REMEDY

The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.

City of Rancho Palos Verdes v. Abrams

In City of Rancho Palos Verdes v. Abrams, 544 U.S. __, 125 S.Ct. 26, 159 L.Ed.2d 856 (2005), the U.S. Supreme Court considered whether a plaintiff who demonstrates enforceable rights under both the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, and 42 U.S.C. §1983, each of which provides a different remedy, can bring an action under both. The Court thought not. It held that an express, private means of redress in the statute itself ordinarily indicates that Congress did not intend to leave open a remedy under 42 U.S.C. §1983 as well. Therefore, the plaintiff in this case could not enforce limitations on a local zoning authority found in the Telecommunications Act through a §1983 action.

Plaintiff Mark Abrams owned a home in a low-density residential neighborhood in the City of Rancho Palos Verdes, California ("City"). In addition to being attractively scenic, his property's high elevation made it ideal for radio transmission. In 1989, Abrams obtained a City permit to construct a 52-foot antenna tower on his property for his amateur radio use. Over the next several years, he installed several other smaller tripod antennae on his property but did not apply for any additional permits for those installations. He used the antennae for both commercial and non-commercial applications.

In 1998, Abrams applied for a permit for a second high antenna tower. During routine review and investigation of the site pursuant to that application, the City discovered that Abrams had been using his existing antennae for commercial use. This was in violation of a City ordinance requiring a "conditional use" permit for such use. The City filed suit to enjoin Abrams from using the antennae for commercial purposes.

Two weeks later, Abrams filed an application for the required conditional use permit. After two hearings and a review of written evidence (including strong opposition from Abrams' neighbors), the City's zoning commission denied the permit. The commission cited "adverse visual impact" and a desire to avoid setting precedent for similar projects in other residential areas as its reasons for the denial.

In 2000, Abrams filed suit against the City in the U.S. District Court for the Central District of California. He alleged, inter alia, that, in denying his permit, the City had exceeded limitations placed on its zoning authority by the Telecommunications Act of 1996. In relevant part, Section 332(c)(7)(B)(i) of the Act prohibits local governments from unreasonably discriminating among providers of functionally equivalent services; from taking actions that "prohibit or have the effect of prohibiting the provision of personal wireless services"; or from limiting the placement of wireless facilities "on the basis of the environmental effects of radio frequency emissions." The Act further provides that any person who is adversely affected "may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction."

Separately, 42 U.S.C. §1983 relevantly provides a right of redress to any person who has been deprived—by any other person ostensibly acting under color of law , ordinance, regulation, custom or usage—of any rights, privileges, or immunities secured by the Constitution and laws. Abrams alleged causes of action under both provisions, requesting monetary damages and attorney's fees under Section 1983 and injunctive relief under the Telecommunications Act.

The district court agreed with Abrams in finding that the City had failed to provide sufficient or meaningful evidence to support its denial. The court concluded that the City's denial was tantamount to "an act of spite by the community." It ordered the City to grant a conditional use permit to Abrams, but it also denied relief under 42 U.S.C. 1983, concluding that Section 332(c)(7)(B) of the Telecommunications Act provided an exclusive remedy for the City's adverse actions.

The U.S. Court of Appeals for the Ninth Circuit reversed on that point and remanded to the district court for a determination of money damages and attorney's fees under 42 U.S.C. §1983. The City appealed. The critical question going forward to the U.S. Supreme Court was whether Congress had intended the remedy authorized under Section 332(c)(7)(B) of the Telecommunications Act to be an exclusive remedy, albeit coexisting with alternate remedies under 42 U.S.C. §1983.

In reversing the Ninth Circuit, Justice Scalia, writing for the Court, first noted that the provision of an express, private means of redress within a statute usually indicates that Congress did not intend to leave open a more general or expansive remedy under Section 1983. The Court further noted that in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), it had written that "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others."

The high court then discussed the rationale behind the Ninth Circuit's conclusion to the contrary. The Ninth Circuit had interpreted the TCA's "savings clause" as an express statement of Congress's intent to not preclude §1983 actions. The relevant provision within the TCA states,

(1) NO IMPLIED EFFECT:"—This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, state, or local law unless expressly so provided in such Act or amendments."

However, as the Supreme Court explained, even where a plaintiff demonstrates that a federal statute has created an enforceable right in a class of beneficiaries to which he belongs, a defendant may rebut the presumption that the right is enforceable under §1983. This can be done by showing a congressional intent from the statute's creation of a "comprehensive remedial scheme that is inconsistent with individual enforcement under Section 1983" (quoting Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 [1997]). Congress could not have intended the judicial remedy expressly authorized under TCA's Section 332(c)(7)(B) to co-exist with an alternative remedy under Section 1983, since enforcement of the former, by using the latter, would distort the scheme of expedited judicial review and limited remedies created by 332(c)(7)(B)(v).

Justice Breyer, joined by Justices O'Connor, Souter, and Ginsburg, concurred in a separate opinion. The concurring opinion essentially noted that the Court "wisely reject[ed] the Government's proposed rule that the availability of a private judicial remedy "conclusively establishes…a congressional intent to preclude [Section 1983] relief." "Instead, the concurring opinion agreed with the Court"s more prudent "general guidance" on the matter. Justice Stevens wrote a separate opinion, concurring in the judgment only.

REMEDY

The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.

The law of remedies is concerned with the character and extent of relief to which an individual who has brought a legal action is entitled once the appropriate court procedure has been followed, and the individual has established that he or she has a substantive right that has been infringed by the defendant.

Categorized according to their purpose, the four basic types of judicial remedies are (1) damages; (2) restitution; (3) coercive remedies; and (4) declaratory remedies.

The remedy of damages is generally intended to compensate the injured party for any harm he or she has suffered. This kind of damages is ordinarily known as compensatory damages. Money is substituted for that which the plaintiff has lost or suffered. Nominal damages, generally a few cents or one dollar, are awarded to protect a right of a plaintiff even though he or she has suffered no actual harm. The theory underlying the award of punitive damages is different since they are imposed upon the defendant in order to deter or punish him or her, rather than to compensate the plaintiff.

The remedy of restitution is designed to restore the plaintiff to the position he or she occupied before his or her rights were violated. It is ordinarily measured by the defendant's gains, as opposed to the plaintiff's losses, in order to prevent the defendant from being unjustly enriched by the wrong. The remedy of restitution can result in either a pecuniary recovery or in the recovery of property.

Coercive remedies are orders by the court to force the defendant to do, or to refrain from doing, something to the plaintiff. An injunction backed by the contempt power is one kind of coercive remedy. When issuing this type of remedy, the court commands the defendant to act, or to refrain from acting, in a certain way. In the event that the defendant willfully disobeys, he or she might be jailed, fined, or otherwise punished for contempt. A decree for specific performance commands the defendant to perform his or her part of a contract after a breach thereof has been established. It is issued only in cases where the subject matter of a contract is unique.

Declaratory remedies are sought when a plaintiff wishes to be made aware of what the law is, what it means, or whether or not it is constitutional, so that he or she will be able to take appropriate action. The main purpose of this kind of remedy is to determine an individual's rights in a particular situation.

Nature of Remedies

Remedies are also categorized as equitable or legal in nature.

Monetary damages awarded to a plaintiff because they adequately compensate him or her for the loss are considered a legal remedy. An equitable remedy is one in which a recovery of money would be an inadequate form of relief.

Courts design equitable remedies to do justice in specific situations where money does not provide complete relief to individuals who have been injured. Injunctions, decrees of specific performance, declaratory judgments, and constructive trusts are typical examples of some kinds of equitable remedies. Restitution is regarded as either a legal or equitable remedy, depending upon the nature of the property restored.

The distinction between legal and equitable remedies originally came about because courts of law only had the power to grant legal remedies, whereas courts of equity granted equitable remedies to do justice in situations where money would be inadequate relief. The courts of law and the courts of equity have merged, but the distinction still has some importance because in a number of courts, a trial by jury is either granted or refused, according to whether the remedy sought is legal or equitable. When a legal remedy is sought, the plaintiff is entitled to a jury trial, but this is not true when an equitable remedy is requested.

Sometimes a plaintiff might have both legal and equitable remedies available for the redress of personal grievances. In such a case, a plaintiff might have to exercise an election of remedies.

Provisional Remedies

A provisional remedy is one that is adapted to meet a specific emergency. It is the temporary process available to the plaintiff in a civil action that protects him or her against loss, irreparable injury, or dissipation of the property while the action is pending. Some types of provisional remedies are injunction, receivership, arrest, attachment, and garnishment.

rem·e·dy / ˈremədē/ • n. (pl. -dies) 1. a medicine or treatment for a disease or injury: herbal remedies for aches and pains. ∎  a means of counteracting or eliminating something undesirable: shopping became a remedy for personal problems. ∎  a means of legal reparation: the doctrine took away their only remedy against merchants who refused to honor their contracts.2. the margin within which coins as minted may differ from the standard fineness and weight.• v. (-dies, -died) [tr.] set right (an undesirable situation): by the time a problem becomes patently obvious, it may be almost too late to remedy it.DERIVATIVES: re·me·di·a·ble / riˈmēdēəbəl/ adj.rem·e·di·less adj.

remedy cure for disease; redress, relief XIII; legal redress; small margin within which coins as minted are allowed to vary from the standard XV. — AN. remedie = (O)F. remède — L. remedium medicine, means of relief, in medL. concession, f. RE- + med-, stem of medērī heal.
So remedial XVII. — late L. remediālis remedy vb. XV. — (O)F. remédier or late L. remediāre.

Remedy ★½ 2005

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