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 
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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 47 U.S.C. § 332(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., 440 

F.3d 541, 543 (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. 
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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 
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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 47 U.S.C. § 332(c)(7); 

Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 45-47 

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

Appeals, 297 F.3d 14, 19-20 (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 47 U.S.C. § 332(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 

1 We 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. 
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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, 2020 WL 3270878, 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 

id. at *5-8. 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. 
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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, 528 F.3d 15, 21 (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, 887 F.2d 338, 343 (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), 

746 F.3d 30, 35 (1st Cir. 2014); Cotter v. Mass. Ass'n of Minority 

Law Enf't Officers, 219 F.3d 31, 34 (1st Cir. 2000). 

We add, though, that in the Rule 24(a) context, abuseof-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, 219 F.3d at 34. 

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 
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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, 634 F.3d 46, 51 (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, 219 F.3d at 34. 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, 521 F.3d 60, 64 (1st Cir. 2008); cf. R & G Mortg. Corp. v. 

Fed. Home Loan Mortg. Corp., 584 F.3d 1, 12 (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, 

528 F.3d at 23)). 
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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, 634 F.3d at 51 & n.4; cf. Geiger, 521 F.3d 

at 64-65 (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., 584 

F.3d at 7. 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, 634 F.3d at 50-51; Pub. Serv. 

Co. of N.H. v. Patch, 136 F.3d 197, 204 (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. 
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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., 807 F.3d 472, 475 (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, 966 F.2d 39, 44 (1st 

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

see Patch, 136 F.3d at 207 (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. Id. 

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, 807 

F.3d at 475; B. Fernández, 440 F.3d at 546. So, too, when a wouldbe 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., 262 F.3d 13, 19 (1st Cir. 2001); Daggett v. 

Comm'n on Governmental Ethics & Election Practices, 172 F.3d 104, 

111 (1st Cir. 1999); Patch, 136 F.3d at 207. 
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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 landuse 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, noholds-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, 197 F.3d 560, 567 (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, 136 F.3d at 

207 (quoting United States v. Hooker Chems. & Plastics Corp., 749 

F.2d 968, 985 (2d Cir. 1984)); see B. Fernández, 440 F.3d at 546 

(explaining that putative intervenor must "offer 'an adequate 

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

insufficient (quoting Maine, 262 F.3d at 19)). Such a showing 

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

to the purported inadequacy' of representation." Students for 

Fair Admissions, 807 F.3d at 475 (quoting Moosehead Sanitary Dist. 
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v. S. G. Phillips Corp., 610 F.2d 49, 54 (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, 696 F.2d 141, 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., 953 F.2d 17, 21 (1st Cir. 1992). 
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(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 
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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, 

172 F.3d at 113. The court "enjoys very broad discretion in 

granting or denying [such a] motion." Id. 

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 upsidedown: 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, 469 N.E.2d 501, 503 (Mass. App. Ct. 1984) 

(explaining that abutters who opposed site plan did not qualify as 
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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), 965 F.2d 1136, 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, 172 F.3d at 113. 

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, 895 F.2d 1, 17 (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" 
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(quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (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 47 U.S.C. 

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

actions] on an expedited basis"); Omnipoint Holdings, 586 F.3d at 

47 (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, 172 F.3d at 113 (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 id. 

(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). 
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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, 884 F.2d 629, 641 (1st Cir. 

1989); Int'l Paper, 887 F.2d at 343. 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.