# Petition — Public Broadcasting Service v. Network Project > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0207%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1068 ## Text M ——— 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 v. 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 Be UTS. OBOE ncn cicccncacdecucseussneee 18 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 ee eT 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 2 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 3 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 4 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 5 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 6 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. < As ein ccd REAR wie ie tlhe ‘ew eee (a. Oe Mee he ALLA LL, CNN Al Ra: Ae Lentini den BON AE! MR Os a s. MIN nee a 7 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- 8 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). 9 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). 10 332, 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 ll 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” 4 12 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). 13 [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 14 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). 15 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- 16 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. 17 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. 18 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. 19 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). 20 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. 21 $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 la APPENDIX A UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT No. 75-1963 The Network Prosect et al., Appellants, v. 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 2a 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. 3a 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. I 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.’’ ta 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 5a 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 © Td. at 521-522, 94 S.Ct. at 689, 38 L.Ed.2d at 699-700. ** 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. 6a 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. Il 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 7a 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 = 8a 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. 9a 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. en 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, v. 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. I 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. IT 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.’ IV 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 V 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). i : 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. ‘© Although plaintiffs do not seek to maintain a class action, it is 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). VI 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 i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0207%3A1. Public record. Not legal advice.