FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES A. KAY, JR., individually 

and d/b/a LUCKY’S TWO WAY

RADIO; COMMUNICATIONS RELAY

CORPORATION, a California

corporation,

Plaintiffs-Appellants,

v.

CITY OF RANCHO PALOS VERDES, a No. 05-56149

municipality; RANCHO PALOS

D.C. No. VERDES PLANNING COMMISSION, and  CV-02-03922-DSF its members; FRANK LYON; LARRY

CLARK; JON CARTWRIGHT; THOMAS OPINION

LONG; CRAIG MUELLER; THEODORE

PAULSON; DONALD VANNORSDALL;

CITY OF RANCHO PALOS VERDES

CITY COUNCIL, and its members;

JOHN MCTAGGART; DOUGLAS STERN;

PETER GARDINER; BARBARA

FERRARO,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

May 7, 2007—Pasadena, California

Filed September 21, 2007

Before: Barry G. Silverman, Kim McLane Wardlaw, and

Jay S. Bybee, Circuit Judges.

12901
Opinion by Judge Wardlaw

12902 KAY v. CITY OF RANCHO PALOS VERDES
COUNSEL

C. D. Michel, Glenn S. McRoberts, and Thomas E. Maciejewski of Trutanich Michel LLP, Long Beach, California, for

the plaintiffs-appellants. 

Carol W. Lynch, City Attorney, Rancho Palos Verdes, California, for the defendants-appellees. 

T. Peter Pierce and David G. Alderson of Richards, Watson

& Gerson, Los Angeles, California, for the defendantsappellees. 

12904 KAY v. CITY OF RANCHO PALOS VERDES
OPINION

WARDLAW, Circuit Judge: 

James A. Kay, Jr. wanted to use the pre-existing amateur

antennae on the roof of a house in the City of Rancho Palos

Verdes (“the City”) for commercial wireless transmissions.

The City denied him a conditional use permit (“CUP”), and

Kay filed suit. The district court dismissed three of his claims,

but ruled in his favor on his Telecommunications Act

(“TCA”) and California state law claims. Although the district

court granted injunctive relief, it found that the City enjoys

immunity from damages, and denied Kay’s request for compensatory damages. Kay appeals the dismissal of three of his

claims, the denial of damages, and seeks reassignment to a

different judge on remand. We have jurisdiction pursuant to

28 U.S.C. § 1291. We hold that the dismissed claims are now

barred by the doctrine of res judicata, and that the City is

immune from damages under controlling California law.

Finally, we hold that compensatory damages are not available

under the TCA, 47 U.S.C. § 332,1 and affirm the district court.

I. BACKGROUND

Kay is an FCC-licensed amateur and commercial broadcaster who operates commercial two-way radio systems. Kay

operates transmission facilities throughout Southern California. In 1994 he purchased a single-family residence located in

Rancho Palos Verdes, California. The house had two preexisting vertical radio antennae mounted on the roof.2

 It has

remained unoccupied since 1994. In January 1997, the City

sent Kay a notice of violation claiming that he was using his

1Section 332(c)(7) was added to the Telecommunications Act of 1934

by § 704 of the Telecommunications Act of 1996. To avoid confusion, we

use the shorthand “TCA” to refer to the 1934 Act as amended by the 1996

Act. We do not use the section numbering from the 1996 Act. 

2The antennae can be used both for amateur and commercial purposes.

KAY v. CITY OF RANCHO PALOS VERDES 12905
rooftop antennae for commercial purposes. Kay denied using

the rooftop antennae commercially. But, in April 1998, he

installed antennae for commercial use inside an upstairs bedroom of the house. Then, at some point, Kay installed three

more vertical antennae on the roof. On August 5, 1998, Kay

filed an application with the City seeking approval for noncommercial use of the antennae on the roof. On July 7, 1999,

the City notified Kay that his five antennae were exempt from

regulation because they were intended for amateur use. 

On April 14, 2000, the City filed suit against Kay in state

court, seeking an injunction compelling him to obey the

City’s municipal code and requiring him to obtain approval

from the City before using any of his antennae for commercial

purposes. On February 25, 2002, the state court entered a permanent injunction in favor of the City. It held that the interior

antennae operated on commercial frequencies and “that the

use of any antenna for commercial purposes without having

first obtained City approval, including but not limited to a

conditional use permit, was a public nuisance per se.” The

state court enjoined Kay from erecting any new antennae or

using his existing antennae for commercial purposes without

City approval. This decision was affirmed by the California

Court of Appeal in an unpublished opinion on December 30,

2003. 

On June 21, 2001, Kay applied to the City for a conditional

use permit to allow commercial use of the existing five antennae. In an October 23, 2001 report, City planning staff recommended a conditional grant of his application. At a City

Planning Commission meeting on the same day, the commissioners determined that Kay had lied about his past commercial use of the antennae, but took no further action on the

application. In a November 13, 2001 report, City planning

staff again recommended granting Kay’s application. The

report also noted that after the application was filed, more

antennae were added to the roof of the house. A draft resolution granting Kay’s application for only the five antennae was

12906 KAY v. CITY OF RANCHO PALOS VERDES
proposed. On November 15, 2001, the City Planning Commission issued a resolution denying commercial use of the

rooftop antennae, requiring removal of three of the five antennae, and allowing commercial use of only the internal antennae. 

Kay appealed to the City Council. Before his appeal could

be heard, a district court decision on another challenge to the

City’s commercial broadcast policies caused the City to

amend its antenna regulations.3 On March 19, 2002, City

planning staff again recommended that all five antennae be

approved for commercial use. Finally, on April 16, 2002, the

City Council approved a resolution granting Kay the right to

commercially broadcast from only two of the rooftop antennae. This approval was conditioned on, inter alia, Kay’s

removal of the other three antennae. 

Kay filed suit in the United States District Court for the

Central District of California seeking an order that would

vacate the City’s conditional use permit decision and compel

it to allow him to broadcast commercially from all five antennae. He invoked both the TCA and California state law. He

also asserted a number of other claims in the complaint, three

of which were dismissed by the district court. Kay sought

remedies including an injunction, a writ of mandate, damages

resulting from the partial denial of the conditional use permit,

and attorney’s fees under 42 U.S.C. § 1988(b). The district

court analyzed the City’s CUP decision and determined that

it was not supported by substantial evidence as required by

the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), and California law. It

issued a writ of mandate requiring that the City permit commercial use of all five of Kay’s antennae. The district court

3That case eventually led to the Supreme Court’s first decision related

to the enforcement of and remedies under § 332. See Abrams v. City of

Rancho Palos Verdes, No. 00-9071SVW (RNBX), 2002 WL 34100670

(C.D. Cal. Mar. 18, 2002), rev’d, 354 F.3d 1094 (9th Cir. 2004), rev’d,

544 U.S. 113 (2005). 

KAY v. CITY OF RANCHO PALOS VERDES 12907
denied damages under both California and federal law. Kay

appeals the dismissal of three claims, the denial of damages

under the TCA and state law, and asks that a new judge be

assigned on remand. 

II. DISCUSSION

1. Dismissed Claims

Kay argues that the district court erred by dismissing three

of his claims without prejudice, rather than staying them

under Younger v. Harris, 401 U.S. 37 (1971).4“Abstention by

a district court is required under Younger when three criteria

are satisfied: (1) State judicial proceedings are ongoing; (2)

The proceedings implicate important state interests; and (3)

The state proceedings provide an adequate opportunity to

raise federal questions.” Commc’ns Telesys. Int’l v. Cal. Pub.

Util. Comm’n, 196 F.3d 1011, 1015 (9th Cir. 1999). The parties do not dispute the district court’s determination that

Younger applies to Kay’s claims. Nor do they disagree that

“[w]hen damages are at issue, and comity dictates, courts

should defer” by staying, rather than dismissing, under Younger. Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004)

(en banc). We agree that the district court should have stayed

the claims, but conclude that the dismissed claims are now

barred as a result of the state proceedings that precipitated the

district court’s abstention. 

[1] “[A] federal court must give to a state-court judgment

the same preclusive effect as would be given that judgment

under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465

U.S. 75, 81 (1984). Thus, to determine the preclusive effect

4The three claims are: (1) that the conditional use permit procedures

violate the First Amendment; (2) for violation of California constitutional

guarantees of free expression, due process, and equal protection; and (3)

that the City’s antenna regulations violate the First Amendment. 

12908 KAY v. CITY OF RANCHO PALOS VERDES
of the California state court decision, we apply California law.

“The application of claim preclusion in California focuses on

three questions: (1) was the previous adjudication on the merits, (2) was it final, and (3) does the current dispute involve

the same ‘claim’ or ‘cause of action’?” Robi v. Five Platters,

Inc., 838 F.2d 318, 324 (9th Cir. 1988) (citing Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975)). 

[2] In City of Rancho Palos Verdes v. Kay, No. B157393,

2003 WL 23025571 (Cal. Ct. App. Dec. 30, 2003), the California Court of Appeal squarely addressed the merits of the

three claims dismissed by the district court.5 It held that neither the City’s conditional use permit rules nor its antenna

ordinance runs afoul of the First Amendment or of the California Constitution. Id. at *7-*8. The decision is also final.

“Unlike the federal rule and that of several states, in California the rule is that the finality required to invoke the preclusive bar of res judicata is not achieved until an appeal from

the trial court judgment has been exhausted or the time to

appeal has expired.” Franklin & Franklin v. 7-Eleven Owners

for Fair Franchising, 85 Cal. App. 4th 1168, 1174 (Ct. App.

2000) (citation omitted). The California Court of Appeal

issued the remittitur in Kay’s case on March 4, 2004. The

issuance of the remittitur indicates that the appellate process,

including a potential petition for review to the California

Supreme Court has been exhausted—and thus that the decision has become final. See Rare Coin Galleries, Inc. v. AMark Coin Co., 202 Cal. App. 3d 330, 335-36 (Ct. App.

1988) (discussing remittitur in the context of tolling the statute of limitations). 

The first two requirements for claim preclusion are clearly

satisfied, leaving the third and final question: whether the

state case involved the same claim or cause of action. In this

vein, “California has consistently applied the ‘primary rights’

5Although the Court of Appeal’s decision is unpublished, it may be

cited and relied on for claim preclusion purposes. Cal. R. Ct. 8.1115(b)(1).

KAY v. CITY OF RANCHO PALOS VERDES 12909
theory, under which the invasion of one primary right gives

rise to a single cause of action. As we recently observed, California’s ‘primary rights’ theory does not mean that different

causes of action are involved just because relief may be

obtained under . . . either of two legal theories.” Robi, 838

F.2d at 324 (citations and quotation omitted). “Res judicata

[claim preclusion] prevents litigation of all grounds for, or

defenses to, recovery that were previously available to the

parties, regardless of whether they were asserted or determined in the prior proceeding.” Id. (quoting State Bd. of

Equalization v. Superior Court, 39 Cal. 3d 633, 641 (1985))

(emphasis and alteration in original). 

[3] The primary right at issue here is Kay’s right to be free

of unconstitutional restrictions imposed on his free speech by

the City through its regulation of antennae and the conditional

use permit process. In rejecting Kay’s claims, the California

Court of Appeal addressed various theories by which the City

might be liable for violation of Kay’s First Amendment and

California Constitutional rights. Kay alleged violations of

those same rights in his federal complaint, thus implicating

the same primary right. To the extent that the dismissed

causes of action here could be creatively construed to be different from those that were addressed in Kay’s state action,

the claims could and should have been raised by Kay in that

action. Thus, we hold that Kay is now barred from asserting

his three dismissed claims before the federal courts. 

2. Damages under California Law

[4] Kay submits that the district court erred by holding that

he was not entitled to compensatory damages under California

law. The district court granted Kay only injunctive relief in

the form of a peremptory mandate commanding the City to

“adopt a new resolution allowing Kay to use his five mast

antenna structure for commercial purposes, subject to reasonable conditions.” Writs of mandate are used under California

law “for the purpose of inquiring into the validity of any final

12910 KAY v. CITY OF RANCHO PALOS VERDES
administrative order. . .” CAL. CODE CIV. PROC. § 1094.5(a).

Here, the district court reviewed the final administrative order

in response to Kay’s conditional use permit application, and

“enter[ed] judgment . . . commanding [the City] to set aside

the order or decision.” Id. § 1094.5(f). Under a companion

provision of California law, “[i]f judgment be given for the

applicant, the applicant may recover the damages which the

applicant has sustained . . . and a peremptory mandate must

also be awarded without delay.” Id. section 1095 (emphasis

added). 

[5] The availability of damages under section 1095, however, is limited by California Government Code sections

818.4 and 821.2. State v. Superior Court, 12 Cal. 3d 237, 246

(1974). Section 818.4 provides that “[a] public entity is not

liable for an injury caused by the . . . denial . . . of . . . any

permit . . . or similar authorization where the public entity or

an employee of the public entity is authorized by enactment

to determine whether or not such authorization should be

issued, denied, suspended, or revoked.” Section 821.2 is a

corollary that immunizes public employees for their roles in

the discretionary permit decisions governed by section 818.4.

“The immunity applies only to discretionary activities.” Richards v. Dep’t of Alcoholic Beverages Control, 139 Cal. App.

4th 304, 318 (Ct. App. 2006). The decision whether to issue

a conditional use permit is “discretionary by definition.”

Breakzone Billiards v. City of Torrance, 81 Cal. App. 4th

1205, 1224 (Ct. App. 2000) (citation omitted). 

Kay claims that because he sought only to change the frequency from amateur to commercial use on the antennae, the

City had no discretion to deny the CUP.6 This assertion is

premised on the TCA’s preclusion of municipalities from “regulat[ing] the placement, construction, and modification of

6Although the City eventually granted the CUP as to two of the antennae, we construe the City’s decision as a denial of the permit as to the

three other antennae. 

KAY v. CITY OF RANCHO PALOS VERDES 12911
personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that

such facilities comply with the Commission’s regulations

concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

Because the City had already approved his antennae for noncommercial use, and the switch to commercial use entailed

only a change in radio frequency, Kay argues the City lacked

discretion because it could not consistently with the TCA ever

deny the CUP even in part. 

Kay’s argument is largely based on Thompson v. City of

Lake Elsinore, 18 Cal. App. 4th 49 (Ct. App. 1993). There,

the plaintiff renovated a building in compliance “with all the

appropriate building codes, regulations and requirements,”

and received a “Final Inspection Okay.” Id. at 53. Lake Elsinore nevertheless withheld the issuance of a certificate of

occupancy for the building, allegedly in an attempt to cause

the plaintiff to comply with city demands related to other

properties he owned. Id. The Thompson court explained that

because Lake Elsinore had already exercised its discretion

during the building permit process, it had no discretion to

refuse to perform the purely ministerial duty of issuing the

occupancy permit. Id. at 58. 

Thompson is inapposite. There, Lake Elsinore had already

found that the building at issue complied with all regulations,

and was thus required by law to issue a certificate of occupancy. Id. at 56 (citing Uniform Building Code § 307). For

that reason, the city lacked discretion to deny the certificate,

and damages were available. Here, the City was considering

an application for a permit to use a home in a residential

neighborhood to engage in commercial operations. As the

contentious transcripts from the City hearings demonstrate,

decisions like this are freighted with concerns from neighbors

and City officials intent on maintaining the residential character of the neighborhood. See Breakzone Billiards, 81 Cal.

App. 4th at 1224 (“In considering applications for such permits, a city is obligated to examine permit applications on an

12912 KAY v. CITY OF RANCHO PALOS VERDES
individual basis, applying sound principles of planning and

zoning administration in a fair manner.”). The conditions

attached to the City’s partial approval of the CUP reflect these

sound principles. For example, the City imposed limits on the

times for maintenance work, number of vehicles present at the

property, noise levels, and yard maintenance. 

Kay also relies on City of Rancho Palos Verdes v. Abrams,

101 Cal. App. 4th 367 (Ct. App. 2002), to support his argument that the City was compelled to grant him a CUP. There,

the Court of Appeal struck down an injunction against

Abrams using a previously-approved amateur antenna for

commercial purposes. The Court of Appeal reasoned that “the

only change in Abrams’s operation would be the commercial

use of frequencies allocated and assigned by the FCC.

Because the trial court’s injunction prohibits that use, it is preempted by [the TCA].” Id. at 375. While we agree with the

California Court of Appeal that regulation based solely on the

transmission frequency is verboten, we do not read that preemption as giving amateur broadcasters immunity from local

permit requirements if they decide to switch to commercial

broadcasting on existing antennae. As discussed in Breakzone

Billiards and reflected in the use permit conditions above,

there are numerous legitimate local concerns implicated by a

commercial operation that do not attach to amateur use, and

which have nothing to do with “the environmental effects of

radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

There are situations in which a municipality may deny, for

reasons related to the impact of a commercial operation on the

neighborhood, a permit for an amateur broadcaster to operate

commercially. Cf. Tenn. ex rel. Wireless Income Props., LLC

v. City of Chattanooga, 403 F.3d 392, 398 (6th Cir. 2005)

(“The TCA does not preempt all authority of state or local

governments over the regulation of wireless towers.”); Nat’l

Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14,

19 (1st Cir. 2002) (“The [TCA] attempts, subject to five limitations, to preserve state and local authority over the placement and construction of facilities.”). 

KAY v. CITY OF RANCHO PALOS VERDES 12913
[6] While the record suggests that the denial of Kay’s permit may have been driven at least in part by animus on the

part of City officials, the record also shows that the City was

exercising its discretion as part of its planning and administrative duties. For that reason, we hold that the City’s decision

to deny Kay’s CUP was discretionary, and that his remedies

under California law are limited to the peremptory writ

already granted by the district court. 

3. Damages under the Telecommunications Act

Nor did the district court err by holding that Kay was not

entitled to compensatory damages under the TCA. Congress

explicitly created, and Kay sued under, a private right of

action in the TCA:

Any person adversely affected by any final action or

failure to act by a State or local government or any

instrumentality thereof that is inconsistent with this

subparagraph may, within 30 days after such action

or failure to act, commence an action in any court of

competent jurisdiction. The court shall hear and

decide such action on an expedited basis. Any person adversely affected by an act or failure to act by

a State or local government or any instrumentality

thereof that is inconsistent with clause (iv) may petition the Commission for relief. 

47 U.S.C. § 332(c)(7)(B)(v). The district court held in Kay’s

favor on his TCA claim, but did not explicitly grant him a

remedy under the TCA.7 Section 332 of the TCA does not

7Both Kay’s TCA and California law claims involve an identical substantial evidence review of the City’s decision. See MetroPCS, Inc. v. City

and County of San Francisco, 400 F.3d 715, 723 (9th Cir. 2005); Topanga

Ass’n for a Scenic Cmty. v. County of Los Angeles, 11 Cal.3d 506, 514-15

(1974). The district court found for Kay on both causes of action, but the

sole remedy granted was the state law remedy of a peremptory writ of

mandate under California Code of Civil Procedure section 1095. 

12914 KAY v. CITY OF RANCHO PALOS VERDES
specify the remedies available to successful litigants, and no

circuit court of appeals has squarely addressed the availability

of compensatory damages as a remedy. The Supreme Court,

however, has provided some guidance, both in the context of

attempted use of the Civil Rights Act of 1871, 42 U.S.C.

§ 1983 to enforce § 332 of the TCA, and more generally in

the context of statutes that are silent on available remedies. 

A. Section 1983

[7] The Supreme Court recently held that “the TCA — by

providing a judicial remedy different from § 1983 in

§ 332(c)(7) itself — precluded resort to § 1983,” to enforce

violations of § 332. City of Rancho Palos Verdes v. Abrams,

544 U.S. 113, 127 (2005). The Court of Appeals’ decision had

reached the opposite conclusion, holding that money damages

and attorney’s fees were available for TCA violations

enforced through a § 1983 action. Id. at 119 (discussing

Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th

Cir. 2004)). Writing for the Court, Justice Scalia briefly noted

portions of § 332 that create a thirty-day window for appeals

and the requirement of expedited judicial review as examples

that the “TCA . . . adds no remedies to those available under

§ 1983, and limits relief in ways that § 1983 does not.” Id. at

122. “The remedies available [under § 332], moreover, perhaps do not include compensatory damages (the lower courts

are seemingly in disagreement on this point), and certainly do

not include attorney’s fees and costs.” Id. at 122-23 (footnotes

omitted).8 The Court noted that “[l]iability for attorney’s fees

would have a particularly severe impact in the § 332(c)(7)

8The Court cited PrimeCo Personal Communications, Ltd. v. City of

Mequon, 352 F.3d 1147 (7th Cir. 2003), for the proposition that some

courts have held that damages were available. However, PrimeCo merely

recognized, as the Supreme Court later did in Abrams, that the TCA created an enforcement mechanism in § 332 and that 42 U.S.C. § 1983 was

not a proper enforcement vehicle. PrimeCo, 352 F.3d at 1152-53. At most,

PrimeCo assumed without deciding that damages would be available in a

direct § 332 cause of action. Id.

KAY v. CITY OF RANCHO PALOS VERDES 12915
context, making local governments liable for the (often substantial) legal expenses of large commercial interests for the

misapplication of a complex and novel statutory scheme.” Id.

at 123 (citing Nextel Partners Inc. v. Kingston Township, 286

F.3d 687, 695 (3d Cir. 2002) (“TCA plaintiffs are often large

corporations or affiliated entities, whereas TCA defendants

are often small, rural municipalities.”). Justice Breyer, joined

by Justices O’Connor, Souter, and Ginsburg concurred, and

pointed out that the quasi-administrative nature of review

under § 332 meant that “to permit § 1983 actions . . . would

undermine the compromise — between purely federal and

purely local . . . policies — that the statute reflects.” Id. at

128-29. Finally, Justice Stevens, writing alone, concurred and

expressed the view that “there is not a shred of evidence in the

legislative history suggesting that . . . Congress intended

plaintiffs to be able to recover damages and attorney’s fees.”

Id. at 130. Justice Stevens further stressed “the fact that

awards of damages and attorney’s fees could have potentially

disastrous consequences for the likely defendants in most private actions under the TCA.” Id. at 132. 

While the Supreme Court has not ruled on the availability

of damages in suits directly under § 332, the concerns

expressed in Abrams about the structure and nature of the

TCA and Congress’s intent in passing the law pertain as much

to suits directly under § 332 as they do to suits seeking remedies via § 1983. With these concerns in mind, we examine the

availability of compensatory damages. 

B. TCA Remedies

“[I]t is . . . well settled that where legal rights have been

invaded, and a federal statute provides for a general right to

sue for such invasion, federal courts may use any available

remedy to make good the wrong done.” Bell v. Hood, 327

U.S. 678, 684 (1946). The Court has subsequently explained

that “the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to

12916 KAY v. CITY OF RANCHO PALOS VERDES
a federal statute,” Franklin v. Gwinnett County Pub. Schs.,

503 U.S. 60, 71 (1992), and that “denial of a remedy [is] the

exception rather than the rule,” id. At the same time, it is critical that when deciding which remedies are appropriate in a

given situation, we attempt to “infer how . . . Congress would

have addressed the issue” if it had done so at the time the law

was passed. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 285 (1998) (quoting Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 178 (1994)).

In Franklin, the Court examined a district court’s dismissal of

a Title IX damages action for failure to state a claim, 503 U.S.

at 64, and remanded after holding that a damages remedy was

appropriate and consistent with the intent of Title IX, id. at

71-76. The Court narrowed this broad rule in Gebser, again

examining the purpose and intent behind Title IX, and limiting the circumstances under which damages were an appropriate remedy. 524 U.S. at 292-93. To determine whether

damages are appropriate here, we examine Congress’s intent

and the structure of § 332. 

1. Stated Intent

[8] As in Franklin, we first examine whether Congress

intended to limit the remedies available for violations of

§ 332. 503 U.S. at 71. We have no statement of congressional

intent on the question of remedies in the legislative history.

See Abrams, 544 U.S. at 130 (Stevens, J., concurring). However, unlike the implied Title IX cause of action in Franklin

and Gebser, here we have some legislative history discussing

the remedial structure created by the statute. Section

332(c)(7), captioned “[p]reservation of local zoning authority,” was intended to minimize federal interference with State

and local land use decisions. See H.R. Conf. Rep. No. 104-

458, at 207-08 (1996) (hereinafter “Conference Report”)

(“The conference agreement . . . preserves the authority of

State and local governments over zoning and land use matters

except in the limited circumstances set forth in the conference

agreement.”). 

KAY v. CITY OF RANCHO PALOS VERDES 12917
[9] Because TCA plaintiffs are often large telecommunications companies, it is likely that the damages attributed by

them to adverse zoning or permitting decisions will be substantial, particularly from the viewpoint of a municipality. See

Abrams, 544 U.S. at 123. This potential for large damages

claims, even if they are not ultimately awarded, suggests that

Congress did not intend to create a damages remedy. Just like

the attorney’s fees addressed by the Court in Abrams, there is

a real danger here that a damages remedy “would have a particularly severe impact in the § 332(c)(7) context, making

local governments liable for the (often substantial) [damages]

of large commercial interests for the misapplication of a complex and novel statutory scheme.” Id. The specter of large

damages claims, and the expensive litigation recognized in

Abrams, could easily intimidate local authorities into effectively abdicating their zoning and permitting powers when

confronted with an application from a wireless service provider.9

Nor do we find that the requirement that courts “hear and

decide such action on an expedited basis,” 47 U.S.C.

§ 332(c)(7)(B)(v), cuts against this view, as the Nextel Partners court mused in passing. 286 F.3d at 695 (“For defendants, assuming for the sake of argument that damages may

be recovered under the TCA itself, quick review may diminish the amount that may be recovered.”) (footnote omitted). In

the Central District of California, where Kay filed his action,

the median time from the filing of a complaint to disposition

of the case after a trial is 23.9 months. Administrative Office

of the United States Courts, Federal Judicial Caseload Statistics tbl. C-5 (March 31, 2006). Partially due to the intervening

Abrams decision, the City took almost a year to decide Kay’s

permit application, and the district court took another two

years to hold a bench trial and rule on the merits of the permit

issue. This kind of schedule for the resolution of a civil case,

9As discussed in the context of Kay’s state damages claim, local zoning

and permitting authorities are normally immune from damages under state

law. 

12918 KAY v. CITY OF RANCHO PALOS VERDES
even on an expedited basis, is typical. It is unrealistic to

expect any case involving administrative review to wend its

way through our district courts, let alone the appellate process, in a manner that is speedy enough to meaningfully stave

off the accumulation of damages. 

[10] Congress sought to preserve local authority while also

providing a federal forum for the review of certain zoning and

permitting decisions without further need to exhaust “any

independent State court remedy otherwise required.” Conference Report at 209. A damages remedy does not further that

purpose, and could potentially frustrate it. 

2. Administrative Nature of Review

Several features of section § 332(c)(7) are borrowed from

state zoning and administrative review laws. Zoning and permitting decisions are made by municipalities like the City or

other regional authorities. Every state provides for review of

such agency decisions through an appeal or writ of certiorari

to the state courts, and most provide a short time frame in

which to file an appeal; thirty-two of those states have a

thirty-day appeal period.10 The TCA adopts a similar thirtyday appeal period. 47 U.S.C. § 332(c)(7)(B)(v). The language

used by Congress closely mirrors many of those same state

laws, allowing “[a]ny person adversely affected by any final

action or failure to act” to seek aid from the courts. Id. The

TCA also requires that zoning decisions by state and local

authorities be “in writing and supported by substantial evidence contained in a written record.” 47 U.S.C.

§ 332(c)(7)(B)(iii). Congress explained that it used this phrase

to reflect “the traditional standard used for judicial review of

agency actions.” Conference Report at 208. Most states also

apply a similarly deferential standard of review to appeals

from local zoning and permitting agency decisions. See

10Thirty days is the mode, but some states give as few as ten days or as

many as ninety days to appeal. See Appendix A. 

KAY v. CITY OF RANCHO PALOS VERDES 12919
Appendix B. Most states also have statutory schemes similar

to that in California, which immunize state zoning and permitting agencies from damages when their decisions are overturned on appeal. See Appendix C. 

Congress’s creation of a quasi-administrative review process for zoning and permitting decisions in the TCA that mirrors that of the states suggests that the appropriate remedies

under that review process should also mirror those available

under state law.11

* * *

[11] The legislative history, structure, and nature of the

rights and the review process provided in § 332(c)(7) demonstrate the congressional intent to create a federal administrative review process analogous to state zoning reviews, and not

a more general enforcement mechanism. Therefore, we hold

that damages are not an appropriate remedy for violations of

§ 332.12

11The federal Administrative Procedure Act similarly limits the review

of federal agency actions to those that do not involve claims of monetary

damages. See 5 U.S.C. § 702. 

12This holding is consistent with the holdings of our sister circuits that,

even though they do not address the question of damages, recognize the

availability of injunctive relief for violations of § 332. See, e.g., Wireless

Income Props., 403 F.3d at 399 (“[W]e have repeatedly concluded that

where the defendant denied a permit application . . . the proper remedy is

injunctive relief compelling the defendant to issue the requested permit.”);

Nat’l Tower, 297 F.3d at 21-22 (“Instead, in the majority of cases the

proper remedy for a zoning board decision that violates the Act will be an

order . . . instructing the board to authorize construction.”) (citations omitted); Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th

Cir. 2002) (“We conclude an injunction ordering issuance of a permit is

an appropriate remedy for a violation of [the TCA].”); Cellular Tel. Co.

v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999) (noting that

injunctive relief fits with the TCA’s stated goal of expediting the resolution of disputes). 

12920 KAY v. CITY OF RANCHO PALOS VERDES
III. CONCLUSION

We hold that Kay’s three dismissed claims are barred by

claim preclusion, that the City is immune from damages under

California law, and that § 332 of the TCA does not provide

a damages remedy.13

AFFIRMED.

13Because we affirm the district court, we do not address Kay’s request

for assignment to a different judge on remand. 

KAY v. CITY OF RANCHO PALOS VERDES 12921
APPENDIX14

A.

Ala. Code § 11-52-81 (15 days); Alaska Stat. § 29.40.060

(time to appeal set by assembly); Ariz. Rev. Stat. Ann. § 12-

904 (35 days); Ark. Code Ann. § 14-56-425 (30 days); Cal.

Gov’t Code § 65009(c)(1) (90 days); Colo. R. Civ. P. 106(b)

(30 days); Conn. Gen. Stat. § 8-8(b) (15 days); Del. Code

Ann. tit. 38 § 328(a) (30 days); Fla. Stat. § 120.68 (30 days);

Ga. Code § 5-3-20 (30 days); Haw. Rev. Stat. § 91-14 (30

days); Idaho Code Ann. § 65-6519(4) (28 days); 735 Ill.

Comp. Stat. 5/3-103 (35 days); Ind. Code § 36-7-4-1003 (30

days); Iowa Code § 335.18 (30 days); Kan. Stat. Ann. § 19-

223 (30 days); Ky. Rev. Stat. Ann. § 100.347 (30 days); La.

Rev. Stat. Ann. § 33:4727 (30 days); Me. Rev. Stat. Ann. tit.

5 § 11002 (30 days); Md. Cir. Ct. R. 7-203 (30 days); Mass.

Gen. Laws ch. 40A, § 17 (20 days); Mich. Comp. Laws

§ 125.3606 (30 days); Minn. Stat. § 394.27 (30 days); Miss.

Code § 11-51-75 (10 days); Mo. Rev. Stat. § 89.110 (30

days); Mont. Code Ann. § 76-2-327 (30 days); Neb. Rev. Stat.

§ 14-413 (30 days); Nev. Rev. Stat. § 14-413 (25 days); N.H.

Rev. Stat. Ann. § 677:4 (30 days); N.J. Ct. R. 4:69-6 (30

days); N.M. Stat. § 39-3-1.1 (30 days); N.Y. Town Law

§ 267-c (30 days); N.C. Gen. Stat. § 160A-388(e2) (30 days);

N.D. Cent. Code § 28-34-01 (30 days); Ohio Rev. Code Ann.

§ 2505.07 (30 days); Okla. Stat. tit. 11, § 44-110 (time to

appeal to be determined by local ordinance); Or. Rev. Stat.

§ 197.850 (21 days); 53 Pa. Cons. Stat. § 11002-A (30 days);

R.I. Gen. Laws § 45-24-69 (20 days); S.C. Code Ann. § 6-29-

820 (30 days); S.D. Codified Laws § 11-2-61 (30 days); Tenn.

Code Ann. § 27-9-102 (60 days); Tex. Loc. Gov’t Code Ann.

§ 211.011 (10 days); Utah Code Ann. § 10-9a-801 (30 days);

Vt. R. Env’t Ct. Proc. R. 5 (30 days); Va. Code Ann. § 15.2-

2314 (30 days); Wash. Rev. Code § 36.70C.040 (21 days); W.

14All code sections listed in this appendix are current as of the date of

filing of this opinion. 

12922 KAY v. CITY OF RANCHO PALOS VERDES
Va. Code § 8A 9-1 (30 days); Wis. Stat. § 59.694 (30 days);

Wyo. R. App. P. 12.04 (30 days). 

B.

Ala. Code § 11-52-81 (de novo); South Anchorage Concerned

Coalition, Inc. v. Coffey, 862 P.2d 168, 173 (Alaska 1993)

(substantial evidence); Murphy v. Town of Chino Valley, 789

P.2d 1072, 1077 (Ariz. Ct. App.1989) (substantial evidence);

Ark. Code Ann. § 14-56-425 (de novo); Topanga Ass’n for a

Scenic Cmty v. County of Los Angeles, 11 Cal.3d 506, 514-15

(1974) (substantial evidence); Colo. R. Civ. P. 106(b) (abuse

of discretion); Bloom v. Zoning Bd. of Appeals, 658 A.2d 559,

563 (Conn. 1995) (abuse of discretion); Searles v. Darling, 83

A.2d 96, 99 (Del. 1951) (substantial evidence); Fla. Stat.

§ 120.68 (substantial evidence); Jackson v. Spalding County,

265 Ga. 792, 462 S.E.2d 361, 364 (1995) (abuse of discretion); Haw. Rev. Stat. § 91-14 (abuse of discretion); Sanders

Orchard v. Gem County ex rel. Bd. of County Comm’rs, 52

P.3d 840, 843 (Idaho 2002) (substantial evidence or abuse of

discretion); Menning v. Dep’t of Registration & Educ., 153

N.E.2d 52, 55 (Ill. 1958) (substantial evidence); Carlton v.

Bd. of Zoning Appeals, 245 N.E.2d 337, 343-44 (Ind. 1969)

(substantial evidence or abuse of discretion); Martin Marietta

Materials, Inc. v. Dallas County, 675 N.W.2d 544, 551 (Iowa

2004) (substantial evidence); Combined Inv. Co. v. Bd. of

County Comm’rs, 605 P.2d 533, 543 (Kan. 1980) (substantial

evidence); Am. Beauty Homes Corp. v. Louisville & Jefferson

County Planning and Zoning Comm’n, 379 S.W.2d 450, 456

(Ky.1964) (substantial evidence); Coliseum Square Ass’n,

Inc. v. Bd. of Zoning Adjustments, 374 So.2d 177, 179 (La. Ct.

App. 1979) (abuse of discretion); Lippoth v. Zoning Bd. of

Appeals, 311 A.2d 552, 557 (Me. 1973) (reasonableness);

Stansbury v. Jones, 812 A.2d 312, 318-19 (Md. 2002) (substantial evidence); Gulf Oil Corp. v. Bd. of Appeals, 244

N.E.2d 311, 313 (Mass. 1969) (unreasonable, whimsical,

capricious, or arbitrary); Mich. Comp. Laws § 125.3606 (substantial evidence); Honn v. City of Coon Rapids, 313 N.W.2d

KAY v. CITY OF RANCHO PALOS VERDES 12923
409, 414 (Minn. 1981) (substantial evidence); Barnes v. Bd.

of Supervisors, 553 So.2d 508, 511 (Miss. 1989) (substantial

evidence); State ex rel. Teefey v. Bd. of Zoning Adjustment, 24

S.W.3d 681, 684 (Mo. 2000) (en banc) (substantial evidence);

Sutey Oil Co. v. Anaconda-Deer Lodge County Planning Bd.,

959 P.2d 496, 499 (Mont. 1998) (abuse of discretion); Stratbucker Children’s Trust v. Zoning Bd. of Appeals, 497

N.W.2d 671, 674 (Neb. 1993) (arbitrary, unreasonable, or

clearly wrong); Nevada Contractors v. Washoe County, 792

P.2d 31, 33 (Nev. 1990) (substantial evidence); Harrington v.

Town of Warner, 872 A.2d 990, 994(N.H. 2005) (reasonableness); New Brunswick Cellular Tel. Co. v. Township of Edison Zoning Bd. of Adjustment, 693 A.2d 180, 184 (N.J. Sup.

Ct. Law Div. 1997) (substantial evidence); N.M. Stat. § 39-3-

1.1 (substantial evidence or arbitrary or capricious); Doyle v.

Amster, 594 N.E.2d 911, 913 (N.Y. 1992) (substantial evidence); Butler v. City Council of City of Clinton, 584 S.E.2d

103, 105 (N.C. App. 2003) (substantial evidence); City of

Fargo v. Ness, 529 N.W.2d 572, 576 (N.D. 1995) (arbitrary,

capricious, or unreasonable); Ohio Rev. Code Ann. § 2506.04

(“arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence

on the whole record”); Wetherell v. Douglas County, 146 P.3d

343, 344 (Or. Ct. App. 2006) (substantial evidence); Valley

View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637,

639-40 (Pa. 1983) (substantial evidence); Apostolou v.

Genovesi, 388 A.2d 821, 824 (R.I. 1978) (substantial evidence); Peterson Outdoor Advert. v. City of Myrtle Beach,

489 S.E.2d 630, 632-33 (S.C. 1997) (substantial evidence);

Even v. City of Parker, 597 N.W.2d 670, 673 (S.D. 1999)

(substantial evidence); Estate of Street v. State Bd. of Equalization, 812 S.W.2d 583, 585-86 (Tenn. Ct. App. 1990) (substantial evidence); Pearce v. City of Round Rock, 78 S.W.3d

642, 646 (Tex. App. 2002) (abuse of discretion); Rogers v.

West Valley City, 142 P.3d 554, 556 (Utah Ct. App. 2006)

(substantial evidence); In re S-S Corporation/Rooney Hous.

Devs., 896 A.2d 67, 70 (Vt. 2006); Foster v. Geller, 449

12924 KAY v. CITY OF RANCHO PALOS VERDES
S.E.2d 802, 804-05 (Va. 1994) (plainly wrong); Cingular

Wireless, LLC v. Thurston County, 129 P.3d 300, 305-06

(Wash. Ct. App. 2006) (substantial evidence); Maplewood

Estates Homeowners Ass’n v. Putnam County Planning

Comm’n, 629 S.E.2d 778, 782 (W. Va. 2006) (substantial evidence); Sills v. Walworth County Land Mgmt. Comm., 648

N.W.2d 878, 883 (Wis. Ct. App. 2002) (substantial evidence);

Donaghy v. Bd. of Adjustment of City of Green River, 55 P.3d

707, 710 (Wyo. 2002) (substantial evidence). 

C.

Alaska Stat. § 09.65.070; Ark. Code Ann. § 21-9-301 (limiting liability to scope of insurance coverage); Cal. Gov’t Code

§ 818.4; Colo. Rev. Stat. § 24-20-106; Conn. Gen. Stat. § 52-

557n; Del. Code Ann. tit. 10 § 4011; Akin v. City of Miami,

65 So.2d 54, 55 (Fla. 1953); Ga. Code § 36-33-1; Haw. Rev.

Stat. § 662-15; Idaho Code Ann. § 6-904B; 745 Ill. Comp.

Stat. 10/2-104; Ind. Code § 34-13-3-3; Kan. Stat. Ann. § 75-

6104; Ky. Rev. Stat. Ann. § 65.2003; La. Rev. Stat. Ann.

§ 9:2798.1; Me. Rev. Stat. Ann. tit. 14 § 8104-B; Mass. Gen.

Laws ch. 258, § 10; Mich. Comp. Laws § 691.1407; Minn.

Stat. § 466.03; Miss. Code § 11-46-3; Neb. Rev. Stat. § 13-

910; Nev. Rev. Stat. § 278.0233 (allowing damages in limited

circumstances); N.J. Stat. Ann. § 59:2-5; N.M. Stat. § 41-4-4;

Rottkamp v. Young, 249 N.Y.S.2d 330 (N.Y. App. Div. 1964),

aff’d, 205 N.E.2d 866 (N.Y. 1965); N.D. Cent. Code § 32-

12.1-03; Okla. Stat. tit. 51, § 155; Or. Rev. Stat. § 30.265; 42

Pa. Cons. Stat. §§ 8541, 8542; R.I. Gen. Laws § 9-31-1 (limiting, but not totally foreclosing damages); S.C. Code. Ann.

§ 15-78-60; S.D. Codified Laws §§ 21-32A-1, 21-32A-3 (limiting liability to scope of insurance coverage); Tenn. Code

Ann. §§ 29-20-201, 29-20-205; Utah Code Ann. § 63-30d301; Wash. Rev. Code § 64.40.020 (allowing damages in limited circumstances); W. Va. Code § 29-12A-5; Wis. Stat.

§ 893.80; Wyo. Stat. Ann. § 1-39-104.

KAY v. CITY OF RANCHO PALOS VERDES 12925