Appendix — CORPORATION FOR PUBLIC BROADCASTING v. NETWORK (Nos. 77-864, 77-858)

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APPENDIX A

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT.

The Network Prosect et au., Appellants,

CorPoRATION FOR PusBLIc BROADCASTING,

a corporation, et al.

No. 75-1963.

Argued June 8, 1976.

Decided July 22, 1977.

Before Rosinson and Wiikey, Circuit Judges, and

Wittum J. Jameson,* United States Senior Diatrict

Judge for the District of Montana.

Opinion for the Court filed by Sporrswoop W. Rosrn-

son, III, Circuit Judge.

Spotrswoop W. Rosinson, III, Circuit Judge:

Appellants are numerous viewers of public television

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

ten, directed and produced public television programs

(producer-appellants).? Appellees are the Corporation for

Public Broadeasting (CPB), established pursuant to con-

* 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.

Wo 2a

gressional authorization as a conduit of federal funds for

public television, and the Public Broadcasting Service

(PBS), created by CPB to distribute public television

programs to local stations, together with Clay T. White-

head, who as a former presidential aide, was Director of

the Office of Telecommunications Policy. The appeal ema-

nates from a judgment of the District Court dismissing an

action precipitated 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 tele-

vision in contravention of the First Amendment‘ and

legislation known as the Public Broadcasting Act.’ Speci-

fically, the complaint avers that CPB and PBS have

eliminated funding 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 pro-

grams, have required program changes prior to distribu-

tion, and have issued warnings to local stations about pro-

grams considered by them to be controversial. Whitehead

and Patrick J. Buchanan, another former presidential

aide once a party,® are accused of attempts to cause CPB

and PBS to remove all controversial programs from the

air.

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

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

*U.S.Const. amend. I.

* Aet of Nov. 7, 1967, Pub.L.No.90-129, tit. II, § 201, 81 Stat. 368,

as amended, 47 U.S.C. §§ 396 et seq. (Supp. V 1975), hereinafter

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.

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

professional reputations and their ability to market their

work products allegedly resulting from censorship of pro-

grams written, directed or produced by them. The Dis-

trict 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 dis-

missed the First Amendment contentions of viewer-appel-

lants 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-appellants. In all other respects, we

affirm.

The District Court held that insofar as the action

sought declaratory and injunctive relief from Whitehead

and Buchanan, the presidential aides, it had become moot

because of their resignations from office after commence-

ment of suit." Appellants pursue this appeal only against

Whitehead, formerly the Director of the Office of Tele-

communications Policy.** They argue that they should

now be allowed to proceed agains+ Whitehead’s successor.

_—_——_— - =

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

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

* Jd. at 1337-1339.

* Id. at 1339-1342.

™ Td. at 1335.

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

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

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

quirement that the plaintiff demonstrate need for contin-

uing the action upon substitution,” it will not keep alive

an otherwise moot controversy. This principle was firmly

established by the Supreme Court’s decision in Spomer v.

Littleton.” There, residents of Cairo, Illinois, filed suit

against Peyton Berbling, State’s Attorney for Alexander

County, charging him with a variety of racia)'y discrimi-

natory law enforcement practices. After the Seventh Cir-

cuit announced its decision on appeal, Spomer was elected

to sueceed Berbling. Relying on Supreme Court Rule

48(3),"* Spomer than petitioned for certiorari to challenge

the Court of Appeal’s approval of the possibility of in-

junctive relief against the State’s Attorney. The plain-

tiffs did not oppose this substitution, and the Supreme

Court granted the writ.

After plenary review, however, the Court found nothing

in the record upon whic! to base a conclusion that a con-

crete controversy between the residents of Cairo and the

State’s Attorney still existed." Of primary importance

Fed. R.Civ.P. 25() (1) provides in relevant part that [w)hen

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

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

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

tuted as a party.”’

“3B J. Moore, Federal Practice €25,09[3] at 25-401 (2d ed.

1974),

"414 US. 514, 948.0. 685, 38 1. Phd. 24 694 (1974).

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

(1), provides that ‘'[w]hen a publie 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 suecessor 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,

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 complaint that the policy of the office of State’s At-

torngy is to follow the intentional practices alleged... .’’”

The/Court further noted that the plaintiffs made no alle-

gatjon that Spomer intended to continue the practices of

whjch they complained.”

t oral argument, counsel for the State’s Attorney had

ivdicated that Spomer did not intend to deviate from the

ractices of his predecessor." The Court, however, held

hat ‘‘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 de-

sired, 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

'* Jd. at 921, 94.S.Ct, at 689, 38 L.Ed.2d at 700.

Td,

* Td. at 621-522, 94.8.Ct. at 689, 38 L.Ed.2d at 699-700,

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

** Id. (emphasis in original).

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

mand, the plaintiffs informed the Court of Appeals that they did

not intend to name Spomer as an additional defendant because they

were unable to allege that he was continuing the discriminatory

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).

EE =

a eo

one ae 6 ee ee

the named defendant, despite his having been sued in his

official capacity.” Like the plaintiffs in Spomer, appellants

here have not averred that it is departmental policy to

follow the practices charged. Moreover, appellants have

rejected an opportunity to amend their complaint to add

allegations 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 Telecommunica-

tions. Accordingly, we affirm the District Court’s dismis-

sal of the suit in that regard.

Next to be considered is whether the District Court pos-

sessed jurisdiction of appellants’ statutory and constitu-

* 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, Appellants’

argument that they did not explicitly characterize the conduct of

which they complain as personal to Whitehead is beside the point.

They did assert that Whitehead committeed certain discrete illegal

acts, and in the absence of any allegation that the acts were other

than individual—i. e., departmental © arn complaint can be

construed only as charging personal mi8conduet.

* Appellants suggest that an affidavit which Whitehead submit-

ted to the Distriet Court, J.App. 37-41, shows that the acts com-

plained of represented departmental policy, and thus that a live

controversy persists in the absence of a disclaimer by Whitehead's

successor, This argument is misconceived. The affidavit does not

concede that it was departmental policy to interfere with CPB pro-

gramming decisions ; it simply asserts that the Director of the Office

of Telecommunications has statutory responsibilities in matters con-

cerning public broadcasting. In any event, Whitehead 's representa-

tions are irrelevant since mootness must be determined solely by

reference to the allegations of the complaining party. Spomer v.

lAttleton, supra note 15, 414 U.S, at 522, n. 10, 94 S.Ct. at 689

n. 10, 38 L.Ed.2d at 700 n, 10, quoted in text supra at note 23.

tional claims. Jurisdiction was invoked on three separate

grounds, all of which were deemed unacceptable. The

court declined to exercise federal-question jurisdiction un-

der 28 U.S.C. § 1331, holding that appellants had failed

to establish that the requisite $10,000 was in controversy.”

The court also held that jurisdiction could not be predi-

cated upon 28 U.S.C. § 1361. That provision, which im-

parts jurisdiction over suits ‘‘to compel... any agency

... to perform a duty owed to the plaintiff,’ was held

inapplicable on the ground that CPB is not an agency,

and CPB’s directors are not officers, within its contem-

plation.” Finally, without deciding whether it had juris-

diction under 28 U.S.C. § 1337," the court held that no

right of action could be implied from the Public Broad-

casting Act of 1967 and dismissed appellants’ statutory

***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 required in any such action brought

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

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

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

90 Stat, 2721.

: ™ Network Project v. Corporation for Pub. Broadcasting, supra

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

* Ji. at 1339.

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

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

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

to the plaintiff.’’ 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 regu-

lating commerce or protecting trade and commerce against re-

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

-_--_—

claims accordingly.” In a brief footnote, the court added

that ‘‘{iJn that instance there is no pendent jurisdiction

under § 1337,’’™ and thereby nipped in the bud appellants’

undertaking to demonstrate a constitutional basis for

relief.

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 prin-

ciples required that it also hear appellants’ constitutional

claims as an exercise of pendent jurisdiction.” We con-

clude 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

commerce ....’’’ This grant has been broadly interpreted

to reach any federal statute for which the Commerce

Clause ™ furnishes a predicate.” In National Broadcast-

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

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

"Jd. at 1340 n, 9.

** We discuss this infra text at notes 37-49,

We dise iss 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); 7mm 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 Agricul-

ture, 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).

ing Co. v. United States,” the Supreme Court upheld the

licensing system established by Congress in the Com-

munications Act of 1934" as a proper exertion of its

power over interstate commerce.“* The Communications

Act is now fully recognized as an ‘‘[a]et of Congress

regulating commerce’’ within the meaning of Section

1337."

The Public Broadcasting Act originated in the Inter-

state Commerce Committees of both Houses of Congress,

and came into being as an amendment to the Communica-

tions Act of 1934. It expressly promotes the establish-

ment and development of noncommercial educational ra-

dio and television broadcasting throughout the Nation.“

These factors alone bring appellants’ statutory claims

well within the ambit of Section 1337. Indeed, there is

nothing on the face of the statute or discernible in its

history to suggest that Congress did not continue reliance

upon its commerce power—an obvious facet of legislative

authority—in passing the Public Broadcasting Act. Nor

ean there be the slightest doubt that the commerce power

*° 319 U.S, 190, °3 S.Ct. 997, 87 L. Fd. 1344 (1934),

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

U.S.C, §§ 151 et seg. (1970).

** National Broadcasting Co. v. United States, supra note 40, 319

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

** 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,

0th Cong., Ist Sess. 1 (1967), U.S.Code Cong. & Admin. News 1967,

p. 1772,

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

Re 8 ee a ee. el oe

10a

provides Congress with ample authority to foster the de-

velopment of noncommercial television.“

For purposes of Section 1337, it is irrelevant that the

Public Broadcasting Act might also be upheld as a valid

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 ean 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 jurisdic-

tion 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

“That the Commerce Clause sustains federal legislation promot-

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

kK. q., Second Employer's Liability Cases (Mondou v. New York,

N. HW. & WR.R.), 223 US. 1, 47, 32 8.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 1. 2d, 999, 1001 (1871).

"The Congress shall have Power To lay and collect Taxes,

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

common Defence and general Welfare of the United States... .”’

U.S.Const, art. 1, § 8, el. 1.

' Murphy v. Colonial Fed. Save. & Loan Ass'n, supra note 39,

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

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

‘al, 1973),

"In Part III infra.

“UMW v. Gibbs, 383 U.S, 715, 725, 86 S.Ct. 1130, 1138, 16

L,. Ed.2d 218, 228 (1966).

lla

be expected to try them [both] in one judicial proceed-

ing,’’* the District Court clearly had power to hear the

constitutional aspects of their lawsuit as a matter of

pendent jurisdiction. While ‘‘pendent jurisdiction is a

doctrine of discretion, not of plaintiff’s right,’’* discre-

tion is not left to the court’s ‘‘inclination, but to its judg-

ment; and its judgment is to be guided by sound legal

principles.’’** In particular, the exercise of discretion

must be responsive to the considerations of judicial econ-

omy, convenience and fairness to litigants which underlie

and justify the phenomena of pendent jurisdiction.”

The District Court appears to have rested its refusal

to assume pendent jurisdiction on the misconception that

Td.

*? 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, 426-427 (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 Cir. 1974),

cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975);

Vanderboom v. Serton, 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 he implied—is not wh ’'!y without merit, even though it does

not prevail. See Part ITI infra.

°° 1'MW 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.€t. at 1139,

16 L.Ed.2d at 228.

12a

pretrial dismissal of the statutory claims necessitated dis-

missal of the pendent claims as well.” It is true that when

state and federal claims are dismissed ‘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 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 determi-

nation of the state claim by state courts having more

familiarity with the controlling principles and the

authority to render a final judgment. These considera-

tions favoring state adjucation are wholly irrelevant

when the pendent claim is federal but is itself beyond

the jurisdiction of the District Court... .’’™

Moreover, there is particularly good reagon for retain-

ing 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 adjudicate claims implicating federal policy as a strong

basis for exercising pendent jurisdiction. There the doc-

5* 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.

** 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 ).

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

at 454 (1975).

* Supra note 50.

13a

trine 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 principles.’’ *

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

claim not otherwise within the court’s jurisdiction was

joined with a constitutional claim independently cog-

nizable. In upholding a district court’s exertion of pend-

ent jurisdiction, even after the constitutional claim had

been dismissed as moot, the Court observed that the statu-

tory question was one of federal policy and the argument

for the exercise of pendent jurisdiction was therefore par-

ticularly strong.®

* I/MW v. Gibbs, supra note 50, 383 U.S. at 729, 86 S.Ct. at 1140,

16 L.Ed.2d at 230.

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

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

* 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 consideration

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-econferring claim is dismissed on grounds of moot-

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

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

12(b)(6) might not oceur ‘‘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.

l4a

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 adjudicate federal claims.”

Our review of applicable Supreme Court precedents

thus reveals that the District Court’s decision was unre-

sponsive to the considerations that govern the exercise of

pendent jurisdiction when the pendent claim invokes fed-

eral law. In particular, the District Court should have de-

termined whether, with the statutory claim no longer in

the case, considerations 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 as-

sume jurisdiction of every pendent federal claim. On the

contrary, pendent jurisdiction remains ‘‘a doctrine of dis-

cretion, not of plaintiffs’ right.’’* We do say, however,

that involvement of federal law in a pendent claim is a

factor signifieantly affecting the proper exercise of that

discretion. As Mr. Justice Douglas noted in Rosado v.

Wyman, ‘‘{when] the claim involved . . . is one of federal

law, the reasons for the exercise of pendent jurisdiction

are especially weighty, and exceptional circumstances

[are] required to prevent the exercise.’’* Since we per-

ceive nothing out of the ordinary that would justify a re-

“ Supra note 58.

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

S.Ct. at 1385 & n. 14, 39 L.Ed.2d at 594-595 & n. 14.

“UMW wv. 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 (concurring

opinion).

l5a

fusal of pendent jurisdiction here, we hold that the Dis-

trict Court erred in dismissing appellants’ constitutional

claims.”” Our judgment accordingly will provide for a re-

mand of those claims for disposition on the merits.”

' 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 revision applies to

this ease, we think it clearly reflects a congressional view that fed-

eral claimants suing federal defendants should have access to fed-

eral courts regardless of the monetary value of their claims. Thus,

any colorable basis for leaving the instant constitutional 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 question,

pendent jurisdiction should be refused. Brief for Appellee PBS at

29 n. 20. While the policy of avoiding difficult constitutional ques-

tions 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..%d.2d at 593-594 & n. 12, declining jurisdiction here will not

climinate the necessity of a constitutional decision, but will simply

leave its disposition to state courts. As we have shown, there is no

poliey favoring state court adjudication of federal claims.

"' Whether a right of action is to be in‘erred from the Constitu-

tion is normally a question on the merits rather than one of juris-

diction. Rell 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 vet

addressed appellants’ constitutional claim on that basis, see Net-

work Project v. Corporation for Pub. Broadcasting, supra note 3,

i ee

l6a

Ill

Viewer appellants maintain that they are entitled to

injunctive 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

undoubtedly was intended to benefit viewers of public tele-

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

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

conclude that a right of action should not be inferred, but

for reasons different from those articulated by the Dis-

trict Court.

To begin with, ‘‘the inference of ... 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.’’ * 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 skewed by the courts, albeit inadvertently.’’

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. Corporation for Pub. Broadcasting, supra

note 3, 398 F.Supp. at 1338.

*8 Id. 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).

*® [Tolloway v. Bristol Meyers Corp., 158 U.S. App.D.C. 207, 210,

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

17a

Thus, ‘‘{w]hen 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 these 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-

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-

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

7? See text infra at note 80.

8 See Sirth 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. ITI, 76 Stat. 65, as

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

after 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).

18a

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 of the appearance of

control over them.’’* And the corporation would not es-

cape the scrutiny that properly follows the appropriation

of federal money, but would be insulated from interfer-

ence with 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 Government,’’** as a funding mechanism for virtu-

ally all activities comprising noncommercial broadcasting.”

Consistently with the expectations of the Commission,

Congress conceived CPB as a vehicle for infusing federal

money into public broadcasting without the introduction

of government direction or control.”

In determining whether private : sort to the provisions

of the Act harmonizes with congressional intent, we do

not write on a clean slate. In Accuracy in Media, Inc. v.

** Jd. at 68-79.

Jd. at 36-42.

* Jd. at 37.

st 7d.

*° 47 U.S.C. § 396(b) (Supp. V 1975).

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

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

19a

FCC,” we considered the contention that FCC had author-

ity to enforce the Act’s call on CPB to facilitate program-

ming with ‘‘strict adherence to objectivity and balance

in all programs or series of programs of a controversial

nature.’’* After reviewing the structure of the public

broadcasting system, we were of the view that Seetion 398

of the Public Broadcasting Act expressly barred FCC

jurisdiction over CPB.” That section specifies that noth-

ing in the Educational Television Facilities Act ™ or the

Public Broadcasting 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 television or radio broadcasting, or over

the Corporation [for Public Broadcasting] or any of its

grantees or contractors .. .’’* Since any enforcement of

the statutory requirement would necessarily entail ‘‘super-

vision’’ of CPB, we held that the plain words of Section

398 precluded FCC from acting.”

PBS suggests that Section 398 also forecloses implication

of a private right of action since entertainment of private

suits would necessarily involve the courts in ‘‘supervi-

sion,’’ and courts, no less than administrative bodies, are

governmental ‘‘agencies.’’*’ We reject this sweeping inter-

pretation of the statutory prohibition. The plain purpose

of Section 398 is to prevent any governmental body from

* 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.

** 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.

20a

influencing CPB in a manner calculated to turn it into a

governmental spokesman.” While Congress manifestly be-

lieved that FCC involvement in enforcing the Act’s direc-

tives would create the very dangers that Section 398 sought

to prevent,” it is unlikely that it made the same judgment

with respect to courts occasionally summoned to resolve

specific controversies arising under the Act. We would need

more than PBS offers to persuade us that judicial enforce-

ment of the Act’s mandates would constitute ‘‘supervi-

sion’? by a governmental ‘‘agency’’ within the meaning

of Section 398. This is not to say that the section author-

izes judicial action by negative implication, but only that

it is neutral with respect to the question.

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

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

* 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 under-

standing of § 398 as follows:

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

include the Corporation and its activities. The original section

was enacted as a provision of the Educational Television Facili-

ties 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 program’’.

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

& Admin. News 1962, pp. 1614, 1620. The expansion 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 Publie Broadeasting Act leaves intact FCC regulatory

authority over individual non-commercial licensees. Accuracy m

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 controi over program content and thereby upset

the balanee 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 journa-

lists 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.

2la

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 partisan

abuses. For one conspicuous example, board membership

is limited to no more than eight out of the authorized

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

requirements 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

statutory requirements and control over the ‘ pursestrings,’

Congress reserved for itself the oversight responsibility for

the Corporation.’’** By that statement we clearly implied

that the statutory mandates are to be enforced exclusively

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

vocally, we viewed the provision advanced as the source

—_—-——

1° Td. at 194, 521 F.2d at 294.

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

1? 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).

Ss 47 U.S.C. § 396(i) (Supp. V 1975).

°° 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 omit-

ted).

22a

of a private right of action ‘‘as a guide to Congressional

oversight policy and as a set of goals to which the Direc-

tors of CPB should aspire,’’*” and ‘‘not [as] a substantive

standard, legally enforcible by agency or courts.’’*”

Appellants attempt to minimize the import of Accuracy

in Media by branding its discussion of congressional over-

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 liti-

gation to insure CPB compliance with the statutory provi-

sions 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 po-

litical 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 con-

notes merely that Congress anticipated that citizen partici-

pation through the political process would assist Congress

7 Td. at 197, 521 F.2d at 297.

— id.

Brief for Appellants at 38.

9 Td. at 28.

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

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

23a

in its ove.sight function. Even if the statement is deemed

ambiguous, appellants’ interpretation cannot withstand

diametrically opposed expressions in the legislative his-

tory. 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 it that the

local educational broadcasting stations conduct their

operations without Corporation interference or con-

trol.”

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 some-

thing about it. First, we can make very uncomfortable,

and give a very unhappy experience to, the directors

of the corporation. Second, we can shut down some of

their activities in the Appropriations Committee and

in the appropriating process of Congress .... The Cor-

poration 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:

[The 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.

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

phasis supplied).

8113 Cong. Rec. 13003 (1967).

24a

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

intervention to exact due regard for the Act.”

We hold that private rights of action are not part of the

machinery devised by Congress for contro] of CPB’s ac-

tivities. We accordingly affirm the District Court’s rejec-

tion 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.

'* Hearings on S. 1160 Before the Subcomm. on Communications

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

(emphasis supplied ).

"® Text supra at notes 100-1¢ 0.

“© Text supra at notes 50-71.

25a

APPENDIX B

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA

Network Prosect et al., Plaintiffs,

CorporaTIoN FoR Pusiic Broapcastine et al., Defendants.

Civ. A. No. 1059-73.

July 23, 1975

Memorandum and Order

Corcoran, 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 mvot; that the plaintiffs have no

implied private right of action under the Public Broadcast-

ing Act of 1967; and that the complaint is otherwise juris-

dictionally defective.

Tue Parties

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

porated membership organization whose membership al-

legedly includes viewers of noncommercial educational

television; (2) the American Civil Liberties Union

(ACLU), many of whose members are alleged to be reg-

ular viewers of noncommercial educational television; (3)

11 individuals who claim to be viewers of noncommercial

educational television; and (4) three individuals, viz., Paul

Jacobs, Saul Landau and John Kuney, who claim to have

26a

written, produced or directed programs for noncommercial

educational 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, ineorporated under the

laws of the District of Columbia and established pursuant

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

velopment of educational broadcasting, to assist in the

development of systems of interconnection for the distri-

bution of educational television and radio programs and

to engage in those activities in ways that will most effec-

tively assure the maximum freedom of noncommercial edu-

cational systems and stations from interference. 47 U.S.C.

§ 396(g) (1) (A)-(D).

PBS is a nonprofit membership corporation organized

under the laws of the District of Columbia. Its member-

ship consists of the licensees of noncommercial educational

television stations. The purpose of PBS, according to its

Articles of Incorporation, is to arrange for and provide

interconnection facilities for the distribution of noncom-

mercial broadcast programs and to generally assist and

support noncommercial broadcasting pursuant to the Public

Broadcasting Act.’ The Act provides that CPB will facili-

tate the establishment of one or more interconnection sys-

tems; it does not however provide specifically for PBS’s

existence.

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

' Appendix B, Appendices to Memorandum of Points and Author-

ities in Support of the Public Broadcasting Service’s Motion to

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

27a

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) inter alia, to serve

as the President’s principal adviser on telecommunications,

assure effective communication of the views of the Execv-

tive Branch on telecommunications policy to Congress and

to the Federal Communications Commission (FCC), and

to coordinate telecommunications activities of the Execu-

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

1970.

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

former Special Consultant to the President. He resigned

effective November 15, 1974, after the commencement of

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

public broadcasting as part of his duties as Special Con-

sultant.

PLEADINGS

The plaintiffs complain that the defendants have acted

in violation of the Public Broadeasting 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-

screen programs produced for noncommercial educational

television prior to distribution; issuing warnings to—

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

28a

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

violations of the Act by CPB in that CPB allegedly par-

ticipates illegally in programming and operation of a net-

work. Finally, they charge that the CPB Board of Direc-

tors is illegally constituted.

CPB and PBS and the federal defendants have each

moved to dismiss the action on various grounds. Consid-

eration of the various arguments of the defendants follow.

Ill

Moorness As To Tre Fepera, Derenpants

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 de-

termined 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. Rice,

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

Accord, People of State of California v. San Pablo € Tw

lane R. Co., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747 (1893) ;

State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10

(5th Cir. 1973).

29a

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 contro] over CPB or

its grantees.

The claims against these defendants in their individual

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 US.

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. DeFunis

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 action does not

abate and his successor is automatically substituted as

a party.

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

30a

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) (3d 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 appropriate 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 differ-

ent 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 specific 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.

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 substi-

tution under Rule 25(d)(1) would accordingly be appro-

priate.

3la

tlowever, 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 al-

lege 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 demon-

strate the need for continuing the action upon substitu-

tion; however, the complaint may be subject to challenge

for mootness by the successor. 3B J. Moore, Federal Prac-

tice J 25.09(3) ; Advisory Committee Notes of 1961 to Rule

25(d)(1), id. § 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 prose-

eutor and his staff had engaged in specific acts of racial

discrimination, sought declaratory and injunctive relief and

damages. The Court held that where the complained of il-

legal actions are personal, no allegations being made that

the actions reflect official administration policy, end 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

officials challenged tax collection policies of the Collector

of Internal Revenue which reflected interpretations of the

Internal Revenue Code. The Court held in Allen that the

allegations were sufficient to justify substitution and with-

stand challenge for mootness.

*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, 94S.Ct. 685.

32a

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.*

Impuication Or A Private Ricut Or Action Unpver THE

Pvsiic Broapcastinc Act or 1967

The plaintiffs allege that the actions of the defendants

violate §§ 396 and 398 of the Act and that they have a pri-

vate right of action to enforce those sections. Although un-

able to identify an express provision of such a right, plain-

tiffs 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 ac-

tion from a statute requires close examination of the stat-

ute and its legislative history—‘‘the inference of such a

private cause of action not otherwise authorized by the

° 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

statute must be consistent with the evident legislative in-

tent and, of course, with the effectuation of the purposes

intended to be served by the act.’’ National Railroad Pas-

senger Corp. v. National Association of Railroad Passen-

gers, 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 Pro-

tection 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 action because such action might disrupt the system

established 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. J. 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 § 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 effectu-

ate 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 indi-

eation that the Congress passed the Act to protect any

threatened rights.

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:

34a

(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 Fed-

eral Government to complement, assist, and support a

national policy that will most effectively make non-

commercial 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 picture which emerges from the statute and its legis-

lative history is that Congress used every effort and every

device available to create an entity which would provide

maximum financial and other assistance to the noncom-

mercial educational broadcasting industry with a minimum

of federal government involvement. The design is capsu-

lized in the language of § 398 which says in part:

... Nothing contained in this part shall be deemed

... to authorize any department, agency, officer, or em-

ployee of the United States to exercise any direction,

supervision, or control over educational television or

‘ 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

radio broadcasting, or over the Corporation of 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 dis-

satisfied with the operations of CBP.

In the view of the Court, were it to allow suits under the

Aét by persons who had no more than a viewing interest

or who were otherwise merely dissatisfied with the man-

ner m 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 inevitably enmesh

the courts in supervision of the detailed day-to-day opera-

tions of CPB—a result which Congress clearly intended to

avoid.®

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-

* Plaintiffs’ Ninth Claim for Relief alleges, inter alia, that CPB’s

Board of Directors is improperly constituted, in violation of the

Public Broadeasting 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 cireumstances. See Part V infra. See

also note 3 supra.

36a

tiff.’’ The Court agrees with the defendants that 4 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 proceeding 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 Broad-

casting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997,

87 L.Ed.2d 1344 (1934).’ The defendants counter that the

Act, by its terms, was enacted under the ‘‘general welfare”’

clause of the Constitution,’ not the commerce clause, thus

making § 1337 inapplicable 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

* 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 t “ommuniecations Act of 1934. See, e.g., Smothers

v. Columbia b._adcasting System, Inc., 351 F.Supp. 622, 624-25

(C.D.Cal.1972), and cases cited therein.

* 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 broadeast 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. )

37a

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 knowledge

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.1.0., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939);

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 jurisdictional

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

* In that instance, there is no pendent jurisdiction under § 1337.

Post v. Peyton, 323 F.Supp. 799 (E.D.N.Y.1971).

38a

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 fviiowing:

(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 « judg-

ment for the plaintiffs would be in excess of $10,')00

We look at each of these claims.

(1) As to plaintiff-viewers’ assertion that First

Amendment rights are by definition worth more than

$10,000, it is well established in this Circuit that ‘‘any auto-

matic finding of the required amount in controversy just

because (constitutional) 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. Accord-

ingly, this assertion, without more, must fail.

(2) In measuring the pecuniary value to the claim of the

deprivation of their right to receive, plaintiffs attempt to

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 S.Ct. 505, 38

L.Ed.2d 511 (1973) ; Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053,

22 LL. 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

ascribe that valuation in terms of the cost to them in pur-

chasing ‘‘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 as-

serted loss of a right to receive as set out in their com-

plaint. The claim of the plaintiff-viewers is that they were

deprived of the opportunity to experience the ideas and

viewpoints contained in certain programs via noncommer-

cial 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 Commission that local] licensees must re-

tain the absolute right to edit, select and reject programs.

47 C.F.R. § 73.658(e). See also National Broadcasting Co.

v. United States, supra. More basically, plaintiffs’ argu-

ment is devoid of any competent proof that the cost of ac-

quiring a certain program allegedly censored by defend-

ants would in fact exceed $10,000. Cf. James v. Lusby,

supra.

(3) Plaintiffs’ contention that they are harmed be-

cause the institution of noncommercial educational televi-

sion broadcasting is damaged by the defendants’ assertedly

unlawful 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.”

“™**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).

“In an analagous context, the Supreme Court has consistently

held that generalized grievances common to a class do not ordinarily

satisfy jurisdictional prerequisites. See, e. g., Schlesinger v. Reser-

40a

(4) In terms of the judgment which the case would

produce 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 re-

sulting 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,

vists 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 constitu-

tional 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).

13 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. They seek

damages for the supposed injury to their professional reputations

and for the failure to have their work product distributed over non-

commercial educational television.

The damages these plaintiffs seek are not for the injury from

CPB’s and PBS’s denial of their alleged rights to communicate

ideas or experiences, but rather are damages emanating from loss

of jobs and injuries to reputations. These rights, whatever their

scope, and the damages, if any, flowing from their alleged violation,

are irrelevant to the matter in controversy. The First and Fifth

Amendments and the Publie Broadeasting Act of 1967 do not pro-

tect either these plaintiffs’ right to work in the noncommercial

educational television field or their professional reputations in that

field. Therefore, the Fourth Claim for Relief must be dismissed for

failure to state a eause of action upon which relief can be granted.

Fed.R.Civ.P. 12(b) (6).

4la

supra. Cf. Kheel v. Port of New York Authority, 457 F.2d

46 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34

L.Ed.2d 248 (1972).

In light of the foregoing, the Court need not reach the

remaining First Amendment claims of the plaintiff-viewers,

viz., whether CPB and PBS are sufficiently imbued with

“*state action;’’** whether these plaintiffs have stated a

cause of action of a right to receive under the First Amend-

ment;** and whether these plaintiffs have the requisite

‘*standing’’ to maintain such a cause of action."

Accordingly, it is by the Court this 23rd day of July,

1975,

Ordered, adjudged and decreed that plaintiffs’ complaint

against the federal defendants Whithead and Buchanan be,

and the same is hereby, dismissed as moot; and it is

further

Ordered, adjudged and decreed that plaintiffs’ Ninth

Claim for Relief in the complaint, concerning Irving Kris-

tol, be, and the same is hereby, dismissed as moot; and it

is further

* See, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 345,

95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ; Greenya v. George Washington

University, 512 F.2d 556 (D.C.Cir. 1975).

** See, e. g., Kleindienst v. Mandel, 408 U.S. 753, 82 S.Ct. 2576,

33 L.Ed.2d 683 (1972); Avins v. Rutgers, 385 F.2d 151 (3d Cir.

1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982

(1968). Compare Comment—The Right to Receive and the Com-

mercial Speech Doctrine: New Constitutional Considerations, 63

Geo.L.J. 775 (1975).

*® See, e. g., Warth v. Seldin, U.S. ——, 95 S.Ct. 2197, 45

L.Ed.2d 343 (1975) ; Schlesinger v. Reservists Comm. to Stop the

War, supra; United States v. Richardson, 418 U.S. 166, 94 S.Ct.

2940, 41 L.Ed.2d 678 (1974) ; S. v. D., 410 U.S. 614, 93 S.Ct. 1146,

35 L.Ed.2d 536 (1973).

42a

Ordered, adjudged and decreed that plaintiffs’ complaint

alleging a private cause of action for damages and declara-

tory and injunctive relief under the Public Broadcasting

Act of 1967 be, and the same is hereby, dismissed for

failure to state a claim upon which relief can be granted;

and it is further

Ordered, adjudged and decreed that plaintiffs’ complaint

alleging jurisdiction under 28 U.S.C. §§ 1337 and 1361

(1970) be, and the same is hereby, dismissed for want of

such jurisdiction; and it is further

Ordered, adjudged and decreed that plaintiffs’ complaint

alleging jurisdiction under 28 U.S.C. § 1331(a) (1970) be,

and the same is hereby, dismissed for failure to satisfy the

$10,000 jurisdictional amount; and it is farther

Ordered, adjudged and decreed that plaintiffs’ Fourth

Claim for Relief in the complaint be, and the same is here-

by, dismissed for failure to state a claim upon which

relief can be granted.

43a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Sepremper Term, 1977

Crviz 1059-73

No. 75-1963

Tue Network Progscr, et al., Appellants

Corporation For Pusiic Broapncastrne, A Corporation, et al

Appeal from the United States District Court for the

District of Columbia.

Before: Rosinson and Wurixey, Circuit Judges, and Wi-

LIAM J. JameEson,*® United States Senior Distriet

Judge for the District of Montana.

Judgment

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel.

On consideration thereof It is ordered and adjudged by

this Court that the judgment—of the District Court ap-

pealec< irom in this cause is hereby affirmed as to rejection

of appellants’ statutory claims and to the extent necessary

to enable consideration of the constitutional claims on the

merits, we reverse the judgment appealed from and re-

mand the case for further proceedings, consistent with the

opinion of the Court filed herein this date.

Per Curiam

For the Court

A. Fisher, Clerk

/s/ By: Ropert A. Borner

Robert A. Bonner

Chief Deputy Clerk

tta

APPENDIX D

SUPR! 4E COURT OF THE UNITED STATES

No. A-356, Ocroser Term, 1977

CorporaTion For Pusiic Broapcastine, Petitioner,

Tue Network PROJECT, ET AL.

Order Extending Time to File Petition for Writ of Certiorari

Upon Consmgration of the application of counsel for

petitioner(s),

Ir Is Onperep that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including December 15, 1977.

/s/ Warren E. Burcer

Chief Justice of the United States.

Dated this 26th day of October, 1977.

45a

APPENDIX E

Relevant Statutory and Constitutional Provisions

A. Sratures

1. Judicial Code, 28 U.S.C. §1331(a) :

(a) The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest and

costs, and arises under the Constitution, laws, or treaties

of the United States except that no such sum or value shall

be required in any such action breught against the United

States, any agency thereof, or any officer or employee

thereof in his official capacity.

2. Judicial Code, 28 U.S.C. § 1337:

The district courts shall have original jurisdiction of any

civil action or proceeding arising under any Act of Con-

gress regulating commerce or protecting trade and com-

merce against restraints and monopolies.

3. Judicial Code, 28 U.S.C. § 1361:

The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer

or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.

4. Section 396(b) of the Public Broadeasting Act of 1967,

47 U.S.C. §396(b):

(b) There is authorized to be established a nonprofit

corperation, to be known as the ‘‘Corporation for Public

Broadcasting’’, which will not be an agency or establish-

ment of the United States Government. The Corporation

shall be subject to the provisions of this section, and, to the

extent consistent with this section, to the District of Co-

lumbia Nonprofit Corporation Act.

46a

B. ConstitutTionaL Provisions

Constitution of the United States, Art. ITI, §§ 1 and 2:

Section 1. The judicial Power of the United States, shall

be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and

establish. The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behaviour, and

shall, at stated Times, receive for their Services, a Com-

pensation, which shall not be diminished during their Con-

tinuance in Office.

Section 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which

shall be male, under their Authority ;—to all Cases affect-

ing Ambassadors, other public Ministers and Consuls ;—

to all Cases of admiralty and maritime Jurisdiction ;—to

Controversies to which the United States shall be a Party;-

—to Controversies between two or more States ;—between

a State and Citizens of another State;—between Citizens

of different States,—between Citizens of the same State

claiming Lands under Grants of different States, and be-

tween a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

In all Cases affecting Ambassadors, other public Min-

isters and Consuls, and those in which a State shall be

Party, the supreme Court shall have original] Jurisdiction.

In all the other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both as to Law

and Fact, with such Exceptions, and under such Regula-

tions as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in the

State where the said Crimes shall have been committed;

but when not committed within any State, the Trial shall

be at such Place or Places as the Congress may by Law

have directed.

‘

7 _ —S

— ow

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