cf. United States

v. Zannino,

(1st Cir. 1990) (explaining that

"[j]udges are not expected to be mindreaders," with the result

that litigants are expected "'to spell out [their] arguments

squarely and distinctly,' or else forever hold [their] peace"

- 14 - (quoting Rivera-Gomez v. de Castro,

(1st Cir.

1988))).

If more were needed — and we do not think that it is —

Rule 24(b)(3) directs courts to consider whether permissive

intervention "will unduly delay or prejudice the adjudication of

the original parties' rights." This directive is especially

important in TCA cases because a core purpose of the TCA is to

minimize delay in resolving disputes about the construction of

wireless telecommunications facilities. See

(c)(7)(B)(v) (requiring courts to "hear and decide [TCA

actions] on an expedited basis"); Omnipoint Holdings,

(explaining that TCA "stresses the need for speedily deploying

telecommunications and seeks to get prompt resolution of

disputes"). Multiplying the number of parties in a case will often

lead to delay. Cf. Daggett,

(noting that district

court's "thought that the addition of still more parties would

complicate a case" was "plainly a permissible consideration").

With this in mind, we think it evident that permitting intervention

in TCA actions by parties who — like the appellants — do not appear

poised to add anything of meaningful value to the litigation would

unduly hinder the efficient resolution of TCA cases. See

(finding it within district court's discretion to consider that

case "badly need[s] to be expedited" and that "more parties would

complicate" matters unnecessarily).

- 15 - The short of it is that a district court's discretion to

grant or deny motions for permissive intervention is very broad.

See Travelers Indem. Co. v. Dingwell,

, 641 (1st Cir.

1989); Int'l Paper,

. We will set aside such a

decision only upon a showing of a clear abuse of that broad

discretion. See Travelers Indem., 884 F.2d at 641. On this

record, there is no principled way for us to say that the district

court abused its discretion in denying the appellants' motions for

permissive intervention.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the order denying intervention is

Affirmed.

- 16 -