Petition — Public Broadcasting Service v. Network Project

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Supreme Court, U.

| PreiD |]

DEC 14 1977

IN THE

Supreme Court of the Unite) States

OcToBER TERM, 1977

No. 77-858

Pusiic BroapcasTine Service, Petitioner

NetworkK ProJect, et al., Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Of Counsel: Harry M. Nag ge

THEODORE D. NK

ae. Sa CyntHia L. HaTHAWAY

ARENT, Fox, KINTNER,

PusBLic BROADCASTING Piorxin & KAHN

SERVICE ~

475 L’Enfant Plaza Washington, D.C.

West, S.W. 20006

Washington, D.C.

20024 Counsel for Petitioner

December, 1977

Press or Brron S. ADAMS PRINTING, INC., Wasuincton, D. C.

TABLE OF CONTENTS

Page

SD SI hve nsec ce sccccceccoccncnevccccoses 1

POE on ccc cccccccccccccesccdcesensenecoeses 2

GeRTTNNS FUMNTIGED oc ccccccccccwcccccccccvccceces 2

Statutes anp ConstiTuTionaL Provisions Invotvep... 3

STATEMENT OF THE CaSB ............ceeeeeeeee cence 3

Reasons ror Issuinc THE WBIT ...........---0000e00 9

The Federal Jurisdiction Question IsImportant.. 9

The Pendent Jurisdiction Question Is Unresolved 15

i i dmenbateudbvadesettensdbees 21

Appenpix A

Network Project v. Cor a or Public Broad-

casting, 561 F.2d (D.C. Cir. 1977) ....... la

Appenpix B

Network Project v. Corporation for Public evens

casting, F. eg 1332 (D.D.C. 1975) .... 25a

Appgnpix C

Judgment of the United States Court of Appeals

for the District of Columbia Circuit, entered

July 22, 1977, Network Project v. Corporation

for Public Broadcasting, No. 75-1963 ........ 43a

Appenpix D

Extension of Time To and Including December

15, 1977, Within Which to Petition for Cer-

SEE boucyengscncnde tien sues déanedecuees 45a

Appenpix E

Statutes and Constitutional Provisions .......... 46a

il TABLE OF AUTHORITIES

Cases : Page

Aldinger v. Howard, 427 U.S. 1 (1976) ........ 9, 11, 12,15

Allen v. State Roard of Elections, 393 U.S. 544 (1969). 13

Arizona v. Cook Paint & Varnish Co., 541 F.2d 226

(9th Cir. 1976), cert. denied, 430 U.S. 915 (1977) .. 14

Bell v. Hood, 327 U.S. 678 (1946) ..............65. 13, 14

Bell v. Hood, 71 F.Supp. 813 (S.D. Cal. 1947) ........ 14

Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976) ....... 10, 11

CES Publishing Corp. v. St. Regis Publications, Inc.,

Ge § £ fC: 4 eee 14

Clearfield Trust Co. v. United States, 318 U.S. 363

EE it tintin eta s ede een eee ce le seree as 20

Cort v. Ash, 422 U.S. 66 (1975) ............cceecees 7

Delavigne v. Delavigne, 530 F.2d 598 (4th Cir. 1976) .. 13

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 15, 16

Elberti v. Kunsman, 376 F.2d 567 (3d Cir. 1967) ...... 13

Goldman vy. First Federal Savings & Loan Ass’n, 518

co f 2. fh eee 11

Hagans v. Lavine, 415 U.S. 528 (1974) ........ 9, 11, 15-19

Healy v. Ratta, 292 U.S. 263 (1934) ................. 10

Hodge v. Mountain States Telephone & Telegraph Co.,

555 F'.2d 254 (9th Cir. 1977) ..............ccceee 10

Holloway v. Bristol-Meyers Corp., 158 U.S. App. D.C.

207, 485 F.2d 986 (1973) r “3

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ........ 20

IT v. Vencap, Ltd, 519 F.2d 1001 (2d Cir. 1975) .... 14

ae L. Stamm € Co., 491 F.2d 1176 (2d Cir.

rE EA PS RY Eee ey ee ee ee ee 13, 14

Kuhn v. National Ass’n of Letter Carriers, 528 F.2d

ES OEE 6 nls sc c.ot cabuaneuilie Uc omdans 14

Kurz v. Michigan, 548 F.2d 172 (6th Cir. 1977) ...... 10

ER ce See AY MERE ae 7, 11-13

Nolan v. Meyer, 520 F.2d 1276 (2d Cir.), cert. denied,

a EE Bie ee kDa ea 13, 14

Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976),

cert, denied, 430 U.S. 946 (1977) ............... 13

ae ee States, 411 U.S. 389 (1973) ....... 19

andalt vy. Goldmark, 495 F.2d 356 (1st Cir.), cert. de-

nied, 419 U.S. 879 (1974) ..... wentverie , sebbes's rd 13

on som i ee eres ot pon ea tae

eh ee ee ee ME es

Table of Authorities Continued iii

Page

Rivera v. Chapel, 493 F.2d 1302 (1st Cir. 1974) ...... 13

Romero v. International Terminal Operating Co., 358

U.S. 354 (1959) 0.2... ccs ccccccccccccccccccers 9,18

Rosado v. Wyman, 397 U.S. 397 (1970) .......... 9, 15, 16

Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir.

BED i cccavadtannaeedacesqhoesoocegecgeedsesse

Seourthies Investor Protection Corp. v. Barbour, 421

U.S. 412 (1975) ........cceceecceccccccccecees 7, il

Shea v. Vialpando, 416 U.S. 251 (1974) ........... s.

Siler v. Louisville & Nashville Railroad Co., 213 US.

175 (1900) ....cccccccccccccsccccccccscccccens 19

Snyder v. Harris, 394 U.S. 332 (1969) .............. 9,10

Stern v. United States Gypsum, Inc., 547 F.2d 1329

(7th Clr. 1987) 2... ce ccccccccereccccccsccccecess 10

Stone v. Powell, 428 U.S. 465 (1976) ..... ee eeeess ooo

Textile Workers Union of America v. Lincoln Mills,

353 U.S. 448 (1957) ..... ccc eeeecccscececeeees 20

Toensing v. Brown, 528 F.2d 69 (9th Cir. 1975) ..... -. it

Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir. aa

BD bccccacarseuscscesccescpeesstececasceses

United Housing Foundation, Inc. v. Foreman, 421 US.

Pr ee 15

United Mine Workers of America v. Gibbs, 383 U.S. 715

SEN Wi ndioseesdnbecdaccesssaseoeseses 10, 15, 16

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) .... 9

Warrington Sewer Co. v. Tracy, 463 F.2d 771 (3d Cir.

Wheeldin-v. Wheeler, 373 U8. 647 (i968) 2) is, 14

Wyman v. Rothstein, 398 U.S. 275 (1970) .........---. 16

STATUTES:

ee en enc eecoseveessenes 3, 5, 6, 20

eh ioe 6 0b HoWs cnceoreeresese 3,6

18 U.S.C. § 2510 et seg. (1970) ....... cece eee eee eee 10

Op Fv cldcavindsc casveccévcagene. os 2

28 U.S.C. § 1331 (1970) as amended by Act of Oct. 21,

1976, Pub. L. No. 94-574, § 2, 90 Stat. 2721 .... 3, 6, 7,

11, 16, 18, 21

FP We OEE EN ne cecicccecndsesccsscosesacesess 18

iv Table of Authorities Continued

Page

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23 UG: 450 CO occ kc cvccceaerti 3, 6-8, 12

3 UGG. 9 SREB COOTER... « covcdeccesccunee 13, 16, 17

0 UK, § 0008 (OBO. occ ccccccccccuecd ee 3, 6, 7

FP UID, GEE oo occvccncciduudcecessus eee 16

8 UBD. $2008 (2008) 6 o00ck csiveccccuceee 10

CB UG. 6 2005. (IGPU) oon cis vce dcusesadecee 10

45 U.S.C. § 501 ef seg. (1970) .... 0... ccc ccc cece 12

> UBL. $667 (1000) .. .....c00scececnccnsuee 12

CS OIG. FOOD ood ss cincwnvescasebese ee 18

47 U.S.C. § 396 et seq. (1970 & Supp. V 1975) ...... passim

Gl UBO. $605 (1000) ... .. cccccnauscuseneeee 10

OTHER:

Exec. O : 25

occ HERS CEE cose

Hotmes, O. W., Cottectep Leca. Papers, 395-96 (1920) 20

2A C. Sanps, SutHertanp Sr

~ ay Mh, } ATUT

itis ice aie, Srey et Comerewomin

Kurland, The Romero Case and S ems

+ , . . . 0

Federal Jurisdiction, 73 Harv. L. av. O17 (iseoe’ 18

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I ete ee RS mn

IN THE

Supreme Court of the United States

OctoserR TERM, 1977

No.

Pusiic Broapcastina Service, Petitioner

Vv.

Network Provect, et al., Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner Public Broadcasting Service (PBS) re-

quests that this Court issue a writ of certiorari to re-

view a judgment of the United States Court of Ap-

peals for the District of Columbia Circuit entered in

this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit (Appendix A) is

reported at 561 F.2d 963 (D.C. Cir. 1977). This deci-

sion reversed the judgment of the United States Dis-

trict Court for the District of Columbia. (Appendix

B). The District Court opinion is reported at 398 F.

Supp. 1332 (D.D.C. 1975).

JURISDICTION

The judgment of the United States Court of Ap-

peals for the District of Columbia Circuit (Appendix

C) was entered on July 22, 1977. No petition for re-

hearing was filed. An extension of time to and includ-

ing December 15, 1977, within which to petition for

certiorari was granted on October 13, 1977. (Appendix

D). The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1) (1970).

QUESTIONS PRESENTED

In its decision, the Court of Appeals held that the

District Court erred in not exercising pendent juris-

diction over Respondents’ First Amendment claims

even though both the District Court and the Court of

Appeals held, on the basis of a Motion to Dismiss and

before discovery was undertaken or trial commenced,

that the statutory claim on which the Court’s jurisdic-

tion was predicated must be dismissed for want of a

private right of action. The questions presented are:

1. Whether a District Court is authorized or re-

quired to exercise jurisdiction over pendent federal

claims when the claim conferring jurisdiction on the

Court is dismissed before discovery kas taken place

or trial begun on the grounds that no private right of

action exists under the statute on which tlie claim

rested ?

2. Whether the Court of Appeals erred in holding

that the District Court abused its discretion, as a mat-

he aga

he aA he A eR AES AAO A PIN By GA A Nae SS ln IO le a MB a

een

ter of law, in dismissing the Respondents’ pendent

claims even though both the District Court and the

Court of Appeals held that the claim over which the

District Court had jurisdiction was dismissed at the

threshold for want of a right of action?

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED

The statutes and constitutional provisions involved

in this case are set forth in Appendix E. These provi-

sions are 28 U.S.C. § 1331(a) (1970), as amended by

Act of Oct. 21, 1976, Pub. L. No. 94-574, § 2, 90 Stat.

2721 ; 28 U.S.C. § 1337 (1970) ; 28 U.S.C. § 1361 (1970) ;

the First and Fifth Amendments to the United States

Constitution; and the Public Broadcasting Act of

1967, 47 U.S.C. §§ 396 et seq. (1970 & Supp. V 1975).

STATEMENT OF THE CASE

On May 31, 1973, Respondents—plaintiffs below—

filed the complaint which forms the basis of this pro-

ceeding. Respondents are (1) two organizations (the

Network Project and the American Civil Liberties

Union) whose members are claimed to be viewers of

public television, three individuals who are members

of the Network Project and claim to be viewers of

public television, and eight individuals who claim to

be viewers of and financial contributors to public tele-

vision (collectively referred to as the ‘‘viewer-plain-

tiffs’”), and (2) three individuals who claim to have

written, directed, or produced public television pro-

grams (“‘producer-plaintiffs’’). Named as defendants,

in addition to Petitioner PBS, are the Corporation for

Public Broadcasting (CPB), Dr. Clay T. Whitehead,

former Director of the Office of Telecommunications

Policy,* and Patrick J. Buchanan, former Special

Assistant to the President.’ sey

CPB is incorporated as a nonprofit corporation un-

der the laws of the District of Columbia pursuant to

the Public Broadcasting Act of 1967. It is governed

by a Board of fifteen Directors appointed by the Presi-

dent, by and with the advice and consent of the Senate.

See 47 U.S.C. §§ 396(b), (c)(1) (1970) (App. E. at

48a).* Under the terms of the Public Broadcasting

Act, CPB is a nonprofit, nongovernmental organiza-

tion which is to provide leadership and direction to the

public broadcasting system and insulate the system

from external pressures arising from its funding. Id.

$§ 396 (a), (b), (g) (App. E at 47a, 48a, 51a). CPB

provides funds for the production of programs as well

as for the distribution of those programs to stations

which desire to broadcast them, and otherwise aids,

encourages, and facilitates the growth and development

of a public television syste.a attuned to and serving the

needs of the public both in particular localities and

throughout the United States. Id. §§ 396(a) (4), (g)

(1), ( g) (2) (App. E at 47a, 51a, 52a). Under the Act,

CPB is required to carry out these functions in a

manner designed to insure the maximum independence

and autonomy of the local stations. Id. §§ 396(g) (1)

(D). (App. E at 52a).

*The Office of Teleconmunications Policy is an O

: . ffice of th

oe Office of the President and was established by Sa

one ‘heheh : ge o a“ 1966-70), reprinted in 47

US.C. , a r . Dr. Whitehead i

individual and official capacities. ee

* Mr. Buchanan was sued in his individual and official capacities.

. ay pa this Petition the Appendices will be cited as (App

a ;

eee eee

PBS is a private nonprofit membership corporation

whose members consist of virtually all the licensees of

the noncommercial educational or public television sta-

tions located throughout the United States and its

territories. PBS distributes national public television

programs to all public television stations and provides

its member-stations with other programs and program-

related services.

The Complaint sets forth a total of nine claims. The

first three allege that CPB and PBS, as ageut for

CPB, control the programming distributed to and

broadeast by public television stations. The seventh

and eighth claims allege that CPB and PBS allowed

Defendants Whitehead and Buchanan to influence

their decisions respecting programs funded and dis-

tributed by them. As to each of these claims, viewer-

plaintiffs seek a declaration that CPB and PBS vio-

lated the Public Broadcasting Act of 1967 and the

First Amendment to the Constitution by denying them

the right to receive information without interference

from Defendants Whitehead or Buchanan or from

other named members of the White House staff. They

also seek an injunction against similar future activity

and an order enjoining CPB and PBS from exercis-

ing any direction or control over programs funded or

distributed by them.

The fourth claim for relief states that CPB and

PBS refused to distribute programs written, directed,

and produced by producer-plaintiffs.* Producer-plain-

‘ Producer-plaintiffs alleged that CPB and PBS violated their

rights by failing to distribute (1) a program, ‘“The Politics and

Humor of Woody Allen,’’ and (2) a 12-minute segment of ‘‘The

Great American Dream Machine’’ dealing with the FBI. These

tiffs claim that these actions violated the Public Broad-

casting Act as wll as the First and Fifth Amendments

and seek compensatory damages for injury to their

professional reputations, to their reputations for pro-

fessional integrity, and to their work products.’

The complaint alleged that federal jurisdiction ex-

ists under three sections of the judicial code: 28 U.S.C.

§§ 1331(a), 1337, and 1361 (1970) (App. E at 46a).

PBS and CPB moved to dismiss the complaint on the

grounds that the Court lacked subject matter jurisdic-

tion over the complaint, the plaintiffs lacked standing,

and the complaint failed to state a claim on which relief

could be granted.°

On July 23, 1975, before discovery was begun,” the

District Court granted the motions to dismiss. \ etwork

Project v. Corporation for Public Broadcasting, 398

programs were written, directed, and/or produced by the producer-

plaintiffs.

*The remaining claims are not directed against PBS or CPB.

Claims five and six aver that Defendants Whitehead and Buchanan

influenced or sought to influence various aspects of public tele-

vision operation. The ninth claim asserts that Irving Kristol, a

former member of CPB’s Board of Directors, was improperly par-

ticipating in decisions of CPB. The ninth claim also asserts that

the entire CPB Board of Directors must be restructured to reflect

the diversity of backgrounds and occupations required by the

Public Broadcasting Act. Plaintiffs abandoned the ninth claim in

their appeal to the Court of Appeals.

* Defendants Whitehead and Buchanan also moved for dismissal

or, in the alternative, summary judgment.

’ Although Plaintiffs served discovery niéfions on CPB and PBS

shortly after filing the Complaint, they did not oppose CPB’s and

PBS's Motion for Protective Orders pending District Court reso-

lution of the Motion to Dismiss. No further efforts were undertaken

to pursue discovery, even with respect to Defendents Whitehead

and Buchanan’s motion for summary judgment.

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F.Supp. 1332 (D.D.C. 1975). The District Court held

that under the Court of Appeals decision in Holloway

v. Bristol-Meyers Corp., 158 U.S. App. D.C. 207, 485

F.2d 986 (1973), and a series of decisions of this Court

starting with National Railroad Passenger Corp. V.

National Association of Railroad Passengers, 414 U.S.

453 (1974),* there was no private right of action under

the Public Broadcasting Act of 1967. 398 F.Supp. at

1339, 1342 (App. B at 35a, 42a). In view of this hold-

ing, the District Court did not determine whether the

Act was an ‘‘Act of Congress regulating commerce’”’

within the meaning of 28 U.S.C. § 1337. 398 F.Supp.

at 1340 (App. B at 37a). Moreover, the District Court

concluded that, as a consequence of its holding, there

was no pendent jurisdiction under 28 U.S.C. § 1337

over plaintiffs’ pendent constitutional claims. 398 F.

Supp. at 1340 n.9 (App. B at 37a). The District Court

further held that plaintiffs had failed to establish that

their claims involved an amount in controversy in ex-

cess of $10,000 as required under 28 U.S.C. § 1331(a),

and thus dismissed their constitutional claims for want

of jurisdiction. 398 F.Supp. at 1340, 1342 (App. B at

38a, 42a). The Court also held that producer-plain-

tiffs had failed to establish a basis for relief under the

First and Fifth Amendments, and that 28 U.S.C. § 1361

would not support mandamus jurisdiction over PBS

or CPB because neither were agencies of the United

States. 398 F.Supp. at 1339, 1341 n.13 (App. B at 36a,

40a). The District Court did not reach the other

issues.”

*The District Court also relied on Cort v. Ash, 422 U.S. 66

(1975), and Securities Fnvestor Protection Corp. v. Barbour, 421

U.S. 412 (1975). Network Project v. Corporation for Public Broad-

casting, 398 F.Supp. 1332, 1338 (D.D.C. 1975) (App. B at 33a).

* The District Court did not reach the questions of whether plain-

The Court of Appeals affirmed the District Court’s

disposition of the statutory claim.” The Court con-

cluded, after reviewing the statutory scheme estab-

lished by Congress in the Public Broadcasting Act,

‘‘that private rights of action are not part of the ma-

chinery devised by Congress for control of CPB’s activ-

ities.’’ Network Project v. Corporation for Public

Broadcasting, 561 F.2d 963, 976 (D.C. Cir. 1977) (App.

A at 24a). It thus held that a private right of action

could not be inferred under the Act. Jd. at 966, 976

(App. A at 3a, 24a). The Court, however, reversed the

District Court’s disposition of the First Amendment

claims and held that

i]f the court derived power from [28 U.S.C.

C337] to adjudicate [plaintiffs’] statutory con-

tentions[,] .. . applicable legal principles required

that it also hear [their] constitutional claims as

an exercise of pendent jurisdiction.

Id. at 968-69 (App. A at 8a) (footnotes omitted).”

The Court concluded that the District Court’s failure

tiffs had standing, whether the alleged conduct of CPB and PBS

involved ‘‘state action,’’ or whether, assuming ‘‘state action,’’ the

complaint stated a cause of action under the First Amendment.

398 F.Supp. at 1342 (App. B at 41a). The claims against De-

fendants Whitehead and Buchanan were dismissed as moot. /d.

1° Qn an issue not relevant here, the Court also upheld the Dis-

trict Court’s dismissal of the claim against Dr. Whitehead as moot.

Network Project v. Corporation for Public Broadcasting, 561 F.2d

963, 966-68 (D.C. Cir. 1977) (App. A at 3a-6a). Plaintiffs did not

appeal the District Court’s decision dismissing the suit against Mr.

Buchanan. /d. at 966 & n.6 (App. A at 2a, 3a).

11 The Court of Appeals held that Section 1337 jurisdiction was

assertable because the Public Broadcasting Act was enacted as an

amendment to the Communieations Act of 1934, 47 U.S.C. § 151

et seq. (1970), and that the latter was an ‘‘ Act of Congress regu-

lating commerce’’ within the meaning of Section 1337. 561 F.2d

at 969 (App. A at 10a).

to hear those claims constituted an abuse of discretion.”

Consequently, the Court of Appeals remanded the case

to the District Court for consideration of the pendent

claims.

REASONS FOR ISSUING THE WRIT

The issue presented to the Court in this Petition is

whether district courts are to entertain federal claims

beyond their jurisdiction when those claims are joined

with claims within their jurisdiction even though the

jurisdiction-conferring claim is disposed of on a motion

to dismiss, before any discovery is undertaken, or trial

commenced, and nothing remains of the case but the

pendent federal claim. The Court of Appeals’ holding

that, as a matter of law, the District Court abused its

discretion in failing to entertain a pendent federal

claim under those circumstances presents an important

question concerning the jurisdiction of federal courts

which has never been, but should be, resolved by this

Court.”

The Federal Jurisdiction Question Is Important

Federal courts are courts of limited jurisdiction

and, in the absence of special circumstances not present

here, may entertain claims only where specifically au-

thorized by Congress. See Aldinger v. Howard, 427 U.S.

1, 17-18 (1976); “ictory Carriers, Inc. v. Law, 404

U.S. 202, 212 (1971); Snyder v. Harris, 394 U.S.

’?The Court of Appeals thus did not reach the question of

whether the District Court had jurisdiction over those claims

under 28 U.S.C. § 1331(a). 561 F.2d at 969 n.36 (App. A at 8a).

'S See Hagans v. Lavine, 415 U.S. 528 (1974), and Rosado v.

Wyman, 397 U.S. 397 (1970), discussed infra. Compare Romero

v. International Terminal Operating Co., 358 U.S. 354 (1959).

332, 339-40 (1969) ; Healy v. Ratta, 292 U.S. 263, 269-

70 (1934). The doctrine of pendent jurisdiction is a

narrow exception to that constitutional limitation. ‘‘Its

justification lies in considerations of judicial economy,

convenience and fairness to litigants ... .’’ United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726

(1966). None of those factors is present, however, when

the claim upon which jurisdiction is predicated is dis-

missed at the threshold before there has been any mean-

ingful investment of effort by either the parties or the

court. Thus, where the pendent claim is grounded in

state law, this Court has clearly held that

if the federal claims are dismissed before trial,

even though not insubstantial in a jurisdictional

sense, the state claims should be dismissed as well.

Id. (footnote omitted).

This holding has been universally followed by the Courts of

Appeals. See Hodge v. Mountain States Telephone & Telegraph

Co., 555 F.2d 254 (9th Cir. 1977) (no private rights of action

existed under the Federal Omnibus Crime Control and Safe Streets

Act, 18 U.S.C. § 2510 et seg. (1970) or under Section 605 of the

Federal Communications Act of 1934, 47 U.S.C. § 605 (1970) ; the

district court was instructed to dismiss the pendent state claims

‘*for want of federal jurisdiction.’’) ; Kurz v. Michigan, 548 F.2d

172 (6th Cir. 1977) (the federal causes of action under the Civil

Rights Act, 42 U.S.C. §§ 1983, 1985 (1970), were dismissed ; the

pendent state law claims being no longer pendent must be dis-

missed likewise) ; Stern v. United States Gypsum, Inc., 547 F.2d

1329 (7th Cir. 1977) (no actionable federal claim was stated under

the Federal Civil Rights Act, 42 U.S.C. § 1985(1) (1970), and no

other basis for federal jurisdiction existed; the court ordered the

district court to dismiss the entire complaint which had included

pendent state claims); Briscoe v. Bock, 540 F.2d 392 (8th Cir.

1976) (no federal clairns under the Civil Rights Act, 42 U.S.C.

§§ 1983, 1985(3) (1970), were stated, and the court dismissed the

entire complaint which included a pendent state claim; the court

held: ‘‘ [I] f the district court had no jurisdiction with respect to the

The Court of Appeals held that this rule should not

apply in the instant case solely because the pendent

claim was federal. 561 F.2d at 970 (App. A at 1la-i2a).

Noting that federal courts were uniquely capable of

resolving constitutional questions, the Court of Ap-

peals concluded that, under this Court’s decision in

Hagans v. Lavine, 415 U.S. 528 (1974), the Congres-

sional determination, codified at 28 U.S.C. § 1331

(1970), that federal courts may only entertain federal

claims where the amount in controversy exceeds $10,000

was not relevant in deciding whether to exercise pend-

ent jurisdiction. 561 F.2d at 971 n.70 (App. A at

14a). The Court of Appeals gave no consideration

federal claim asserted by plaintiff, it had no jurisdiction of the pen-

dent [state] claim ....’’). It obtains even though the District Court

may ‘elect to decide the pendent state claim if the federal claim

involves a consitutional issue.

* The Court of Appeals also seemed to rely on the recent amend-

ment to Section 1331 allowing suits against the United States, its

agents, officers and employees without regard to the amount in

controversy to support its holding. 561 F.2d at 971 n.70 (App. A

at 14a). The Court of Appeals found that that amendment re-

flected ‘‘a congressional view that federal claimants suing federal

defendants should have access to federal courts regardless of the

monetary value of their claims.’’ Jd. However, neither PBS nor

CPB is an agent, officer, or employee of the United States. More-

over, by amending the statute to permit actions against one class

of defendants, Congress clearly intended not to allow suits against

another class—the defendants here. See Securities Investor Pro-

tection Corp. v. Barbour, supra at 420-21; National R.R. Passenger

Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453, 458

(1974) ; Goldman v. First Federal Savings & Loan Ass’n, 518 F.2d

1247, 1250 n.6 (7th Cir. 1975); 2A C. Sanps, SuTHERLAND StaTv-

tory Construction §§ 47.23-.25 (rev. 3d ed. 1973). That amend-

ment alone should preclude the exercise of pendent jurisdiction in

the instant case. See Aldinger v. Howard, 427 U.S. 1, 17 (1976)

(‘‘Parties .. . whom Congress ercluded . . . can argue with a great

deal of force that the scope of that ‘civil action’ over which the

a”

to the fact that the plaintiffs’ jurisdiction-conferring

claim was dismissed at virtually the earliest possible

moment and before the court or the parties had in-

vested any substantial time or devoted significant re-

sources to the prosecution of the case. The Court of

Appeals simply stated:

Since we perceive nothing out of the ordinary that

would justify a refusal of pendent jurisdiction

here, we hold that the District Court erred in dis-

missing [plaintiffs’] constitutional claims.

Id. at 971 (App. A at 14a) (footnote omitted). While

the Court of Appeals disclaimed any intention to re-

quire federal district courts to exercise jurisdiction

over pendent claims whenever they are federal, td., the

effect of its decision is to require just such a result.

That conclusion would appear at odds with the deci-

sion of this Court in National Railroad Passenger

Corp. v. National Association of Railroad Passengers,

supra. In that case, plaintiffs had challenged the Na-

tional Railroad Passenger Corporation’s termination

of certain rail passenger service on the ground that

the termination violated the Rail Passenger Service

Act of 1970 (Amtrak Act), 45 U.S.C. §501 et seq.

(1970). Jurisdiction rested on 28 U.S.C. § 1337 (1970)

and 45 U.S.C. § 547(a) (1970). The Court of Ay deals

had held that the district court has jurisdiction under

Section 1337, that the plaintiffs had standing, and

that a private right of action existed under the statute.

This Court reversed, holding:

district courts have been given statutory jurisdiction should not

be so broadly read as to bring them back within that power merely

because the facts also give rise to an ordinary civil action against

them under state law.’’) (emphasis in the original).

[T]he threshold question clearly is whether the

Amtrak Act or any other provision of law creates

a cause of action whereby a private party such as

the respondent can enforce duties and obligations

imposed by the Act; for it is only if such a right of

action exists that we need consider whether the

bid District Court had jurisdiction to entertain

i 16

The Court went on to state: ‘‘Since we hold that no

right of action exists, questions of standing and juris-

diction become immaterial.’’ 414 U.S. at 465 n.13. That

holding clearly indicates that the absence of a federal

right of action is in the nature of a jurisdictional defect

which would preclude the exercise of pendent juris-

diction.”

*° 414 U.S. at 456. See also Allen v. State Board of Elections,

393 U.S. 544, 554 (1969) (‘‘if § 5 authorizes appellants to secure

the relief sought, the district courts had jurisdiction [under 28

U.S.C. § 1343(4) (1970)] over these suits.’’).

1" Where the asserted federal claim is insubstantial, the Courts

of Appeals have agreed that pendent jurisdiction cannot be exer-

cised. See, e.g., Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir.

1976), cert. denied, 430 U.S. 946 (1977) ; Delavigne v. Delavigne,

530 F.2d 598 (4th Cir. 1976) ; Nolan v. Meyer, 520 F.2d 1276 (2d

Cir.), cert. denied, 423 U.S. 1034 (1975); Randall v. Goldmark,

495 F.2d 356 (1st Cir.), cert. denied, 419 U.S. 879 (1974) ; Rivera

v. Chapel, 493 F.2d 1302 (1st Cir. 1974); Kavit v. A. L. Stamm

& Co., 491 F.2d 1176 (2d Cir. 1974); Warrington Sewer Co. v.

Tracy, 463 F.2d 771 (3d Cir. 1972) ; Elberti v. Kunsman, 376 F.2d

567 (3d Cir, 1967). But see Wheeldin v. Wheeler, 373 U.S. 647

(1963); Bell v. Hood, 327 U.S. 678 (1946). In Bell v. Hood this

Court held that the district court had jurisdiction over a claim

under 28 U.S.C. § 1331 where ‘‘the right of the petitioners to re-

cover under their complaint will be sustained if the Constitution

and laws of the United States are given one construction and will

be defeated if they are given another.’’ Jd. at 685. The Court,

however, did not reach the question of whether that bare bones

jurisdictional predicate would be sufficient to support a pendent

Even without regard to whether the dismissal of

plaintiffs’ statutory claim for want of a right of ac-

tion is a jurisdictional finding, the early dismissal of

that jurisdictional-conferring claim must bar the Dis-

trict Court from entertaining the pendent claims. The

considerations which justify the exercise of pendent

jurisdiction simply no longer exist: there has been no

meaningful investment of judicial time or effort and

remitting the parties to the state courts imposes no

greater hardship on them «han a dismissal for failure

to allege any basis for invoking federal jurisdiction.”

There can be no earlier dismissal of a claim or less in-

vestment of time or effort.” To require, as the Court

claim, and indeed, on remand, the district court dismissed the

pendent claim upon finding no right to damages under the Fourth

Amendment. Bell v. Hood, 71 F.Supp. 813, 819-20 (S.D. Cal.

1947). The question was similarly reserved in Wheeldin v. Wheeler,

supra at 652.

*® See Nolan v. Meyer, supra at 1280 (‘‘we would be inclined

to hold that the retention of jurisdiction for trial of a pendent

state law claim on the basis of a federal question claim already

disposed of by a Rule 12(b)(6) motion, would be an abuse of

discretion absent unusual circumstances, not present here, sug-

gesting some prejudice arising from relegating the case for trial

in the state court.’’); JJT v. Vencap, I4d., 519 F.2d 1001, 1015

(2d Cir. 1975) (‘‘Pendent jurisdiction can be relied upon only

when there is a claim conferring federa! jurisdiction that will sur-

vive a motion to dismiss.’’).

** The time spent resolving whether to dismiss a case has been

a factor in deciding whether to exercise pendent jurisdiction in

a given case. See, e.g., Arizona v. Cook Paint & Varnish Co., 541

F.2d 226 (9th Cir. 1976), cert. denied, 430 U.S. 915 (1977) ; Tully

v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir. 1976); CES

Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11 (2d

Cir. 1975); Kuhn v. National Ass’n of Letter Carriers, 528 F.2d

767 (8th Cir. 1976); Toensing v. Brown, 528 F.2d 69 (9th Cir.

1975) , Nolan v. Meyer, supra; IIT vy. Vencap, Ltd., supra; Kavit

v. A. L. Stamm & Co., supra; Ruckle v. Roto American Corp., 339

F.2d 24 (2d Cir. 1964).

of Appeals did here, the exercise of federal jurisdic-

tion in these circumstances seriously undermines the

constitutional prescription that Congress is to define

the jurisdiction of the federal courts.

The Pendent Jurisdiction Question Is Unresolved

While this Court has stated that different considera-

tions obtain when a pendent claim rests on federal

rather than state law,” it has never indicated that the

federal nature of a pendent claim requires the district

courts to exercise pendent jurisdiction or that the

federal nature of the claim removes the considerations

set forth in Gibbs from the decision to exercise pend-

ent jurisdiction.”

2° See Hagans v. Lavine, supra at 548; Rosado v. Wyman, supra

at 404.

* See, e.g., Aldinger v. Howard, 427 U.S. 1 (1976) (there can

be no pendent party jurisdiction in a case where the congressional

grant of federal jurisdiction has been interpreted to exclude pri-

mary federal jurisdiction over the party) ; United Housing Founda-

tion, Inc. v. Forman, 421 U.S. 837 (1975) (the district court

properly dismissed the entire complaint which included pendent

state claims when it ruled plaintiffs’ securities claims were not

cognizable in federal court); Shea v. Vialpando, 416 U.S. 251

(1974) (the district court ‘‘properly’’ decided the pendent federal

statutory claim first, thus disposing of the case without convening

a three-judge panel to decide the constitutional claim) ; Mayor of

Philadelphia v. Educational Equality League, 415 U.S. 695 (1974)

(district congt judgment that no equal protection violation existed

reinstated by Supreme Court; pendent state claims not raised in

certiorari petition, in briefs, or at oral argument; in any event,

resolution of pendent state claims would not resolve case; dissent

would have ordered resolution of the pendent state claims to avoid

the constitutional decision); Edelman v. Jordan, 415 U.S. 651

(1974) (where the equal protection claim was not wholly insub-

stantial, the district court correctly exercised pendent jurisdiction

over the pendent federal statutory claim to avoid a constitutional

decision) ; Moor v. County of Alameda, 411 U.S. 693 (1973) (dis-

In Rosado v. Wyman, 397 U.S. 397 (1970), this

Court held that a district court had pendent jurisdic-

tion to consider a supremacy clause claim where the

equal protection claim with which it was joined was dis-

missed after hearings and argument because it had

become moot. That case involved a challenge to a New

York State welfare statute which reduced Aid to Fami-

lies with Dependent Children (AFDC) benefits to cer-

tain residents of the state. The statute was challenged

on the grounds that it violated the equal protection

clause and was inconsistent with the Social Security

Amendments of 1967. Jurisdiction over the equal pro-

tection challenge rested on 28 U.S.C. § 1343,” and that

claim required a three-judge court under 28 U.S.C.

§ 2281. After the three-judge court was convened and

hearings and argument were held, the New York Legis-

lature amended the challenged statute so as to render

the equal protection claim moot. 397 U.S. at 400, 403.

Accordingly, the three-judge court was dissolved, but

the single-judge district court proceeded to resolve the

pendent supremacy clause claim. This Court held that

jurisdiction existed in the district court to decide that

trict court had discretion not to exercise pendent party jurisdic-

tion); Wyman v. Rothstein, 398 U.S. 275 (1970) (district court

opinion vacated with instructions to decide the pendent federal

statutory claim first in order to avoid a constitutional decision) ;

United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966)

(where pendent state claim is appended to a federal claim and

the federal claim is dismissed before trial, the pendent state claim

should also be dismissed ).

22 Kecause the Court found pendent jurisdiction over the su-

premacy clause claim, it did not decide whether it had jurisdiction

over that claim under 28 U.S.C. §§ 1331 or 1343(3). 397 U.S. at

405 n.7. See also Hagans v. Lavine, supra at 533 n.5, 536 ; Edelman

v. Jordan, supra at 653 n.1.

pendent claim.” However, the Court also specifically

noted that it was

intimat[ing] no view as to whether the situation

might have been different had the constitutional

claim become moot before the District Court had

invested substantial time in its resolution.

Id. at 404 nA.

Similarly, Hagans v. Lavine, 415 U.S. 528 (1974),

involved a case in which the jurisdiction-conferring

claim was not dismissed at the threshold. That case

involved an equal protection challenge to a state AFDC

program and a pendent supremacy clause claim. The

Court of Appeals had held the equal protection claim

to be insubstantial and had dismissed the pendent su-

premacy clause claim for want of jurisdiction. This

Court reversed, finding that the equal protection clause

claim was sufficient to confer jurisdiction on the Dis-

trict Court and concluding that, where the ‘‘constitu-

tional claim [is] sufficient to confer jurisdiction on the

District Court to pass on the controversy[,]’’ the Dis-

trict Court could resolve the case on the basis of the

pendent claim. Jd. at 538. This was particularly true,

** Four reasons were given for the Court’s holding: First, the

federal court’s jurisdiction initially was properly invoked under

28 U.S.C. §§ 1343(3), (4). 397 U.S. at 403. Second, mootness is

frequently a matter beyond the control of the parties. Jd. at 404.

Third, unlike the problem of an insubstantial federal claim, moot-

ness is not always apparent at the outset of a case and often may

not occur until after substantial federal judicial time and energy

have been expended in resolving a properly cognizable federal

claim. Id. Fourth, the ‘‘commonsense policy of pendent jurisdic-

tion—the conservation of judicial energy and the avoidance of

multiplicity of litigation’? would not be served by requiring juris-

diction over the constitutional claims at all subsequent stages of

the lawsuit. Jd. at 405. Of those reasons, only the first applies here.

the Court held, where the resolution of the pendent

claim would avoid a constitutional question and the

necessity to convene a three-judge court. Id. at 543-44.

In view of that resolution of the case, the Court did

not consider whether the District Court should have

reached the pendent supremacy clause claim had the

constitutional claim been dismissed at the threshold.*

Indeed, this Court’s decision rested in large part on the

well-established doctrine that federal courts should

avoid, when possible, unnecessary resolution of consti-

** While at first blush Romero v. International Terminal Operat-

ing Co., supra, would appear to involve this question, in fact, the

district court there had jurisdiction over both the dominant and

‘*pendent’’ claims, and the question was whether both claims

could be resolved in one proceeding. In that case, the plaintiff

brought suit for damages under the Jones Act, 46 U.S.C. § 688,

and under the general maritime law of the United States for un-

seaworthiness of the ship, maintenance and cure, and negligence.

The district court had jurisdiction under 28 U.S.C. § 1331 over

the Jones Act claim and Section 1332 jurisdiction with respect to

the maritime claims against some of the defendants. This Court

held, that Section 1331, as distinguished from Section 1333, did

not give the district court jurisdiction over the general maritime

claim. However, it also held that ‘‘in the very limited cireum-

stances’’ of the case, the district court could exercise ‘‘pendent’’

jurisdiction over the maritime claims under Section 1331. The

Court went on to hold that the Jones Act claim did not state a

eause of action. As distinguished from this case, the district court

in Romero possessed jurisdiction over the pendent claim, and the

only question was whether it could entertain that claim only in

the context of its admiralty jurisdiction or whether it could also

hear the claim sitting as a ‘‘court of law’’ under Section 1331.

See Kurland, The Romero Case and Some Problems of Federal

Jurisdiction, 73 Harv. L. Rev. 817, 833-50 (1960). The case is

thus inapposite. Indeed, rather than exercising jurisdiction in the

face of a Congressional determination that federal district courts

should not entertain claims over which the Court exercised ‘‘ pen-

dent’’ jurisdiction, there was a congressional determination that

federal courts, sitting as courts of admiralty, should resolve those

claims.

tutional issues. Jd. at 543. See Siler v. Louisville &

Nashville Railroad Co., 213 U.S. 175 (1909).

In this case, there are no such compelling policy

considerations supporting the exercise of pendent ju-

risdiction.” State courts are fully competent to resolve

questions of federal law. As this Court noted recently

in Palmore v. United States, 411 U.S. 389, 401, 407

(1973) :

Xf Intl 1875 Congress refrained from providing

lower federal courts with general federal-ques-

tion jurisdiction. . . . [W]ith exceptions, the state

courts remained the sole forum for the trial of

federal cases not involving the required jurisdic-

tional amount... .

[Bjoth Congress and this Court have recognized

that state courts are appropriate forums in which

federal questions and federal crimes may at times

be tried ....

Similarly, in Stone v. Powell, 428 U.S. 465, 493 n.35

(1976), this Court held:

Despite differences in institutional environment

and the unsympathetic attitude to federal consti-

tutional claims of some state judges in years past,

we are unwilling to assume that there now exists

a general lack of appropriate sensitivity to consti-

tutional rights in the trial and appellate courts of

the several States.”

25 Indeed, the Court of Appeals decision produces the anomolous

result of allowing the first party alleging the meritless jurisdiction-

conferring claim to gain access to the federal courts for resolution

of the more viable pendent claim whiie making access for others

turn on whether they can persuade the court in whose jurisdiction

they file their complaint that the earlier resolution of the jurisdic-

tion-conferring claim was not manifestly correct. Access to federal

district courts cannot turn on such fortuity.

26 Accord, Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975).

Further, remitting plaintiffs to the state courts is par-

ticularly appropriate here where there is no hostility

between state and federal policies. As distinguished

from supremacy clause claims” where the essence of

the federal cause of action is an alleged failure of the

state to abide by federal policy, here there is a congru-

ity of interests between state and federal governmental

policies. Virtually all, if not all, of the states have

constitutional provisions basically similar to the First

Amendment. And, in this case there is a particular

confluence of interests since most of the states provide

financial assistance to public broadcasting.” In these

circumstances, deference must be paid to Congress’s

determination that federal district courts should not be

burdene# by claims—even constitutional claims—

where the amount in controversy does not exceed

2? Virtually all of the decisions finding jurisdiction over pendent

federal claims have involved supremacy clause challenges to state

statutes. There are persuasive reasons supporting the exercise of

pendent jurisdiction in those cases for the question presented 1s

one involving a conflict between federal and state policies. In those

circumstances, federal adjudication of the supremacy clause claim

will avoid the bias which state courts may have and will insure a

more uniform development of federal policy. Cf. Textile Workers

Union of America v. Lincoln Mills, 353 U.S. 448 (1957) ; Clear-

ficld Trust Co. v. United States, 318 U.S. 363 (1943). As Justice

Holmes noted:

I do not think that the United States would come to an end

if we lost our power to declare an Act of Congress void. I do

think the Union would be imperilled if we could not make

that declaration as to the laws of the several] States.

Holmes, 0. W., Collected Legal Papers 295-96 (1920).

** Forty-two states operate public broadcast stations either

through state public broadcasting agencies, through state school

boards, or state institutions of higher education. Several states pro-

vide financial assistance to public broadcasting along lines similar

to that provided by the federal government. Thirteen states have

public broadcast stations licensed to local school boards.

$10,000.” The already overburdened federal courts

should not be required to add to their burden by en-

tertaining pendent federal claims where the jurisdic-

tion-granting claim is dismissed at the threshold and

nothing remains of the controversy but the claim over

which the Court otherwise would not have jurisdiction.

CONCLUSION

For the foregoing reasons, this Court should grant

this Petition and issue a Writ of Certiorari to the

United States Court of Appeals for the District of

Columbia Circuit.

Respectfully submitted,

Of Counsel: ae M. PLOTKIN

INEI HEODORE D. FRANK

anes SS CyntTHia L. HATHAWAY

ARENT, Fox, KINTNER,

— BROADCASTING Puorkin & KAHN

ERVICE

, 1815 H Street, N.W.

— aaw Plaza Washington, D.C.

Washington, D.C.

20024 Counsel for Petitioner

Public Broadcasting

Service

December, 1977

** This is especially true here in view of the recent amendment

to 28 U.S.C. § 1331 to allow suits against the United States, its

agents, officers and employees, without regard to the amount in

controversy. By that amendment, Congress clearly indicated its

intention not to allow suits against another class—the defendents

here. See note 15 supra.

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

No. 75-1963

The Network Prosect et al., Appellants,

CoRPoRATION FOR PuBLic BroapcasTING, a corporation, et al.

Appeal from the United States District Court for the Dis-

trict of Columbia. (Civil Acton No. 1059-73).

Argued June 8, 1976.

Decided July 22, 1977.

Before Rosrnson and Wrixey, Circuit Judges, and Wm-

L1aM J. JaMEson,® United States Senior District Judge for

the District of Montana.

Opinion for the Court filed by Circuit Judge Rosinson.

Appellants are numerous viewers of public television

(viewer-appellants) ‘ and three individuals who have writ-

ten, directed and produced public television programs (pro-

ducer-appellants).? Appellees are the Corporation for Pub-

lic Broadcasting (CPB), established pursuant to congres-

sional authorization as a conduit of federal funds for pub-

lic television, and the Public Broadcasting Service (PBS),

created by CPB to distribute public television programs to

* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

‘ Viewer appellants are the Network Project and the American

Civil Liberties Union, organizations whose memberships include

viewers of public television, and 11 individuals who are viewers

also.

* Producer appellants are Paul Jacobs, Saul Landau and John

Kuney.

oo d > * “

: View Wik :

he hot ees ee hE Lak Usd Raat

eee

ee le tk tee ee eet ae | be

local stations, together with Clay T. Whitehead, who as a

former presidential aide, was Director of the Office of Tele-

communications Policy. The appeal emanates from a judg-

ment of the District Court dismissing an action precipi-

tated by activities allegedly violative of rights secured by

statute and the Constitution.*

In their complaint, appellants charge that appellees have

censored and controlled the content of public television in

contravention of the First Amendment‘ and legislation

known as the Public Broadcasting Act.’ Specifically, the

complaint avers that CPB and PBS have eliminated fund-

ing for most or all controversial programs, and now require

detailed descriptions of program content as a condition of

funding. The complaint further avers that CPB and PBS

have prescreened and censored programs, have required

program changes prior to distribution, and have issued

warnings to local stations about programs considered by

them to be controversial. Whitehead and Patrick J. Bu-

chanan, another former presidential aide once a party,* are

accused of attempts to cause CPB and PBS to remove all

controversial programs from the air.

Viewer-appellants seek declaratory and injunctive relief

prohibiting appellees from interfering with their asserted

right to see uncensored public television programs. Pro-

ducer-appellants demand damages for injury to their pro-

fessional reputations and their ability to market their work

* Network Project v. Corporation for Pub. Broadcasting, 398

F.Supp. 1332 (D.D.C. 1975).

*U.S.Const. amend. I.

> Act of Nov. 7, 1967, Pub.L.No. 90-129, tit. II, § 201, 81 Stat.

368, as amended, 47 U.S.C. §§ 396 et seg. (Supp. V 1975), herein-

after cited as codified.

* Buchanan was a special consultant to the President. Though a

defendant in the District Court, he is not a party here. See text

infra following note 10.

products allegedly resulting from censorship of programs

written, directed or produced by them. The District Court

first dismissed the suit against the individual defendants

as moot.’ The court then held that appellants had failed to

state a claim under the Public Broadcasting Act upon which

relief could be granted.’ Lastly, it dismissed the First

Amendment contentions of viewer-appellants for lack of

jurisdiction ® and those of producer-appellants for lack of

substantive merit. *° We reverse the disposition of the First

Amendment claims as to both viewer- and producer-appel-

lants. In all other respects, we affirm.

The District Court held that insofar as the action sought

declaratory and injunctive relief from Whitehead and Bu-

chanan, the presidential aides, it had become moot because

of their resignations from office after commencement of

suit." Appellants pursue this appeal only against White-

head, formerly the Director of the Office of Telecommuni-

cations Policy. They argue that they should now be allowed

to proceea against Whitehead’s successor.

While Federal Civil Rule 25(d)(1) provides for auto-

matic substitution of a successor,* and eliminates the re-

* Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1335-1337.

® Id. at 1337-1339.

* Id. at 1339-1342.

*° Td. at 1341 n. 13.

"Td. at 1335.

*® See Reorganization Plan No. 1 of 1970, 3 C.F.R. 1066 (1971).

*® Fed.R.Civ.P. 25(d) (1) provides in relevant part that ‘‘ [w] hen

a public officer is a party to an action in his official capacity and

during its pendency dies, resigns or otherwise ceases to hold office,

the action does not abate and his successor is automatically substi-

tuted as a party.’’

quirement that the plaintiff demonstrate need for continu-

ing the action upon substitution,” it will not keep alive an

otherwise moot controversy. This principle was firmly estab-

lished by the Supreme Court’s decision in Spomer v. Little-

ton.** There, residents of Cairo, Illinois, filed suit against

Peyton Berbling, State’s Attorney for Alexander County,

charging him with a variety of racially discriminatory law

enforcement practices. After the Seventh Circuit announced

its decision on appeal, Spomer was elected to succeed Ber-

bling. Relying on Supreme Court Rule 48(3),’* Spomer then

petitioned for certiorari to challenge the Court of Appeal’s

approval of the possibility of injunctive relief against the

State’s Attorney. The plaintiffs did not oppose this sub-

stitution, and the Supreme Court granted the writ.

After plenary review, however, the Court found nothing

in the record upon which to base a conclusion that a con-

crete controversy between the residents of Cairo and the

State’s Attorney still existed.’ Of primary importance

here, the Court emphasized that ‘‘[t]he wrongful conduct

charged in the complaint is personal to Berbling, despite

the fact that he was also sued in his then capacity as State’s

Attorney,’’** and that ‘‘[n]o charge is made in the com-

plaint that the policy of the office of State’s Attorney is to

follow the intentional practices alleged ... .’’** The Court

‘3B J. Moore, Federal Practice § 25.09[{3] at 25-401 (2d ed.

1974)

° 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974).

i¢ That rule, which is virtually identical to Fed.R.Civ.P. 25(d)

(1), provides that ‘‘[w}hen a public officer is a party to a proceed-

ing here in his official capacity and during its pendency dies, re-

signs, or otherwise ceases to hold office, the action does not abate

and his successor is automatically substituted as a party.”’

* Spomer v. Littleton, supra note 15, 414 U.S. at 520-522, 94

S.Ct. at 688-690, 38 L.Ed.2d at 699-700.

‘8 Jd. at 521, 94 S.Ct. at 689, 38 L.Bd.2d at 700.

” 56. o

further noted that the plaintiffs made no allegation that

Spomer intended to continue the practices of which they

complained.”

At oral argument, counsel for the State’s Attorney had

indicated that Spomer did not intend to deviate from the

practices of his predecessor.** The Court, however, held

that ‘‘to determine whether respondents have a live con-

troversy, .. . we must look to the charges they press.’’™

Having found that there was a strong possibility of moot-

ness, the Court remanded the case for a determination as to

whether it was moot and whether the plaintiffs desired, and

should be permitted, to amend their complaint to include

claims for relief against Spomer.”

The similarities between Spomer and the instant case are

obvious and for appellants insurmountable. Here, as in

Spomer, the wrongful conduct charged is personal to the

named defendant, despite his having been sued in his offi-

cial capacity.* Like the plaintiffs in Spomer, appellants

** Id. at 522 n. 10, 94 S.Ct. 689 n. 10, 38 L.Ed.2d at 700 n. 10.

#2 Id. (emphasis in original).

*8 Id. at 522, 94 S.Ct. at 689-690, 38 L.Ed.2d at 700-701. On re-

mand, the plaintiffs in®ormed the Court of Appeals that they did

not intend to name —pomer as an additional defendant because

they were unable to allege that he was continuing the discrimina-

tory practices of his predecessor. Accordingly, the court dismissed

the complaint against Berbling as moot. Littleton v. Berbling, No.

71-1395 (7th Cir. Jan. 29, 1975) (unreported).

* The complaint charged, inter alia, that Whitehead pressured

CPB officers to discontinue various controversial programs and to

reduce live news coverage. Joint Appendix (J.App.) 19. Appel-

lants’ argument that they did not explicitly characterize the con-

duct of which they complain as personal to Whitehead is beside

the point. They did assert that Whitehead committed certain dis-

erete illegal acts, and in the absence of any allegation that the

acts were other than individual—s. e., departmental policy—their

complaint can be construed only as charging personal misconduct.

here have not everred that it is departmental policy to fol-

low the practices charged. Moreover, appellants have re-

jeeted an opportunity to amend their complaint to add alle-

gations that the asserted conduct has continued beyond

Whitehead’s departure.

On the basis of the complaint,” then, we are unable to

say that a live controversy now subsists between appel-

lants and the Director of the Office of Telecommunications.

Accordingly, we affirm the District Court’s dismissal of the

suit in that regard.

Next to be considered is whether the District Court pos-

sessed jurisdiction of appellants’ statutory and constitu-

tional claims. Jurisdiction was invoked on three separate

grounds, all of which were deemed unacceptable. The court

declined to exercise federal-question jurisdiction under 28

U.S.C. § 1331, holding that appellants had failed to estab-

> Appellants suggest that an affidavit which Whitehead sub-

mitted to the District Court, J.App. 37-41, shows that the acts

complained of represented departmental policy, and thus that A

live controversy persists in the absence of a disclaimer by White-

head’s successor. This argument is misconceived. The affidavit does

not concede that it was departmental policy to interfere with CPB

programming decisions; it simply asserts that the Director of the

Office of Telecommunications has statutory responsibilities in mat-

ters concerning public broadcasting. In any event, Whitehead 8

representations are irrelevant since mootness must be determined

solely by reference to the allegations of the complaining party.

Spomer v. Littleton, supra note 15, 414 U.S. at 522, n. 10, 94 8.Ct.

at 689 n. 10, 38 L.Ed.2d at 700 n. 10, quoted in text supra at

note 23.

2‘*The district courts shall have original jurisdiction in any

civil actions wherein the matter in controversy exceeds the sum or

value of $10,000, exclusive of interest and costs, and arises under

the Constitution, laws, or treaties of the United States, except that

no such sum or value shall be re ,wired in any such action brought

against the United States, any agency thereof. or any officer or

lish that the requisite $10,000 was in controversy.”” The

court also held that jurisdiction could not be predicated

upon 28 U.S.C. § 1361." That provision, which imparts ju-

risdiction over suits ‘‘to compel . .. any agency . . . to per-

form a duty owed to the plaintiff,’’ * was held inapplica

on the ground that CPB is not an agency, and cava

rectors are not officers, within its contemplation.” Finally,

without deciding whether it had jurisdiction under 28 U.S.C.

§ 1337," the court held that no right of action could be im-

plied from the Public Broadcasting Act of 1967 and dis-

missed appellants’ statutory claims accordingly.” In a

brief footnote, the court added that ‘‘[{i]n that instance

there is no pendent jurisdiction under § 1337,’’ * and there-

by nipped in the bud appellants’ undertaking to demon-

strate a constitutional basis for relief.

employee thereof in his official capacity,’’ 28 U.S.C. § 1331(a)

(1970), as amended by Act of Oct. 21, 1976, Pub.L.No. 94-574, § 2,

90 Stat. 2721.

7" Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1340-1342.

** Id. at 1339.

***The district courts shall have origina] jurisdiction of any

action in the nature of mandamus to compel an officer or employee

of the United States or any agency thereof to perform a duty owed

to the plaintiff.’’ 28 U.S.C. § 1361 (1970).

*° Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1339.

***The district courts shall have original jurisdiction of any

civil action or proceeding arising under any Act of Congress

regulating commerce or protecting trade and commerce against

restraints and monopoly.’’ 28 U.S.C. § 1337 (1970).

** Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1337-1339, 1342.

*8 Id. at 1340 n. 9.

peTOe nee a =

We think that in reaching this last conclusion, the Dis-

trict Court misconceived the scope of pendent jurisdiction.

If the court derived power from Section 1337 to adjudi-

cate appellants’ statutory contentions—a matter we find

not subject to serious dispute *““—applicable legal principles

required that it also hear appellants’ constitutional claims

as an exercise of pendent jurisdiction.** We conclude that

its failure to do so constituted an abuse of discretion.”

Section 1337 confers jurisdiction on district courts in

suits ‘‘arising under any Act of Congress regulating com-

merce. ...’’?*’ This grant has been broadly interpreted to

reach any federal statute for which the Commerce Clause ™

furnishes a predicate.” In National Broadcasting Co. v.

United States, the Supreme Court upheld the licensing sys-

tem established by Congress in the Communications Act of

1934 “* as a proper exertion of its power over interstate

commerce.“ The Commanications Act is now fully recog-

34 We discuss this infra text at notes 37-49.

35 We discuss this infra text at notes 50-68.

**In light of this disposition, we need not address appellants’

other jurisdictional arguments.

** See note 31 supra.

** U.S.Const. art. 1, § 8, el. 3.

* Cupo v. Community Nat’l Bank & Trust Co., 438 F.2d 108,

109-110 (2d Cir. 1971); Murphy v. Colonial Fed. Savs. & Loan

Ass’n, 388 F.2d 609, 614-615 (2d Cir. 1967); Imm v. Union R.R.,

289 F.2d 858, 859-860 (3d Cir.), cert. denied, 368 U.S. 833, 82

S.Ct. 55, 7 L.Ed.2d 35 (1961) ; Caulfield v. United States Dep’t of

Agriculture, 293 F.2d 217, 222 n. 10 (5th Cir.), cert. dismissed,

369 U.S. 858, 82 S.Ct. 946, 8 L.Ed.2d 16 (1961).

*° 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1544 (1934).

*! Act of June 19, 1934, ch. 652, 48 Stat. 1064, as amended, 47

U.S.C. §§ 151 et seg. (1970).

*2 National Broadcasting Co. v. United States, supra note 40,

319 U.S. at 227, 63 S.Ct. at 1014, 87 L.Ed. at 1368.

nized as an ‘‘[a]ct of Congress regulating commerce’’ with-

in the meaning of Sectior © 337.“

The Public Broadcasting Act originated in the Interstate

Commerce Committees of both Houses of Congress, and

came into being as an amendment to the Communications

Act of 1934.“ It expressly promotes the establishment and

develpment of non-commercial educational radio and tele-

vision broadcasting throughout the Nation.** These factors

alone bring appellants’ statutory claims well within the am-

bit of Section 1337. Indeed, there is nothing on the face of

the statute or discernible in its history to suggest that Con-

gress did not continue reliance upon its commerce power—

an obvious facet of legislative authority—in passing the

Public Broadcasting Act. Nor can there be the slightest

doubt that the commerce power provides Congress with

ample authority to foster the development of non-commer-

cial television.

For purposes of Section 1337, it is irrelevant that the

Public Broadcasting Act might also be upheld as a valid

*® Massachusetts Universalist Convention v. Hildreth & Rogers,

Co., 183 F.2d 497, 499 (1st Cir. 1950); Pugach v. Dollinger, 277

F.2d 739, 741 (2d Cir. 1960) aff’d, 365 U.S. 458, 81 S.Ct. 650, 5

L.Ed.2d 678 (1961) ; Springfield Television, Inc. v. City of Spring-

field, 428 F.2d 1375, 1378 (8th Cir. 1970); Weiss v. Los Angeles

Broadcasting Co., 163 F.2d 313, 314 (9th Cir.), cert. denied, 333

U.S. 876, 68 S.Ct. 895, 92 L.Ed. 1152 (1947).

“S.Rep.No. 222, 90th Cong., Ist Sess. 1 (1967); H.R.Rep.No.

572, 90th Cong., Ist Sess. 1 (1967), U.S.Code Cong. & Admin.News

1967, p. 1772.

*® See 47 U.S.C. §§ 396(a),.(¢) (Supp. V 1975).

** That the Commerce Clause sustains federal legislation promot-

ing the growth of interstate commerce has long since been settled.

E. g., Second Employer’s Liability Cases (Mondou v. New York,

N. H. @ H. R.R.), 223 US. 1, 47, 32 S.Ct. 169, 173-174, 56 L.Ed.

327, 345 (1912) ; County of Mobile v. Kimball, 102 U.S. 691, 696-

697, 26 L.Ed. 238, 239 (1881); The Daniel Ball, 77 U.S. (10 Wall.)

557, 564, 19 L.Ed. 999, 1001 (1871).

10a

exercise of congressional power to spend for the general

welfare.” ‘‘{[T]o found jurisdiction upon § 1337, it is not

requisite that the commerce clause be the exclusive source

of Federal power; it suffices that it be a significant one.’’ “

It can hardly be gainsaid that the Commerce Clause, a self-

sufficient basis for the Act, is at the very least a significant

source of legislative authority for its enactment. We hold

that the District Court had jurisdiction to consider whether

appellants derived a cause of action from the statute, and

we later review the court’s decision on that score.“

Beyond that, since appellants’ constitutional and statu-

tory claims ‘‘derive from a common nucleus of operative

fact’? and are such that appellants ‘‘would ordinarily be

expected to try them [both] in one judicial proceeding,” ”

the District Court clearly had power to hear the constitu-

tional aspects of their lawsuit as a matter of pendent juris-

diction. While ‘‘pendent jurisdiction is a doctrine of dis-

‘7“*The Congress shall have Power To lay and collect Taxes,

Duties, Imposts and Excises, to pay the Debts and provide for the

common Defense and general Welfare of the United States... .

U.S.Const. art. I, 5 8, el. 1.

** Murphy v. Colonial Fed. Savs. & Loan Ass’n, supra note 39,

388 F.2d at 615. See also Davis v. Romney, 490 F.2d 1360, 1365 (2d

Cir. 1974) ; Esposito v. Shultz, 366 F.Supp. 1059, 1061 (N.D.Cal.

1973).

* In Part III infra.

°° UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.

218, 228 (1966).

** Td.

2 Id. See also Apton v. Wilson, 165 U.S.App.D.C. 22, 35, 506

F.2d 83, 96 (1974); Knuth v. Erie-Crawford Dairy Coop. Ass’n,

395 F.2d 420, 426-27, (3d Cir. 1968), on remand, 326 F.Supp. 48

(W.D.Pa. 1971), aff'd in part and rev’d in part, 463 F.2d 470

(3d Cir. 1972), cert. denied, 410 U.S. 913, 93 S.Ct. 966, 3 L.Ed.2d

278, on remand, 58 F.R.D. 646 (W.D.Pa.), aff'd, 487 F.2d 1394

(3d Cir. 1973); Burton v. Waller, 502 F.2d 1261, 1265 n. 1 (5th

lla

cretion, not of plaintiff’s right,’’ * discretion is not left to

the court’s ‘‘inclination, but to its judgment; and its judg-

ment is to be guided by sound legal principles.’’* In par-

ticular, the exercise of discretion must be responsive to the

considerations of judicial economy, convenience and fair-

ness to litigants which underlie and justify the phenomena

of pendent jurisdiction.™

The District Court appears to have rested its refucal to

assume pendent jurisdiction on the misconception that pre-

trial dismissal of the statutory claims necessitated dismissal

of the pendent claims as well.** It is true that when state and

federal claims are joined and the federal claims are dis-

missed before trial, the state claims should ordinarily be

dismissed as well.*’ The policies implicated when a pendent

claim is one based on state law, however, are inapplicable

Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d

442 (1975); Vanderboom v. Sexton, 422 F.2d 1233, 1242 (8th

Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970).

Another requirement of pendent jurisdiction is substantiality of

the primary claim. UMW v. Gibbs, supra note 50, 383 U.S. at 725,

86 S.Ct. at 1138, 16 L.Ed.2d at 228. There can be no question but

that appellants’ primary claim—that a statutory cause of action

should be implied—is not wholly without merit, even though it does

not prevail. See Part III infra.

“UMW v. Gibbs, supra note 50, 383 U.S. at 726, 86 S.Ct. at

1139, 16 L.Ed.2d at 228.

** Albermarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct.

2362, 2371, 45 L.Ed.2d 280, 296 (1975), quoting United States v.

Burr, 25 F.Cas., No. 14,692d, pp. 30, 35 (Cir. Ct. Va. 1807) (No.

14) (Marshall, C. J.).

**UMW v. Gibbs, supra note 50, 383 U.S. at 726, 86 S.Ct. at

1139, 16 L.Ed.2d at 228.

** Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1340 & n.9.

* UMW v. Gibbs, supra note 50, 383 U.S. at 726, 86 S.Ct. at

1139, 16 L.Ed.2d at 228.

12a

when, as here, the pendent claims are federal.** As the

Supreme Court has declared,

the rationale of [the rule governing pendent state-law

claims] centers upon considerations of comity and the

desirability of having a reliable and final determination

of the state claim by state courts having more famili-

arity with controlling principles and the authority

to render a final judgment. These considerations favor-

ing state adjudication are wholly irrelevant when the

pendent claim is federal but is itself beyond the juris-

diction of the District Court... .’’”

Moreover, there is particularly good reason for retaining

a pendent claim when it owes its existence to federal law.”

Beginning with UMW v. Gibbs," the Supreme Court has

recognized the special competence of federal courts to ad-

judicate claims implicating federal policy as a strong basis

for exercising pendent jurisdiction. There the doctrine of

preemption limited the permissible scope of the state claim,

and the Court noted that ‘‘federal courts are particularly

appropriate bodies for application of pre-emption princi-

ples.’’ 62

Similarly, in Rosado v. Wyman“™ a Supremacy Clause “

claim not otherwise within the court’s jurisdiction was

°8 Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577

(1974).

°° 7d. at 548, 94 S.Ct. at 1385, 29 L.Ed.2d at 594 (footnote

omitted ).

6°13 C. Wright, A. Miller & E. Cooper, Federal Practice § 3567

at 454 (1975).

*: Supra note 50.

% UMW v. Gibbs, supra note 50, 383 U.S. at 729, 86 S.Ct. at

1140, 16 L.Ed.2d at 230.

8 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).

* U.S.Const. art. VI, el. 2.

13a

joined with a constitutional claim independently cognizable.

In upholding a district court’s exertion of pendent jurisdic-

tion, even after the constitutional claim had been dismissed

as moot, the Court observed that the statutory question was

one of federal policy and the argument for the exercise

of pendent jurisdiction as therefore particularly strong.®

Likewise, in Hagans v. Lavine, the Court approved an

assumption of pendent jurisdiction over a Supremacy

Clause claim in a situation where the constitutional claim,

though not insubstantial in a jurisdictional sense, was likely

without merit. In so doing, the Court again relied in large

measure on the special capability of federal courts to ad-

judicate federal claims.”

Our review of applicable Supreme Court precedents thus

reveals that the District Court’s decision was unresponsive

to the considerations that govern the exercise of pendent

jurisdiction when the pendent claim invokes federal law.

* Rosado v. Wyman, supra, note 63, 397 U.S. at 404, 90 S.Ct. at

1214, 25 L.Ed.2d at 451. Rejecting the argument that loss of power

over the primary claim because of mootness foreclosed considera-

tion of the pendent claim, the Court also noted:

We are not willing to defeat the common-sense policy of pen-

dent jurisdiction—the conservation of judicial] energy and the

avoidance of multiplicity of litigation—by a conceptual ap-

proach that would require jurisdiction over the primary claim

at all stages as a prerequisite to resolution of the pendent claim.

Id. at 405, 90 S.Ct. at 1214, 25 L.Ed.2d at 451 (footnote omitted).

This policy of avoiding piecemeal litigation is equally viable whether

the jurisdiction-conferring claim is dismissed on grounds of moot-

ness as in Rosado or for failure to state a claim as in the instant

case. Like the mooting of a claim, a dismissal under Fed.R.Civ.P.

12(b) (6) might not occur ‘‘until after substantial time and energy

have been expended looking toward resolution of [the] dispute

....’ Id. at 404, 90 S.Ct. at 1214, 25 L.Ed.2d at 451.

°° Supra note 58.

** Hagans v. Lavine, supra note 58, 415 U.S. at 548 & n. 14, 94

S.Ct. at 1885 & n. 14, 39 L.Ed.2d at 594-595 & n. 14.

l4a

In particular, the District Court should have determined

whether, with the stautory claim no longer in the case, con-

siderations of judicial economy, convenience and fairness

to litigants called for remittal of the federal constitutional

claims to the state courts. We do not suggest that a federal

court must automatically or necessarily assume jurisdiction

of every pendent federal claim. On the contrary, pendent

jurisdiction remains ‘‘a doctrine of discretion, not of plain-

tiffs’ rights.’’** We do say, however, that involvement of

federal law in a pendent claim is a factor significantly affect-

ing the proper exercise of that discretion. As Mr. Justice

Douglas noted in Rosado v. Wyman, ‘‘ [when] the claim in-

volved ... is one of federal law, the reasons for the exercise

of pendent jurisdiction are especially weighty, and excep-

tional circumstances [are] required to prevent the exer-

cise.’’ ® Since we perceive nothing out of the ordinary that

would justify a refusal of pendent jurisdiction here, we hold

that the District Court erred in dismissing appellants’ con-

* UMW v. Gibbs, supra note 50, 383 U.S. at 726, 86 S.Ct. at

1139, 16 L.Ed.2d at 228.

* 397 U.S. at 425, 90 S.Ct. at 1224, 25 L.Ed.2d at 463 (con-

curring opinion).

" Prior to Hagans v. Lavine, supra note 58, it might have been

argued that pendent jurisdiction could properly be disclaimed in

light of a legislative policy expressed in 28 U.S.C. § 1331(a) (1970)

that some constitutional claims below a minimum dollar amount

should be left to state courts. See id. 415 U.S. at 559, 94 S.Ct. at

1390, 39 L.Ed.2d at 600 (Rehnquist, J. dissenting). This policy,

however, was implicitly rejected by the Hagans majority as a per-

suasive ground for declining jurisdiction. Jd. at 548, 94 S.Ct. at

1385, 39 L.Ed.2d at 594. Moreover, Congress has recently revised

§ 1331(a) to eliminate the $10,000 amount in controversy require-

ment in civil actions brought ‘‘against the United States, any

agency thereof, or any officer or employee thereof in his official

eapacity.’’ See note 26 supra. Without deciding whether the re-

vision applies to this case, we think it clearly reflects a congres-

sional view that federal claimants suing federal defendants should

have access to federal courts regardless of the monetary value of

15a

stitutional claims,"* Our judgment accordingly will provide

for a remand of those claims for disposition on the merits."

III

Viewer appellants maintain that they are entitled to in-

junctive relief against the CPB for violation of various

provisions of the Public Broadcasting Act of 1967. Since

the Act does not explicitly authorize suits to enforce its

provisions, any cause of action that appellants may have

must be implied. The District Court noted that the Act un-

doubtedly was intended to benefit viewers of public tele-

vision.” Nonetheless, the court held that implication of a

their claims. Thus, any colorable basis for leaving the instant con-

stitutional claims to state courts is further undercut.

PBS suggests that since assumption of pendent jurisdiction will

result in decision rather than avoidance of a constitutional ques-

tion, pendent jurisdiction should be refused. Brief for Appellee

PBS at 29 n. 20. While the policy of avoiding difficult constitu-

tional questions is undoubtedly a strong one, Hagans v. Lavine,

supra note 58, 415 U.S. at 546-547 & n. 12, 94 S.Ct. at 1383-1384

& n. 12, 39 L.Ed.2d at 593-594 & n. 12, deolining jurisdiction here

will not eliminate the necessity of a constitutional decision, but

will simply leave its disposition to state courts. As we have shown,

there is no policy favoring state court adjudication of federal

claims.

" Whether a right of action is to be inferred from the Consti-

tution is normally a question on the merits rather than one of

jurisdiction. Bell v. Hood, 327 U.S. 678, 681-685, 66 S.Ct. 773,

775-777, 90 L.Ed. 939, 942-945 (1946) ; Cardinale v. Washington

Technical Inst., 163 U.S.App.D.C. 123, 127-128, 500 F.2d 791, 795-

796 (1974). See also Apton v. Wilson, supra note 52, 165 U.S.App.

D.C. at 35 & n. 16, 506 F.2d at 96 & n. 16. The District Court has

not yet addressed appellants’ constitutional claim on that basis,

see Network Project v. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1340 & n. 9, 1342, hence the remand. Of

course, we intimate no view as to how the question should be

decided.

™? Network Project v. C ion for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1338.

16a

right of action would seriously impede attainment of the

Act’s purpose and would inevitably enmesh the courts in

supervision of CPB’s day-to-day operations." We too con-

clude that a right of action should not be inferred, but for

reasons different from those articulated by the District

Court.

To begin with, ‘‘the inference of ...a private cause of

action not otherwise authorized by the statute must be con-

sistent with the evident legislative intent and, of course,

with the effectuation of the purposes intended to be served

by the Act.’’ * Furthermore, judicial implication of rights

of action should be approached with great care ‘‘lest a care-

fully erected legislative scheme—-often the result of a deli-

cate balance of Federal and state, public and private inter-

ests—be ekewed by the courts, albeit inadvertently.’’”

Thus, ‘‘{wjhen a court fairly perceives how the legislature

accomplished a resolution of the balance of forces, includ-

ing compromise and concession, the court must abide the

result without using its own scales to weigh the strength of

the component vectors.’’"* With the concerns in mind, we

turn to the Public Broadcasting Act to determine whether

implication of a right of action is ‘‘consistent with the evi-

dent legislative intent.’’™

In 1952, the Federal Communications Commission (FCC)

began to reserve channels for the exclusive use of educa-

"8 Td. at 1338-1339.

* National R.R. Passenger Corp. v. National Ass’n of R.R. Pas-

sengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646, 651-

652 (1974).

'S Holloway v. Bristol Meyers Corp., 158 U.S.App.D.C. 207, 210,

485 F.2d 986, 989 (1973).

6 Jd. at 223, 485 F.2d at 1002.

"? See text infra at note 80.

17a

tional television.” Because of the substantial installation

costs, the number of noncommercial stations grew slowly.”

In 1962, the Educational Television Facilities Act® re-

sponded to this problem by providing matching funds for

the construction of noncommercial stations." Despite rapid

growth in the number of stations following its passage,

however, shortage of funds and difficulty of exchanging

programs among the stations forestalled elevation of the

caliber of public telecasts.”

In 1966, the Carnegie Commission was organized to con-

duct a study.” The Commission concluded that federal fi-

nancial assistance would be required to provide the re-

sources necessary for development of superior programs."

Perceiving a danger in direct governmental involvement

in public broadcasting, however, the Commission recom-

mended that a private nonprofit corporation be created to

disburse governmental funds.“* The corporation envisioned

by the Commission would support local stations, ‘‘yet

[would] be restrained from control or the appearance of

control over them.’’ ** And the corporation would not escape

the scrutiny that properly follows the appropriation of fed-

eral morey, but would be insulated from interference with

"® See Sizth Report and Order on Television Allocation, 41 F.C.C.

148 (1952).

*® S.Rep.No. 67, 87th Cong., Ist Sess. 3 (1961).

*° Act of May 1, 1962, Pub.L.No, 87-447, tit. III, 76 Stat. 65, as

amended, 47 U.S.C. §§ 390 et seg. (1970 & Supp. V 1975), here-

inafter cited as codified.

*: 47 U.S.C. § 392,(1970).

*? S.Rep.No. 222, 90th Cong., Ist Sess. 4 (1967).

** Carnegie Commission on Educational Television, Public Tele-

vision: A Program for Action (1967).

** Id. at 68-79.

85 Td. at 36-42.

8¢ Id. at 37.

18a

the day-to-day operation of the programming portions of

its work.”

Congress incorporated many of the Carnegie Commis-

sion’s suggestions into the Public Broadcasting Act of 1967.

The Act authorized creation of the Corporation for Public

Broadcasting, ‘‘a nonprofit corporation . . . which [would]

not be an agency or establishment of the United States Gov-

ernment,’’ ** as a funding mechanism for virtually all activ-

ities comprising noncommercial broadcasting.** Consistently

with the expectations of the Commission, Congress con-

ceived CPB as a vehicle for infusing federal money into

public broadcasting without the introduction of govern-

ment direction or control.”

In determining whether private resort to the provisions

of the Act harmonizes with congressional intent, we do not

write on a clean slate. In Accuracy in Media, Inc. v. FCC,”

we considered the contention that FCC had authority to en-

force the Act’s call on CPB to facilitate programming with

‘“striect adherence to objectivity and balance in all pro-

grams or series of programs of a controversial nature.’’™

After reviewing the structure of the public broadcasting

system, we were of the view that Section 398 of the Public

Broadcasting Act expressly barred FCC jurisdiction over

CPB." That section specifies that nothing in the Educa-

** Jd.

** 47 U.S.C. § 396(b) (Supp. V 1975).

*° Id. §§ 396(g) (1), (2) (Supp. V 1975).

*°° H_R.Rep.No. 572, 90th Cong., Ist Sess. 15 (1967) ; S.Rep.No.

222, 90th Cong., Ist Sess. 4 (1967).

*. 172 U.S.App.D.C. 188, 521 F.2d 288 (1975).

*? 47 U.S.C. § 396(g)(1)(A) (Supp. V 1975).

* Accuracy in Media, Inc. v. FCC, supra note 91, 172 U.S.App.

D.C. at 192, 521 F.2d at 292.

19a

tional Television Facilities Act or the Public Broadcast-

ing Act ‘‘shall be deemed . . . to authorize any department,

agency, officer, or employee of the United States to exercise

any direction, supervision, or control over educational tele-

vision or radio broadcasting, or over the Corporation [for

Public Broadcasting] or any of its grantees or contractors

.’’* Since any enforcement of the statutory require-

ment would necessarily entail ‘‘supervision’’ of CPB,

we held that the plain words of Section 398 precluded FCC

from acting.”

PBS suggests that Section 398 also forecloses implica-

tion of a private right of action since entertainment of

private suits would necessarily involve the courts in ‘‘su-

pervision,’’ and courts, no less than administrative bodies,

are governmental ‘‘agencies.’’*’ We reject this sweeping

interpretation of the statutory prohibition. The plain pur-

pose of Section 398 is to prevent any governmental body

from influencing CPB in a manner calculated to turn it

into a governmental spokesman.” While Congress mani-

* See text supra at notes 80-82.

** 47 U.S.C. § 398 (1970).

** Accuracy in Media, Inc. v. FCC, supra note 91, 172 U.S.App.

D.C. at 192, 521 F.2d at 292.

*’ Brief for Appellee PBS at 24.

* Accuracy in Media, Inc. v. FCC, supra note 91, 172 U.S.App.

D.C. at 193, n. 17, 521 F.2d at 293 n. 17. There we stated our

understanding of § 398 as follows:

Section 398, formerly § 397 was amended by the 1967 Act

to include the Corporation and its activities. The original sec-

tion was enacted as a provision of the Educational Television

Facilities Act of 1962. The prohibition of federal interference

was included then as a part of an understanding that ‘‘the

FCC is not to exercise any control of funds under this pro-

gram’’. 8.Rep.No. 67, 87th Cong., 2d Sess., at 9 (1962), U.S.

Code Cong. & Admin. News 1962, pp. 1614, 1620. The expan-

- a

20a

festly believed that FCC involvement in enforcing the

Act’s directives would create the very dangers that Sec-

tion 398 sought to prevent,” it is unlikely that it made the

same judgment with respect to courts occasionally sum-

moned to resolve specific controversies arising under the

Act. We would need more than PBS offers to persuade us

that judicial enforcement of the Act’s mandates would con-

stitute ‘‘supervision’’ by a governmental ‘‘agency’’ with-

in the meaning of Section 398. This is not to say that the

section authorizes judicial action by negative implication,

but only that is is neutral with respect to the question.

In Accuracy in Media, we did not rely solely on Section

398 for our holding that FCC was without power to moni-

tor CPB’s compliance with its statutory obligations. The

structure of the Act and its history additionally persuaded

us that FCC jurisdiction would be contrary to the ‘‘care-

fully balanced framework designed by Congress for the

control of CPB activities.’’* We noted that Congress

had erected numerous statutory safeguards against par-

tisan abuses. For one conspicuous example, board member-

ship is limited to no more than eight out of the authorized

sion of the prohibition to apply to the Corporation and its

activities is in keeping with the original fear that financial

support by the Government could lead to control over speech.

* The Public Broadcasting Act leaves intact FCC regulatory

authority over individual non-commercial licensees. Accuracy n

Media, Inc. v. FCC, supra note 91, 172 U.S.App.D.C. at 196, 521

F.2d at 296. But FCC jurisdiction over CPB, we noted, could en-

large Government control over program content and thereby upset

the balance struck in Columbia Broadcasting Sys., Inc. v. Demo-

cratic Nat’l Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772

(1973) between the First Amendment rights of broadcast journal-

ists and the interests of the viewing public. Accuracy in Media,

Inc. v. FCC, supra note 91, 172 U.S.App.D.C. at 196-197, 521 F.2d

at 296-297.

10° Td. at 194, 521 F.2d at 294.

2la

fifteen from the same political party."* As a further check,

the Act insists that CPB’s accounts be audited annually

by an independent accountant,’” and contemplates audits

by the General Accounting Office,*** Of major importance

is Section 396(k), which assures that most of CPB’s budget

will be derived through the congressional appropriation

process.’* Section 396(i) complements these curbs with the

requirement that CPB submit ‘‘a comprehensive and de-

tailed report’’ on its operations and achievements to Con-

gress annually.’”

In consequence, we concluded that ‘‘[t]hrough these sta-

tutory requirements and control over the ‘pursestrings,’

Congress reserved for itself the oversight responsibility

for the Corporation.’’*** By that statement we clearly im-

plied that the statutory mandates are to be enforced ex-

clusively by Congress. So, as later in our opinion we stated

unequivocally, we viewed the provision advanced as the

source of a private right of action ‘‘as a guide te Con-

gressional oversight policy and as a set of goals to which

the Directors of CPB should aspire,’’*” and ‘‘not [as]

a a standard, legally enforcible by agency or

courts.’’ *

Appellants attempt to minimize the import of Accuracy

im Media by branding its discussion of congressional over-

* 47 U.S.C. § 396(¢)(1) (Supp. V 1975).

8 47 U.S.C. § 396(1)(1)(A) (Supp. V 1975).

3 47 U.S.C. § 396(1) (2) (A) (Supp. V 1975).

** 47 U.S.C. § 396(k) (Supp. V 1975).

°° 47 U.S.C. § 396(i) (Supp. V 1975).

10* Accuracy in Media, Inc. v. FCC, supra note 91, 172 U.S.App.

D.C. at 194, 521 F.2d at 294 (emphasis supplied) (footnote

omitted ).

*" Id. at 197, 521 F.2d at 297.

108 Td.

22a

sight as dicta.’ We think the discussion bore directly on

our decision and thus has considerably more precedential

value than appellants are willing to acknowledge. But even

assuming that it is dicta, without stare decisis effect, ap-

pellants point to nothing that minimizes its persuasive

force. Instead, they rely solely on a single passage from

the House committee report on the Public Broadcasting

Act as an indication that Congress counted on private

litigation to insure CPB compliance with the statutory

provisions at issue in this case."° That passage states :

The educational stations must not be permitted to be-

come vehicles for the promotion of one or another

political cause, party, or candidate. It is assumed that

the normal checks and balances within our political

system will insure that this principle will be constantly

safeguarded by interested citizens."

We are wholly unconvinced that by this reference to the

role of ‘‘interested citizens,’’ Congress evinced an intent

to authorize private rights of action. By our reading, it

connotes merely that Congress anticipated that citizen par-

ticipation through the political process would assist Con-

gress in its oversight function. Even if the statement is

deemed ambiguous, appellants’ interpretation cannot with-

stand diametrically opposed expressions in the legislative

history. Thus the passage of the committee report that di-

rectly follows the portion quoted reads:

In the same manner that the bill strives to insulate

the Corporation from governmental control, the bill

provides and the committee intends to see to i that

the local educational broadcasting stations conduct

1% Brief for Appellants at 38.

1° Td. at 28.

111 H_R.Rep.No. 572, 90th Cong., Ist Sess. 19-20 (1967), U.S.Code

Cong. & Admin. News 1967, p. 1810.

23a

their operations without Corporation interference or

control.**

Other legislative antecedents of the Act confirm the view

expressed in Accuracy in Media that Congress reserved

for itself exclusive oversight responsibility. Senator Cotton

explained:

If this bill becomes law, . . . and if, as time goes on,

we have occasion to feel that there is a slanting, a bias,

or an injustice, we instantly and immediately can do

something about it. First, we can make very uncom-

fortable, and give a very unhappy experience to, the

directors of the corporation. Second, we can shut down

some of their activities in the Appropriations Commit-

tee and in the appropriating process of Congress... .

The Corporation is much more readily accessible . . .

to the Congress, if it is desired to correct any injustice

or bias which might appear.’*

Senator Pastore makes this intent equally plain:

[T]he whole responsibility here under this law is to

the Congress of the United States .... We don’t have

to repeat the appropriation if we feel this is a failure.

This is all subject to the scrutiny of the Congress of

the United States."*

And, lest we forget, the very structure of the Act rein-

forces the thesis that Congress felt no need for judicial in-

tervention to exact due regard for the Act.’**

"37d at 20, U.S.Code Cong. & Admin. News 1967, p. 1810 (em-

phasis supplied).

™3 113 Cong.Rec. 13003 (1967).

‘4 Hearings on S. 1160 Before the Subcomm. on Communications

of the Senate Comm. on Commerce, 90th Cong., Ist Sess. 123 (1967)

(emphasis supplied).

"5 Text supra at notes 100-105.

24a

We hold that private rights of action are not part of

the machinery devised by Congress for control of CPB’s

activities. We accordingly affirm the District Court’s re-

jection of appellants’ statutory claims. For reasons articu-

lated earlier, however, we think their constitutional claims

were properly before the court.’* To the extent necessary

to enable their consideration on the merits, we reverse the

judgment appealed from and remand the case for further

proceedings consistent with this opinion.

So ordered.

6 Text supra at notes 50-71.

25a

APPENDIX B

UNITED STATES DISTRICT COURT,

DISTRICT OF COLUMBIA.

NETWORK PROJECT et al., Plaintiffs,

CORPORATION FOR PUBLIC BROADCASTING et al.,

Defendants.

Civ. A. No. 1059-73.

July 23, 1975.

Memorandum and Order

Corooran, District Judge.

In this action the plaintiffs seek declaratory and injunc-

tive relief and damages for alleged violations of their rights

under the Public Broadcasting Act of 1967 (the Act), as

amended, 47 U.S.C. § 396 et seq. (1970), and under the

First and Fifth Amendments to the Constitution. For

reasons set out below, the Court concludes that the case

against the individual defendants is moot; that the plain-

tiffs have no implied private right of action under the

Public Broadcasting Act of 1967; and that the complaint

is otherwise jurisdictionally defective.

The Parties

The plaintiffs are: (1) the Network Project, an unincor-

porated membership organization whose membership al-

legedly includes viewers of noncommercial educational tele-

vision; (2) the American Civil Liberties Union (ACLU),

many of whose members are alleged to be regular viewers

26a

of noncommercial educational television; (3) 11 individuals

who claim to be viewers of noncommercial educational tele-

vision; and (4) three individuals, viz., Paul Jacobs, Saul

Landau and John Kuney, who claim to have written, pro-

ducted or directed programs for noncommercial educa-

tional television.

The defendants are: (1) the Corporation for Public

Broadcasting (CPB); (2) the Public Broadcasting Service

(PBS); and (3) Clay T. Whitehead and Patrick J. Bu-

chanan (the federal defendants).

CPB is a nonprofit corporation, incorporated under the

laws of the District of Columbia and established pursuant

to the Act. The CPB was established to facilitate the devel-

opment of educational broadcasting, to assist in the devel-

opment of systems of interconnection for the distribution

of educational television and radio programs and to engage

in those activities in ways that will most effectively assure

the maximum freedom of noncommercial educational sys-

tems and stations from interference. 47 U.S.C. 4 396(g) (1)

(A)-(D).

PBS is a nonprofit membership corporation organized

under the laws of the District of Columbia. Its membership

consists of the licensees of noncommercial educational tele-

vision stations. The purpose of PBS, according to its Arti-

cles of Incorporation, is to arrange for and provide inter-

connection facilities for the distribution of noncommercial

broadcast programs and to generally assist and support

noncommercial broadcasting pursuant to the Public Broad-

casting Act.’ The Act provides that CPB will facilitate the

establishment of one or more interconnection systems; it

does not however provide specifically for PBS’s existence.

’ Appendix B, Appendices to Memorandum of Points and Au-

thorities in Support of the Public Broadcasting Service's Motion

to Dismiss, at 7-9 (Sept. 6, 1973).

27a

Clay T. Whitehead, one of the federal defendants, is the

former Director of the Office of Telecommunications Policy

(OTP), a part of the Executive Office of the President,

established pursuant to the President’s Reorganization

Plan No. 1 of 1970, 3 C.F.R. 1066 (1966-1970 Comp.). He

resigned from his position effective September 15, 1974,

after commencement of this action. The responsibilities of

the Director of OTP are, (and were) imter alia, to serve

as the President’s principal adviser on telecommunications,

assure effective communication of the views of the Execu-

tive Branch on telecommunications policy to Congress and

to the Federal Communications Commission (FCC), and to

coordinate telecommunications activities of the Executive

Branch. Executive Order No. 11556, September 4, 1970.

Patrick J. Buchanan, the other federal defendant, is a

former Special Consultant to the President. He resigned

effective November 15, 1974, after the commencement of

this suit. He gave advice and counsel to the President on

public broadcasting as part of his duties as Special Con-

sultant.

Pleadings

The plaintiffs complain that the defendants have acted

in violation of the Public Broadcasting Act and the First

and Fifth Amendments.

They cite defendants Whitehead and Buchanan for al-

legedly attempting to influence votes by the CPB Board of

Directors, to cause the CPB to cease funding controversial

public affairs programming, and to have certain educa-

tional network broadcasters removed from the air.

The plaintiffs also allege that CPB and PBS acted il-

legally in that they engaged in the practices of censoring

entire programs, or parts thereof, prior to distribution to

local stations; prescreening and allowing others to pre-

28a

screen programs produced for noncommercial educational

television prier to distribution; issuing warnings to—

‘‘flagging’’—local stations of program content considered

by them to be controversial; requiring detailed descrip-

tions of program content in applications for funding; and

allowing the federal defendants (Whitehead and Buchanan)

to affect program content. In addition, plaintiffs charge vio-

lations of the Act by CPB in that CPB allegedly partici-

pates illegally in programming and operation of a network.

Finally, they charge that the CPB Board of Directors is

illegally constituted.

CPB and PBS and the federal defendants have each

moved to dismiss the action on various grounds. Considera-

tion of the various arguments of the defendants follows.

Ifl

Mootness As To The Federal Defendants

As noted, the plaintiffs allege illegal activity on the part

of the federal defendants Whitehead and Buchanan both

as individuals and in their official capacities. On January

16, 1975, the federal defendants filed a supplemental mem-

orandum in support of their motion to dismiss which added

the additional ground that since Whitehead and Buchanan

no longer occupy official positions with the executive office

the claims against them are moot. The Court agrees.

The federal courts are limited to the resolution of actual

eases and controversies by Article III of the Constitution.

There must be ‘‘concrete legal issues, presented in actual

cases, not abstractions.’’ Golden v. Zwickler, 394 U.S. 103,

108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969). If it is deter-

mined at any stage of the proceeding that a case was moot

when initiated or became moot because of subsequent

events, the Court is without jurisdiction because ‘‘[m)oot-

ness is a jurisdictional question.’’ North Carolina v. Rie,

29a

404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).

Accord, People of State of California v. San Pablo &

Tulane R. Co., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747

1993); State of Alabama ez rel. Baaley v. Woody, 473

F.2d 10 (5th Cir. 1973).

We look first at the claims asserted against the federal

defendants as individuals.

It is clear that the declaratory and injunctive relief

sought against these defendants relates to power which

they possessed as government officials and that there is no

basis now, after their resignations from office, for asserting

that these individuals represent a threat to the exercise

of illegal direction, supervision or control over CPB or its

grantees.

The claims against these defendants in their indi-

vidual capacities are also based upon § 398 of the Act, and

the First Amendment. But § 398 is limited in its application

to departments, agencies, officers and employees of the

United States, and the First Amendment acts only as a

restraint upon government action, not that of private per-

sons. Cf. Public Utilities Commission v. Pollak, 343 U.S.

451, 461, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). Since White-

head and Buchanan are no longer in the class of people

against whom these provisions operate, the claims against

them in their individual capacities are moot. Cf. DeF unis

v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164

(1974).

The claims against the federal defendants in their official

capacities, however, require further consideration.

Fed.R.Civ.P. 25(d)(1) provides for ‘‘automatic substi-

tution’’:

When a public officer is a party to an action in his

official capacity and during its pendency dies, resigns,

or otherwise ceases to hold office, the actions does not

abate and his successor is automatically substituted as

a party.

30a

The Advisory Committee Notes state that ‘‘[i]n general

{the rule] will apply whenever effective relief would call

for corrective behavior by the one then having official status

and power, rather than one who has lost that status and

power through ceasing to hold office.’” 3B J. Moore, Fed-

eral Practice § 25.01(13), at 25-38 (2d ed. 1974). See also

Spomer v. Littleton, 414 U.S. 514, 521 n. 9, 94 S.Ct. 685, 38

L.Ed.2d 694 (1974); 3B J. Moore, Federal Practice { 21.09

(1)-(3) (3rd ed. 1974). Substitution is appropriate when

the original officer is replaced by an acting officer. City of

New York v. Ruckelshaus, 358 F.Supp. 669 (D.D.C.1973),

aff’d sub nom. Train v. City of New York, 420 U.S. 35, 95

S.Ct. 839, 43 L.Ed.2d 1 (1975).

The ‘‘effective relief’’ test suggested in the Advisory

Committee Notes supports application of Rule 25(d)(1)

in this case. The effective relief sought by plaintiffs here,

declaratory and injunctive relief regarding past, present

and future actions, would have to apply to officials in office.

Thus, we must determine whether, in this case, there are ap-

propriate substitute officials within the meaning of the

rule.

As to Buchanan it is alleged that upon his resignation his

‘*duties’’ were taken over by Dean Burch, Counsellor to the

President, and later distributed among three different

presidential advisers. The difficulty in applying Rule 25(d)

(1) to this situation is that Buchanan’s position as Special

Consultant to the President is not designated to have speci-

fic duties and functions under any statutes or regulations.

In view of the personal nature of that office, so closely

associated with the President, this Court finds that there is

no adequate basis for the operation of Rule 25(d)(1) as

to defendant Buchanan. Since Buchanan no longer occupies

his official position and relief against him as an individual

is moot, this Court finds that all claims against defendant

Buchanan should be dismissed as moot.

3la

The situation as to Whitehead is different. It is uncon-

tradicted that Whitehead has a successor, John Eger,

occupying his position as Acting Director. Eger’s substitu-

tion under Rule 25(d)(1) would accordingly be appro-

priate.

However, the federal defendants still contend that ac-

tions against Eger, Whitehead’s successor, would also be

moot because the plaintiff’s have failed adequately to allege

that the successor has continued the allegedly illegal acts

of the predecessor. The 1961 amendments to Rule 25(d) (1)

removed the requirement that plaintiff must demonstrate

the need for continuing the action upon substitution; how-

ever, the complaint may be subject to challenge for moot-

ness by the successor. 3B J. Moore, Federal Practice

{| 25.09(3) ; Advisory Committee Notes of 1961 to Rule 25

(d)(1), td. J 25.01(13).

In the recent case of Spomer v. Littleton, 414 U.S. 514,

94 S.Ct. 685, 38 L.Ed.2d 694 (1974), the Supreme Court

considered the issue of mootness in the context of ‘‘auto-

matic substitution’’ of the defendant’s elected successor.’

The plaintiffs, black citizens, alleging that the local prosecu-

tor and his staff had engaged in specific acts of racial dis-

crimination, sought declaratory and injunctive relief and

damages. The Court held that where the complained of

illegal actions are personal, no allegations being made that

the actions reflect official administration policy, and the

plaintiff fails to allege specifically that the successor in-

tends to continue the actions, the complaint is subject to

dismissal as moot. The Court distinguished Allen v. Re-

gents of the University System of Georgia, 304 U.S. 439,

444-45, 58 S.Ct. 980, 82 L.Ed. 1448 (1938), where university

*In Spomer v. Littleton, supra, there was automatic substitution

of a successor under Supreme Court Rule 48(3), which is equiva-

lent to and based upon Fed.R.Civ.P. 25(d) as amended in 1961.

414 US. at 521 n. 9, 94 S.Ct. 685.

32a

officials challenged tax collection policies of the Collector of

Internal Revenue which reflected interpretations of the In-

ternal Revenue Code. The Court held in Allem that the

allegations were sufficient to justify substitution and with-

stand challenge for mootness.

Here the plaintiffs have alleged that defendants White-

head and Buchanan ‘‘and other officers and employees of

the United States’’ influenced and coerced CPB Directors,

employees, and grantees, and employees of PBS, with the

intent to interfere with and control program content. Al-

though plaintiffs allege specific acts of defendants White-

head and Buchanan, they have not alleged that those acts

reflected a general policy of the Executive Branch which

could be assumed to have continued to exist under White-

head’s successor. The general allegations as to other un-

identified officers and employees do not cure this defect.

Therefore, the Court concludes that the claims for declara-

tory and injunctive relief against the federal defendant

Whitehead and his successor in their official capacities are

moot.’

Implication Of A Private Right Of Action Under The Pub-

lic Broadcasting Act of 1967

The plaintiffs allege that the actions of the defendants

violate §4 396 and 398 of the Act and that they have a

private right of action to enforce those sections. Although

unable to identify an express provision of such a right,

‘Similarly, plaintiffs’ Ninth Claim for Relief, see note 5 infra,

alleging that one member of the CPB Board of Directors, Irving

Kristol, is serving illegally because he has not been confirmed by

the Senate, 47 U.S.C. § 396(c)(1), is also moot for the reasons

stated above. The Court is reliably informed that Mr. Kristol

severed all official connections with CPB on or about December

31, 1973.

33a

plaintiffs contend that private actions are not precluded

by Congress and this particular act necessarily implies a

right of action. The Court disagrees.

Recent cases indicate that implication of a right of action

from a statute requires close examination of the statute and

its legislative history—‘‘the inference of such a private

cause of action not otherwise authorized by the statute

must be consistent with the evident legislative intent and,

of course, with the effectuation of the purposes intended

to be served by the act.’’ National Railroad Passenger

Corp. v. National Association of Railroad Passengers, 414

U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974)

(Amtrak). See also Cort v. Ash, —— U.S. ——, 95 S.Ct.

2080, 45 L.Ed.2d 26 (1975); Securities Investor Protection

Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d

263 (1975) (SIPC); Holloway v. Bristol-Meyers Corp., 158

U.S.App.D.C. 207, 485 F.2d 986 (1973). In each of these

cases, the courts denied a claim to an implied right of ac-

tion because such action might disrupt the system estab-

lished by Congress for accomplishing the purposes of the

statute, and there was no indication of a legislative intent

to permit the action.

Those cases, of course, contrast sharply with J. I. Case v.

Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).

which did recognize an implied right of action. There the

Court held that the Securities Exchange Act of 1934, clearly

a regulatory and remedial statute, created a right of action

in favor of stockholders damaged by misrepresentations

violative of 4 14(a) of the Securities Exchange Act of 1934.

The Court concluded that the ‘‘broad remedial purposes’’

of the Act and the necessity for private action to effectuate

those purposes supported the implication of such a right.

But the Public Broadcasting Act is neither remedial nor

regulatory, and in contrast to Borak there is no indication

that the Congress passed the Act to protect any threatened

rights.

34a

The plaintiffs contend, however, that as viewers they fall

within a category of persons which Congress sought to

benefit and that there will be no assurance that those bene-

fits will be available unless viewers are given a right of

action to police the activities of CPB.

It is unquestioned that the Act accords benefits to view-

ers. That is apparent from § 396(a) which provides in part:

(4) that it furthers the general welfare to encourage

noncommercial educational radio and television broad-

cast programming which will be responsive to the in-

terests of people both in particular localities and

throughout the United States, and which will constitute

an expression of diversity and excellence ;

(5) that it is necessary and appropriate for the

Federal Government to complement, assist, and sup-

port a national policy that will most effectively make

noncommercial educational radio and television service

available to all citizens of the United States; .... 47

U.S.C. § 396(a).

But although the ‘‘intent to benefit’’ is apparent,‘ the

plaintiffs still fail to demonstrate that the right of action

is necessary and appropriate within the meaning of Borak,

Cort, Amtrak, SIPC, and Holloway, supra.

In determining whether an alleged implied right of ac-

tion exists in this case it is important to keep in mind

not only what Congress sought to accomplish but the means

they provided to accomplish their declared purposes.

The pacture which emerges from the statute and its

legislative history is that Congress used every effort and

every device available to create an entity which would pro-

‘ The plaintiffs have not specifically argued that the writer, pro-

ducer, and director plaintiffs were within the group intended to

be benefited, and this Court finds no basis for such an assertion.

35a

vide maximum financial and other assistance to the non-

commercial educational broadcasting industry with a mini-

mum of federal government involvement. The design is

capsulized in the language of 4 398 which says in part:

.. . Nothing contained in this part shall be deemed

. . . to authorize any department, agency, officer, or

employee of the United States to exercise any direc-

tion, supervision, or control over educational television

or radio broadcasting, or over the Corporation [or] any

of its grantees or contractors, or over the charter or

by-laws of the Corporation . . .. § 398.

By the same token there is no indication whatsoever that

Congress intended to provide a private right of action to

dissident viewers or other individuals who might be dissatis-

fied with the operations of CPB.

In the view of the Court, were it to allow suits under the

Act by persons who had no more than a viewing interest

or who were otherwise merely dissatisfied with the manner

in which CPB or its grantees carry out the purposes of the

Act, it would seriously impede the attainment of the stated

purposes of the Act, and it would inevitable enmesh the

courts in supervision of the detailed day-to-day operations

of CPB—a result which Congress clearly intended to

avoid.°

* Plaintiffs’ Ninth Claim for Relief alleges, inter alia, that CPB's

Board of Directors is improperly constituted, in violation of the

Public Broadcasting Act of 1967 and of the First Amendment.

Even if such a claim were judicially cognizable, see Baker v. Carr,

369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ; Keim v. United

States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed.774 (1900), inasmuch

as it is embraced within the Public Broadcasting Act of 1967, the

claim must fail for the reasons stated above in this Part. Further-

more, bottoming such a claim under the rubric of the First Amend-

ment is of no avail in these circumstances. See Part V infra. See

also note 3 supra.

36a

Jurisdictional Issues

We now turn to plaintiffs’ claims of jurisdiction based

on 28 U.S.C. $§ 1361, 1337 and 1331(a).

28 U.S.C. § 1361. District courts have original jurisdiction

‘‘to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plain-

tiff.’’ The Court agrees with the defendants that § 1361 is

inappropriate in this case because CPB and PBS are not

agencies of the United States and the members of the CPB

Board of Directors are not officers of the United States.

The Act specifically provides that CPB ‘‘will not be an

agency or establishment of the United States Government.’’

47 U.S.C. § 396(b).°

28 U.S.C. § 1337. District Courts have original jurisdic-

tion ‘‘of any civil action or proceedings arising under any

Act of Congress regulating commerce or protecting trade

and commerce against restraints and monopolies.’’ Plain-

tiffs assert jurisdiction under this section by virtue of the

fact that the Act came into being as an amendment (Title

III) to the Communications Act of 1934, which has been

held to be an act regulating commerce. National Broadcast-

ing Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997,

87 L.Ed. 1344 (1934).’ The defendants counter that the Act,

by its terms, was enacted under the ‘‘general welfare’’

* Necessarily, then, plaintiffs’ reliance on PBS being an agent

of CPB for mandamus purposes must also fail. Moreover, PBS is

not mentioned at all in the Act.

* It does not follow, however, that there is an implied right of

action under the Communications Act of 1934. See, e. g., Smothers

v. Columbia Broadcasting System, Ic., 351 F.Supp. 622, 624-25

(C.D.Cal. 1972), and cases cited therein.

37a

clause of the Constitution,*® not the commerce clause, thus

making § 1337 applicable to this action.

We need not resolve this dispute in view of our holding,

supra, that there is no implied private right of action under

the Public Broadcasting Act, even if the Act is held to be a

regulation of commerce.’

28 U.S.C. § 1331(a). This is the ‘‘federal question’’ sec-

tion, under which plaintiff-viewers assert violations of the

First and Fifth Amendments. Plaintiff-viewers claim that

the defendants have violated their First Amendment rights

to uncensored programs, and to information and knowl-

edge through noncommercial educational television.

However, as plaintiffs recognize, § 1331(a) is not avail-

able to confer jurisdiction unless the plaintiffs can also

meet the $10,000 requirement. But, it is well established,

too, that a dismissal of the complaint for failure to meet

the $10,000 requirement is inappropriate unless it appears

to a legal certainty that the plaintiff could not recover that

statutory amount. St. Paul Mercury Indemnity Co. v. Red

Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ;

Gomez v. Wilson, 155 U.S.App.D.C. 242, 251, 477 F.2d 411,

420 (1973).

When, as here, the allegation of the jurisdictional amount

is controverted, the burden is on the plaintiff to establish

that amount. Gomez v. Wilson, supra. See also Hague v.

C.I.0., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ;

* 47 U.S.C. § 396(a) (4) provides:

The Congress hereby finds and declares that it furthers the

general welfare to encourage noncommercial educational radio

and television broadcast programming which will be responsive

to the interests of people both in particular localities and

throughout the United States, and which will constitute an

expression of diversity and excellence. (Emphasis added. )

* In that instance, there is no pendent jurisdiction under § 1337.

Post v. Payton, 323 F.Supp. 799 (E.D.N.Y. 1971).

38a

KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197,

81 L.Ed. 183 (1936). Moreover, the fact that the plaintiff

alleges the deprivation of some constitutional right, as

here, does not translate to mean that the requisite juris-

dictional amount need not be satisfied. Lynch v. Household

Finance Corp., 405 U.S. 538, 547, 92 S.Ct. 1113, 31 L.Ed.2d

424 (1972) ; James v. Lusby, 162 U.S.App.D.C. 352, 499 F.2d

488 (1974); Gomez v. Wilson, supra.

Assuming, arguendo, that the plaintiff-viewers have

properly pleaded a constitutional right to receive uncen-

sored noncommercial educational television programs, the

Court concludes that their attempted valuations of that

right do not satisfy the statutory standard.”

Plaintiffs contend that the $10,000 requirement is met by

reason of the following:

(1) First Amendment rights are worth more than $10,-

000 by definition ;

(2) it would cost each plaintiff $10,000 to purchase the

unconstitutionally censored programs;

(3) the damages done to noncommercial educational

broadcasting has harmed each plaintiff at least $10,000;

and

(4) the cost to the defendants in the event of a judg-

ment for the plaintiffs would be in excess of $10,000.

nevertheless clear beyond doubt that each of the plaintiffs must

individually have in controversy an amount in excess of $10,000.

Zahn v. International Paper Co., 414 U.S. 291, 94 8.Ct. 505, 38

L.Ed.2d 511 (1973) ; Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053,

22 L.Ed.2d 319 (1969).

For the purposes of a motion to dismiss, it is clear, of course,

that the allegations of plaintiffs’ complaint must be taken as true.

Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18

L.Ed.2d 704 (1967).

39a

We look at each of these claims.

(1) As to plaintiff-viewers’ assertion that First Amend-

ment rights are by definition worth more than $10,000, it is

well established in this Circuit that ‘‘any automatic finding

of the required amount in controversy just because (con-

stitutional) rights are in issue may be more than § 1331(a)

will tolerate.’ Gomez v. Wilson, supra, 155 U.S.App.D.C.

at 252 n. 56, 477 F.2d at 421 n. 56. Accordingly, this asser-

tion, without more, must fail.

(2) In measuring the pecuniary value to the claim of

the deprivation of their right to receive, plaintiffs at-

tempt to ascribe that valuation in terms of the cost to

them in purchasing ‘‘lost’’ programs. This argument,

while ingenious," is wide of the mark for two reasons.

First, this argument employs a measure of damages not

consonant with the asserted loss of a right to receive as

set out in their complaint. The claim of the plaintiff-view-

ers is that they were deprived of the opportunity to ex-

perience the ideas and viewpoints contained in certain

programs via noncommercial educational television; their

complaint does not allege that they were precluded from

purchasing such programs. Indeed, plaintiffs’ measure of

damages in this regard would appear to violate the rules

and regulations of the Federal Communications Commis-

sion that local licensees must retain the absolute right to

edit, select and reject programs. 47 C.F.R. § 73.658(e).

See also National Broadcasting Co. v. United States, sw

pra. More basically, plaintiffs’ argument is devoid of any

competent proof that the cost of acquiring a certain pro-

gram allegedly censored by defendants would in fact ex-

ceed $10,000. Cf. James v. Lusby, supra.

****Of course, pleadings must be something more than an in-

genious academic exercise in the conceivable.’’ United States v.

SCRAP, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254

(1973).

40a

(3) Plaintiffs’ contention that they are harmed because

the institution of noncommercial educational television

broadcasting is damaged by the defendants’ assertedly un-

lawful activities is wholly speculative and without any

factual foundation. Indeed, there is a conspicuous lack of

any concrete injury susceptible to even a low standard of

pecuniary valuation. In resolving complex constitutional

claims, the federal judicial process may not operate in an

amorphous, undefined atmosphere.”

(4) In terms of the judgment which the case would pro-

duce with regard to the effect on the defendants’ activi-

ties, were the plaintiffs successful on the merits, the plain-

tiffs have failed utterly to specify what costs would con-

ceivably be involved. Furthermore, it would appear, as

CPB and PBS contend, that the prayer for relief, if

granted in full, would merely require CPB and PBS to

allocate funds differently than they do at present, rather

than resulting in increased costs to those defendants.

Thus, it is clear that none of the plaintiff-viewers has

satisfied the requisite jurisdictional amount, and the com-

plaint must be dismissed as to them."* Post v. Payton,

12—n an analogous context, the Supreme Court has consistently

held that generalized grievances common to a class do not ordi-

narily satisfy jurisdictional prerequisites. See, e. g., Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 94 S.Ct. 2925,

41 L.Ed.2d 706 (1974). Similarly, the interests at stake in federal

constitutional litigation must generally be those of the plaintiffs at

bar, rather than those of third parties. See, e. g., United States v.

Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) ; Tileston

v. Ullman, 318 U.S. 44, 63 S.Ct, 493, 87 L.Ed. 603 (1943).

'® The claims of non-viewer plaintiffs Jacobs, Kuney and Landau,

set out in the Fourth Claim for Relief, are not on any firmer foot-

ing. In their affidavits these plaintiffs assert that, as a result of

the alleged failure of CPB and PBS to distribute programs they

wrote, directed and produced, they have lost their jobs, have been

unable to find similar positions in the noncommercial educational

television industry, and that their reputations have been injured.

4la

supra. Cf. Kheel v. Port of New York Authority, 457 F.2d

46 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34

L.Ed.2d 248 (1972).

In light of the foregoing, the Court need not reach the

remaining First Amendment claims of the plaintiff-view-

ers, viz., whether CPB and PBS are sufficiently imbued

with ‘‘state action;’’** whether these plaintiffs have

stated a cause of action of a right to receive under the

First Amendment; ** and whether these plaintiffs have the

requisite ‘‘standing’’ to maintain such a cause of action.”

They seek damages for the supposed injury to their professional

reputations and for the failure to have their work product dis-

tributed over noncommercial educational television.

The damages these plaintiffs seek are not for the injury from

CPB’s and PBS’s denial of their alleged rights to communicate

ideas or experiences, but rather are damages emanating from loss

of jobs and injuries to reputations. These rights, whatever their

scope, and the damages, if any, flowing from their alleged viola-

tion, are irrelevant to the matter in controversy. The First and

Fifth Amendments and the Public Broadcasting Act of 1967 do

not protect either these plaintiffs’ right to work in the noncommer-

cial educational television field or their professional reputations

in that field. Therefore, the Fourth Claim for Relief must be dis-

missed for failure to state a cause of action upon which relief can

be granted. Fed.R.Civ.P. 12(b) (6).

* See, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 346,

95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Ureenya v. George Wash-

ington University, 512 F.2d 556 (D.C.Cir. 1975).

S See, e g., Kleindienst v. Mandel, 408 U.S. 753, 82 S.Ct. 2576,

33 L.Ed.2d 683 (1972); Avins v. Rutgers, 385 F.2d 151 (3d Cir.

1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982

(1968). Compare Comment—The Right to Receive and the Commer-

cial Speech Doctrine: New Constitutional Considerations, 63 Geo.

L.J. 775 (1975).

* See, e. g., Warth v. Seldin, —— U.S. ——, 95 8.Ct. 2197, 45

L.Ed.2d 343 (1975) ; Schlesinger v. Reservists Comm. to Stop the

42a

Accordingly, it is by the Court this 23rd day of July,

1975.

Ordered, adjudged and decreed that plaintiffs complaint

against the federal defendants Whitehead and Buchanan

be, and the same is hereby, dismissed as moot; and it is

further

Ordered, adjudged and decreed that plaintiff’s Ninth

Claim for Relief in the complaint, concerning Irving Kris-

tol, be, and the same is hereby, dismissed as moot; and it

is further

Ordered, adjudged and decreed that plaintiffs’ com-

plaint alleging a private cause of action for damages and

declaratory and injunctive relief under the Public Broad-

casting Act of 1967 be, and the same is hereby, dismissed

for failure to state a claim upon which relief can be

granted; and it is further

Ordered, adjudged and decreed that plaintiffs’ com-

plaint alleging jurisdiction under 28 U.S.C. §§ 1337 and

1361 (1970) be, and the same is hereby, dismissed for

want of such jurisdiction; and it is further

Ordered, adjudged and decreed that plaintiffs’ com-

plaint alleging jurisdiction under 28 U.S.C. §1331(a)

(1970) be, and the same is hereby, dismissed for failure

to satisfy the $10,000 jurisdictional amount; and it is

further

Ordered, adjudged and decreed that plaintiffs’ Fourth

Claim for Relief in the complaint be, and the same is

hereby, dismissed for failure to state a claim upon which

relief can be granted.

War, supra; United States v. Richardson, 418 U.S. 166, 94 58.Ci

2940, 41 L.Ed.2d 678 (1974); 8. ». D., 410 U.S. 614, 93 S.Ct. 1146,

35 L.Ed.2d 536 (1973).

43a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1977

Civil 1059-73

No. 75-1963

Tue Network Provsect, er at., Appellants

Vv.

CORPORATION FOR Pusiic Broapcastinc, A CorporaTion,

ET AL.

Appeal from the United States District Court for the

District of Columbia.

Before: Rosiwson and Wixey, Cirenit Judges, and

WriuusM J. Jameson,* United States Senior District

Judge for the District of Montana

Judgment

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel.

On consideration thereof It is ordered and adjudged by

this Court that the judgment of the District Court ap-

of appellants’ statutory claims and to the extent necessary

to enable consideration of the constitutional claims on the

merits, we reverse the judgment appealed from and re-

44a

mand the case for further proceedings, consistent with

the opinion of the Court filed herein this date.

Per Curiam

For the Court

A. Fisher, Clerk

/s/ Rospert A. Bonner

, By: Robert A. Bonner

Chief Deputy Clerk

Date: July 22, 1977

Opinion for the Court filed by Circuit Judge Robinson

*Sitting by designation pursuant to 28 U.S.C.

§ 294(d) (1970)

45a

APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. A-326

Pusuic Broapcastine Service, Petitioner

Tue Network PRoJEcT, ET AL.

Order Extending Time To File Petition for

Writ of Certiorari

Upon Consmeration of the application of counsel for

petitioner,

Ir Is Onperep that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 15,

1977.

/8/ Warren E. Burcer

Chief Justice of the United States.

Dated this 13th day of October, 1977

46a

APPENDIX E

28 U.S.C. §1331(a) (1970), as amended by Act of Oct. 21. 1978,

Pub. L. No. 94-574, §2, 90 Stat. 2721.

§ 1331. Federal question; amount in controversy; costs.

(a) The district courts shall have original jurisdiction of

all civil actions wherein the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest

and costs, and arises under the Constitution, laws, or

treaties of the United States, except that no such sum or

value shall be required in any such action brought against

the United States, any agency thereof, or any officer or

employee thereof in his official capacity.

28 U.S.C. § 1337 (1970)

§ 1337. Commerce and anti-trust regulations.

The district courts shall have original jurisdiction of

any civil action or proceeding arising under any Act of

Congress regulating commerce or protecting trade and

commerce against restraints and monopolies.

28 U.S.C. § 1361 (1970)

§ 1361. Action to compel an officer of the United States to

perform his duty.

The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer

or employee of the United States or any agency thereof

to perform a duty owed to the plaintiff.

First Amendment to the United States Constitution

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

47a

Fifth Amendment to the United States Constiiution

No person shall be held to answer for a capital, or oth-

erwise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

The Public Broadcasting Act of 1967, 47 U.S.C. §§ 396 ef seq.

(1870 & Supp. V 1975).

§ 396. Corporation for Public Broadcasting.

(a) Congressional declaration of policy.

The Congress hereby finds and declares—

(1) that it is in the public interest to encourage the

growth and development of noncommercial educa-

tional radio and television broadcasting, including the

use of such media for instructional purposes;

(2) that expansion and development of noncommer-

cial educational radio and television broadcasting and

of diversity of its programing depend on freedom,

imagination, and initiative on both the local and na-

tional levels;

(3) that the encouragement and support of non-

commercial educational radio and television broad-

casting, while matters of importance for private and

local development, are also of appropriate and im-

portant concern of the Federal Government;

(4) that it furthers the general welfare to encour-

age noncommercial educational radio and television

48a

broadcast programing which will be responsive to the

interests of people both in particular localities and

throughout the United States, and which will consti-

tute an expression of diversity and excellence;

(5) that it is necessary and appropriate for the

Federal Government to complement, assist and sup-

port a national policy that will most effectively make

noncommercial educational radio and television serv-

ice available to all the citizens of the United States;

(6) that a private corporation should be created to

facilitate the development of educational radio and

television broadcasting and to afford maximum pro-

tection to such broadcasting from extraneous inter-

ference and control.

(b) Establishment of Corporation; application of District

of Columbia Nonprofit Corporation Act.

There is authorized to be established a nonprofit cor-

poration, to be known as the ‘‘Corporation for Public

Broadcasting’’, which will not be an agency or establish-

ment of the United States Government. The Corporation

shall he subject to the provisions of this section, and, to

the extent consistent with this section, to the District of

Columbia Nonprofit Corporation Act.

ment; political party affiliation; qualifications; repre-

sentation of interests; term of office; vacancies.

(1) The Corporation shall have a Board of Directors

(hereinafter in this section referred to as the ‘‘Board’’),

consisting of fifteen members appointed by the President,

by and with the advise and consent of the Senate. Not

more than eight members of the Board may be members

of the same political party.

49a

(2) The members of the Board (A) shall be selected

from among citizens of the United States (not regular

fulltime employees of the United States) who are eminent

in such fields as education, cultural and civic affairs, or

the arts, including radio and television; (B) shall be se-

lected so as to provide as nearly as practicable a broad

representation of various regions of the country, various

professions and occupations, and various kinds of talent

and experience appropriate to the functions and responsi-

bilities of the Corporation.

(3) The members of the initial Board of Directors shall

Serve as incorporators and shall take whatever actions

are necessary to establish the Corporation under the Dis-

trict of Columbia Nonprofit Corporation Act.

(4) The term of office of each member of the Board

shall be six years; except that (A) any member appointed

to fill a vacaney occurring prior to the expiration of the

term for which his predecessor was appointed shall be

appointed for the remainder of such term; and (B) the

terms of office of members first taking office shall begin

on the date of incorporation and shall expire, as desig-

nated at the time of their appointment, five at the end of

two years, five at the end of four years, and five at the

end of six years. No member shall be eligible to serve in

excess of two consecutive terms of six years each. Not-

withstanding the preceding provisions of this paragraph,

a member whose term has expired may serve until his

successor has qualified.

(5) Any vacancy in the Board shall not affect its power,

but shall be filled in the manner in which the original

appointments were made.

(d) Election of Chairman and Vice Chairman or Vice

Chairmen; nonfederal employment status of mem-

bers; compensation and travel expenses.

50a

(1) The President shall designate one of the members

first appointed to the Board as Chairman; thereafter the

members of the Board shall annually elect one of their

number as Chairman. The members of the Board shall

also elect one or more of them as a Vice Chairman or

Vice Chairmen.

(2) The members of the Board shall not, by reason of

such membership, be deemed to be employees of the

United States. They shall, while attending meetings of the

Board or while engaged in duties related to such meet-

ings or in other activities of the Board pursuant to this

subpart be entitled to receive compensation at the rate of

$100 per day including travel time, and while away from

their homes or regular places of business they may be

allowed travel expenses, including per diem in lieu of

subsistence, equal to that authorized by faw (5 U.S.C.

5703) for persons in the Government service employed

intermittently.

(e) Officers and employees; term of office; compensation,

qualifications, and removal; political party affiliation,

political test or qualification when taking personnel

actions.

(1) The Corporation shall have a President, and such

other officers as may be named and appointed by the

Board for terms and at rates of compensation fixed by

the Board. No individual other than a citizen of the

United States may be an officer of the Corporation. No

officer of the Corporation, other than the Chairman and

any Vice Chairman, may receive any salary or other

compensation from any source other than the Corpora-

tion during the period of his employment by the Corpora-

tion. All officers shall serve at the pleasure of the Board.

(2) Exeept as provided in the second sentence of sub-

section (c)(1) of this section, no political test or qualifi-

cation shall be used in selecting, appointing, promoting,

5la

or taking other personnel actions with respect to officers,

agents, and employees of the Corporation.

(f) Nonprofit and nonpolitical nature of the Corporation.

(1) The Corporation shall have no power to issue any

shares of stock, or to declare or pay any dividends.

(2) No part of the income or assets of the Corporation

shall inure to the benefit of any director, officer, employee,

or any other individual except as salary or reasonable

compensation for services.

(3) The Corporation may not contribute to or other-

wise support any political party or candidate for elective

public office.

(g) Purposes and activities of the Corporation; powers

under the District of Columbia Nonprofit Corpora-

tion Act.

(1) In order to achieve the objectives and to carry out

the purposes of this subpart, as set out in subsection (a)

of this section, the Corporation is authorized to—

(A) facilitate the full development of educational

broadcasting in which programs of high quality, ob-

tained from diverse sources, will be made available to

noncommercial educational television or radio broad-

cast stations, with strict adherence to objectivity and

balance in all programs or series of programs of a

controversial nature;

(B) assist in the establishment and development of

one or more systems of interconnection to be used

for the distribution of educational television or radio

programs so that all noncommercial educational tele-

vision or radio broadcast stations that wish to may

broadcast the programs at times chosen by the sia-

tions ;

52a

one or more systems of noncommercial educational

television or radio broadcast stations throughout the

United States;

(D) carry out its purposes and functions and engage

in its activities in ways that will most effectively as-

sure the maximum freedom of the noncommercial

educational television or radio broadcast systems and

local stations from interference with or control of

progiam content or other activities.

53a

about noncommercial educational television or radio

broadcasting by various means, including the publi-

cation of a journal;

(E) to arrange, by grant or contract with appro-

priate public or private agencies, organizations, or

institutions, for interconnection facilities sui for

distribution and transmission of educational televis-

ion or radio programs to noncommercial educational

broadcast stations;

(F) to hire or accept the voluntary services of con-

sultants, experts, advisory boards, and panels to aid

(2) Included in the activities of the Corporation au-

thorized for accomplishment of the purposes set forth in

subsection (a) of this section are, among others not spe-

cifically named— (G) to encourage the creation of new noncommer-

cial educational broadcast stations in order to enhance

ae service on a local, State, regional, and national

asis;

the Corporation in carrying out the purposes of this

section ;

(A) to obtain grants from and to make contracts

with individuals and with private, State and Federal

agencies, organizations, and institutions;

(H) conduct (directly or through grants or con-

tracts) research, demonstrations, or training in mat-

ters related to noncommercial educational television

or radio broadcasting and the use of nonbroadcast

communications technologies for the dissemination of

educational television or radio programs.

(B) to contract with or make grants to program

production entities, individuals, and selected noncom-

mercial educational broadcast stations for the pro-

duction of, and otherwise to procure, educational

television or radio programs for national or regional

distribution to noncommercial educational broadcast

stations ; _ (3) To carry out the foregoing purposes and engage in

mercial educational broadcast stations to aid in finane- usual powers conferred upon a non-profit corporation by

ing local educational television or radio programing the District of Columbia Non-profit Corporation Act, ex-

costs of such stations, particularly innovative ap- cept that the Corporation may not own or operate any tele-

proaches thereto, and other costs of operation of such vision, or radio broadcast station, system, or network, com-

stations: munity antenna television system, or interconnection or

(D) to establish and maintain a library and ar- —— amen facility.

chives of noncommercial educational television or (h) Authorization for free or reduced rate interconnec-

radio programs and related materials and develop tion service.

public awareness of and disseminate information

54a

Nothing in the Communications Act of 1934, as amended,

or in any other provision of law shall be construed to pre-

vent United States communications common carriers from

rendering free or reduced rate communications intercon-

nection services for noncommercial educational television

or radio services, subject to such rules and regulations as

the Federal Communications Commission may prescribe.

(i) Report to Congress.

The Corporation shall submit an annual report for the

preceding fiscal year ending June 30 to the President for

transmittal to the Congress on or before the 31st day of

December of each year. The report shall include a com-

prehensive and detailed report of the Corporation’s opera-

tions, activities, financial condition, and accomplishments

under this section and may include such recommendations

as the Corporation deems appropriate. The officers and

directors of the Corporation shall be available to testify

before appropriate committees of the Congress with re-

spect to such report, the report of any audit made by the

Comptroller General pursuant to subsection (/) of this

section, or any other matter which any such committee may

determine.

(j) Repeal, alteration, or amendment.

The right to repeal, alter, or amend this section at any

time is expressly reserved.

(k) Financing.

(1) There is authorized to be appropriated for expenses

of the Corporation $50,000,000 for the fiscal year ending

June 30, 1974, and $60,000,000 for the fiscal year ending

June 30, 1975.

(2) In addition to the sums authorized to be appropri-

ated by paragraph (1) of this subsection, there are author-

ized to be appropriated for payment to the Corporation for

each fiscal year during the period July 1, 1970, to June 30,

1975, amounts equal to the amount of total grants, dona-

50a

tions, bequests, or other contributions (including money

and the fair market value of any property) from non-Fed-

eral sources received by the Corporation under subsection

(g)(2)(A) of this section during such fiscal year; except

that the amount appropriated pursuant to this paragraph

for any fiscal year may not exceed $5,000,000.

(3) There is hereby established in the Treasury a fund

which shall be known as the ‘‘Public Broadcasting Fund”’

administered by the Secretary of the Treasury. There are

authorized to be appropriated to such fund for each of the

fiscal years during the period beginning July 1, 1975, and

ending September 30, 1980, an amount equal to 40 per

centum of the total amount of non-Federal financial sup-

port received by public broadcasting entities during the

fiscal year second preceding each such fiscal year, and for

the period July 1, 1976, through September 30, 1976, an

amount equal to 10 per centum of the total amount of non-

Federal financial support received by public broadcasting

entities during the fiscal year ending June 30, 1975; except

that the amount so appropriated shall not exceed

$88,000,00 for the fiscal year ending June 30, 1976; $22,000,

000 for the period July 1, 1976, through September 30,

1976 ; $103,000,000 for the fiscal year ending September 30,

1977 ; $121,000,000 for the fiscal year ending September 30,

1978 ; $140,000,000 for the fiscal year ending September 30,

1979; and $160,000,000 for the fiscal year ending Septem-

ber 30, 1980.

(4) The funds authorized by this subsection shall be

used solely for the expenses of the Corporation. The Cor-

poration shall determine the amount of non-Federal finan-

cial support received by public broadcasting entities dur-

ing each of the fiscal years indicated in paragraph (3) of

this subsection for the purpose of determining the amount

of each authorization, and shall certify sach amount to the

Secretary of the Treasury. Upon receipt of such certifica-

tion, the Secretary of the Treasury shall disburse to the

56a

Corporation, from such funds as may be appropriated to

the Public Broadcasting Fund, the amount authorized for

each of the fiscal years and for the period July 1, 1976,

through September 30, 1976, pursuant to the provisions of

this subsection.

(5) The Corporation shall reserve for distribution

among the licensees and permittees of noncommercial edu-

cational broadcast stations that are on-the-air an amount

equal to not less than 40 per centum of the funds disbursed

to the Corporation from the Public Broadcasting Fund

during the period July 1, 1975, through September 30, 1976,

and in each fiscal year in which the amount disbursed is

$88,000,000 or more, but less than $121,000,000; not less

than 45 per centum in each fiscal year in which the amount

disbursed is $121,000,000 or more, but less than $160,000,-

000; and not less than 50 per centum in each fiscal year in

which the amount disbursed is $160,000,000.

(6) The Corporation shall, after consultation with ii-

censees and permittees of noncommercial educational

broadcast stations that are on-the-air, establish, and re-

view annually, criteria and conditions regarding the dis-

tribution of funds reserved pursuant to paragraph (5) of

this subsection, as set forth below:

(A) The total amount of funds shall be divided into

two portions, one to be distributed among radio sta-

tions, and one to be distributed among television sta-

tions. The Corporation shall make a basic grant from

the portion reserved for television stations to each

licensee and permittee of a noncommercial educational

television station that is on-the-air. The balance of

the portion reserved for telvision stations and the

total portion reserved for radio stations shal] be dis-

tributed to licensees and permittees of such stations in

accordance with eligibility criteria that promote the

public interest in noncommercial educational broad-

casting, and on the basis of a formula designed to—

57a

(i) provide for the financial need and require-

ments of stations in relation to the communities

and audiences such stations undertake to serve;

(ii) maintain existing, and stimulate new,

sources of non-Federal financial support for sta-

tions by providing incentives for increases in such

support; and

(iii) assure that each eligible licensee and per-

mittee of a noncommercial educational radio sta-

tion receives a basic grant.

(B) No distribution of funds pursuant to this sub-

section shall exceed, in any fiscal year, one-half of a

licensee’s or permittee’s total non-Federal financial

support during the fiscal year second preceding the

fiscal year in which such distribution is made.

(7) Funds distributed pursuant to this subsection may

be used at the discretion of stations for purposes related

to the provision of educational television and radio pro-

graming, including but not limited to the following: pro-

ducing, acquiring, broadcasting, or otherwise disseminat-

ing educational television or radio programs; procuring

national or regional program distribution services that

make educational television or radio programs available

for broadcast or other dissemination at times chosen by

stations; acquiring, replacing, and maintaining facilities,

and real property used with facilities, for the production,

broadcast, or other dissemination of educational television

and radio programs; developing and using nonbroadcast

communications technologies for educational television or

radio programing purposes.

(1) Records and audit of the Corporation and the recipi-

ents of assistance.

(1)(A) The accounts of the Corporation shall be audited

annually in accordance with generally accepted auditing

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standards by independent certified public accountants or

independent licensed public accountants certified or li-

censed by a regulatory authority of a State or other politi-

cal subdivision of the United States. The audits shall be

conducted at the place or places where the accounts of the

Corporation are normally kept. All books, accounts, finan-

cial records, reports, files, and all other papers things, or

property belonging to or in use by the Corporation and

necessary to facilitate the audits shall be made available

to the person or persons conducting the audits; and full

facilities for verifying transactions with the balances or

securities held by depositories, fiscal agents and custodians

shall be afforded to such person or persons.

(B) The report of each such independent audit shall be

included in the annual report required by subsection (i) of

this section. The audit report shall set forth the scope of

the audit and include such statements as are necessary to

present fairly the Corporation’s assets and liabilities, sur-

plus or deficit, with an analysis of the changes therein

during the year, supplemented in reasonable detail by a

statement of the Corporation’s income and expenses dur-

ing the year, and a statement of the sources and applica-

tion of funds, together with the independent auditor’s

opinion of those statements.

(2)(A) The financial transactions of the Corporation

for any fiscal year during which Federal funds are avail-

able to finance any portion of its operations may be audited

by the General Accounting Ojfice in accordance with the

principles and procedures applicable to commercial corpo-

rate transactions and under such rules and regulations as

may be prescribed by the Comptroller General of the

United States. Ary such audit shall be conducted at the

place or places where accounts of the Corporation are nor-

mally kept. The representative of the General Accounting

Office sholl have aecess to all books, accounts, records, re-

ports, files, and all other papers, things, or property be-

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longing to or in use by the Corporation pertaining to its

financial transactions and necessary to facilitate the audit,

.md they shall be afforded full facilities for verifying

transactions with the balances or securities held by deposi-

tories, fiscal agents, and custodians. All such books, ac-

counts, records, reports, files, papers and property of the

corporation shall remain in possession and custody of the

Corporation.

(B) A report of each such audit shall be made by the

Comptroller General to the Congress. The report to the

Congress shall contain such comments and information as

the Comptroller General may deem necessary to inform

Congress of the financia) operations and condition of the

Corporation, together with such recommendations with

respect thereto as he may deem advisable. The report shall

also show specifically any program, expenditure, or other

financial transaction or undertaking observed in the course

of the audit, which, in the opinion of the Comptroller Gen-

eral, has been carried on or made without authority of law.

A copy of each report shall be furnished to the President,

to the Secretary, and to the Corporation at the time sub-

mitted to the Congress.

(3)(A) Each recipient of assistance by grant or con-

tract, other than a fixed price contract awarded pursuant

to competitive bidding procedures, under this section shall

keep such records as may be reasonably necessary to fully

disclose the amount and the disposition by such recipient

of the proceeds of such assistance, the total cost of the

project or undertaking in connnection with such assistance

is given or used, and the amount and nature of that portion

of the cost of the project or undertaking supplied by other

sources, and such other records as will facilitate an effec-

tive audit.

(B) The Corporation or any of its duly authorized rep-

resentatives, shall uave access for the purpose of audit

and examination to any books, documents, papers, and rec-

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ords of the recipient that are pertinent to assistance re-

ceived under this section. The Comptroller General of the

United States or any of his duly authorized representatives

shall also have access thereto for such purpose during any

fiscal year for which Federal funds are available to the

Corporation.

§ 397. Definitions.

For the purposes of sections 390 to 399 of this titlhe—

(1) The term ‘‘State’’ includes the District of Columbia,

the Commonwealth of Puerto Rico, the Virgin Islands,

Guam, American Samoa, and the Trust Territory of the

Pacific Islands.

(2) The term ‘‘construction’’, as applied to educational

television broadcasting facilities, or educational radio

broadcasting facilities means the acquisition and installa-

tion of transmission apparatus (including towers, micro-

wave equipment, boosters, translators, repeaters, mobile

equipment, and video-recording equipment) necessary for

television broadcasting or radio broadcasting, as the case

may be, including apparatus which may incidentally be

used for transmitting closed circuit television programs,

but does not include the construction or repair of struc-

tures to house such apparatus. In the case of apparatus

the acquisition and installation of which is so included,

such term also includes planning therefor.

(3) The term ‘Secretary’? means the Secretary of

Health, Education, and Welfare.

(4) The terms ‘‘State educational television agency”’

and ‘‘State educational radio agency’’ mean, with respect

to television broadcasting and radio broadcasting, respec-

tively, (A) a board or commission established by State

law for the purpose of promoting such broadcasting within

a State, (B) a board or commission appointed by the Gov-

ernor of a State for such purpose if such appointment is

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not inconsistent with State law, or (C) a State officer or

agency responsible for the supervision of public elemen-

tary or secondary education or public higher education

within the State which has been designated by the Gover-

nor to assume responsibility for the promotion of such

broadcasting; and, in the case of the District of Columbia,

the term ‘‘Governor’’ means the Commissioner of the Dis-

trict of Columbia and, in the case of the Trust Territory

of the Pacific Islands, means the High Commissioner

thereof.

(5) The term ‘‘nonprofit’’ as applied to any foundation,

corporation, or association, means a foundation, corpora-

tion, or association, no part of the net earnings of which

inures, or may lawfully inure, to the benefit of any private

shareholder or individual.

(6) The term ‘‘Corporation’’ means the Corporation

authorized to be established by subpart B of this part.

(7) The term ‘‘noncommercial educational broadcast

station’’ means a television or radio broadcast station,

which (A) under the rules and regulations of the Federal

Communications Commission in effect on November 7,

1967, is eligiile to be licensed or is licensed by the Comis-

sion as a noncommercial educational radio or television

broadcast station and which is owned and operated by a

public agency or nonprofit private foundation, corporation,

or association or (B) is owned and operated by a munici-

pality and which transmits only noncommercial programs

for educational purposes.

(8) The term ‘‘interconnection’’ means the use of micro-

wave equipment, boosters, translators, repeaters, commu-

nication space satellites, or other apparatus or equipment

for the transmission and distribution of television or radio

programs to non-commercial educational television or radio

broadcast stations.

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(9) The term ‘‘educational television or radio pro-

grams’’ means programs which are primarily designed for

educational or cultural purposes.

(10) The term ‘‘non-Federal financial support’’ means

the total value of cash and the fair market value of prop-

erty and services (except for personal services of volun-

teers) received—

(A) as gifts, grants, bequests, donations, or other

contributions for the construction or operation of non-

commercial educational broadcast stations, or for the

production, acquisition, distribution, or dissemination

of educational television or radio programs, and re-

lated activities, from any source other than (i) the

United States or any agency or establishment thereof,

or (ii) any public broadcasting entity; or

(B) as gifts, grants, donations, contributions, or

payments from any State, any agency or political sub-

division of a State, or any educational institution, for

the construction or operation of non-commercial edu-

cational broadcast stations or for the production, ac-

quisition, distribution, or dissemination of educational

television or radio programs, or payments in exchange

for services or materials respecting the provision of

educational or instructional television or radio pro-

grams.

(11) The term ‘‘public broadcasting entity’? means the

Corporation, any licensee or permittee of a non-commercial

educational broadcast station, or any nonprofit institution

engaged primarily in the production, acquisition, distribu-

tion, or dissemination of educational television or radio

programs.

§ 398. Federal interference or control prohibited.

Nothing contained in sections 390 to 399 of this title shall

be deemed (1) to amend any other provision of, or require-

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ment under this chapter; or (2) to authorize any depart-

ment, agency, officer, or employee of the United States to

exercise any direction, suprevision, or control over educa-

tional television or radio broadcasting, or over the Corpora-

tion or any of its grantees or contractors, or over the

charter or bylaws of the Corporation, or over the curricu-

lum, program of instruction, or personnel of any educa-

tional institution, school system, or educational broadcast-

ing station or system.

§ 399. Editorializing and support of political candidates

prohibited ; recording of certain programs.

(a) No noncommercial educational broadcasting station

may engage in editorializing or may support or oppose any

candidate for political office.

(b)(1) Except as provided in paragraph (2), each li-

censee which receives assistance under sections 390 to 399

of this title after August 6, 1973, shall retain an audio

recording of each of its broadcasts of any program in

which any issue of public importance is discussed. Each

such recording shall be retained for the sixty-day period

beginning on the date on which the licensee broadcasts such

program.

(2) The requirements of paragraph (1) shall not apply

with respect to a licensee’s broadcast of a program if an

entity designated by the licensee retains an audio record-

ing of each of the licensee’s broadcasts of such a program

for the period prescribed by paragraph (1).

(3) Each licensee and entity designated by a licensee

under paragraph (2) which retains a recording under

paragraph (1) or (2) shall, in the period during which such

recording is required under such paragraph to be retained,

make a copy of such recording available—

(A) to the Commission upon its request, and

(B) to any other person upon payment to the licen-

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see or designated entity (as the case may be) of its

reasonable cost of making such copy.

(4) The Commission shall by rule prescribe—

(A) the manner in which recordings required by

this subsection shall be kept, and

(B) the conditions under which they shall be avail-

able to persons other than the Commission, giving due

regard to the goals of eliminating unnecessary expense

and effort and minimizing administrative burdens.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.