Jurisdictional Statement — Federal Communications Commission v. League of Women Voters of California

OCTOBER TERM, 1983

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT

Vv.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

JURISDICTIONAL STATEMENT

REx E. LEE

Solicitor General

J. PAUL McGRaTH

Assistant Attorney General

PAUL M. BaTor

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20580

(202) 683-2217

QUESTION PRESENTED

Whether 47 U.S.C. 399, which prohibits “editorial-

izing” by noncommercial educational broadcasting

stations that receive grants from the Corporation for

Public Broadcasting, violates the First Amendment.

(1)

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

Pacifica Foundation and Henry Waxman were party

plaintiffs in the district court.

TABLE OF CONTENTS

Page

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Appendix F 2la

TABLE OF AUTHORITIES

Cases:

Griggs Vv. Provident Consumer Discount Co., No.

EE LOSE, Tt ED ‘scintsisenennnninteernninicstaniotin 3

Liberty Mutual Insurance Co. v. Wetzel, 424 U.S.

, PEPER pene PR Ea a 0 iene te BS AS tr! 6

Constitution, statute and rules:

U.S. Const. Amend, I 4

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ts I tar MOEN TIED | c ssincateicisnsidacsnstahiioesatecbatichangibend 5

Fed. R. Civ. P. 59 (e) 2, 3, 4, 5

Sup. Ct. R. 11.8 5

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BE FRUIT cdsshcacsnsibmicvcncdadte ssctinhaaiaaiidamibagd 5

Rule 53.2 7

(iI)

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No.

FEDERAL COMMUNICATIONS COMMISSION, APPELLANT

v.

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the district court on the constitu-

tional question (82-912 J.S. App. la-20a) is re

ported at 547 F. Supp. 379. The order denying attor-

neys’ fees (App. C, infra, 6a-18a) and the order

denying appellees’ motion to alter or amend that or-

der (App. A, infra, 1a-3a) are unreported.

JURISDICTION

The judgment of the district court (App. A, infra,

la-3a) was entered on August 25, 1983. The notice of

appeal (App. E, infra, 19a-20a) was filed on Septem-

ber 6, 1983. The jurisdiction of this Court is invoked

under 28 U.S.C. 1252.

(1)

2

STATEMENT

1. On August 5, 1982, the district court issued a

judgment in this case that (1) declared unconstitu-

tional the provision of 47 U.S.C. (Supp. V) 399 pro-

hibiting editorializing by certain public broadcasting

stations, (2) enjoined the Federal Communications

Commission and others from enforcing that provision,

and (8) provided that appellees “shall recover their

costs and reasonable attorneys’ fees” (App. B, infra,

4a-5a). That judgment was entered on August 6,

1982. On August 16, 1982, the Commission filed what

was styled a motion to alter or amend the judgment

under Fed. R. Civ. P. 59(e) “on the ground that the

award to plaintiffs of reasonable attorneys’ fees is

barred by sovereign immunity because the award was

not made in accord with the procedures or limitations

of the Equal Access to Justice Act, 28 U.S.C. § 2412”

(82-912 Mot. to Dis. App. 3a-4a). Appellees op-

posed this motion. On September 3, 1982, the Com-

mission filed a notice of appeal from the district

court’s judgment of August 5, 1982 (82-912 J.S. App.

23a-24a). Justice Rehnquist subsequently extended

the time for docketing an appeal until December 1,

1982, and the appeal was docketed on that date as

No. 82-912. This Court’s jurisdiction was invoked

under 28 U.S.C. 1252, which provides in pertinent

part:

Any party may appeal to the Supreme Court

from an interlocutory or final judgment, decree

or order of any court of the United States * * *

holding an Act of Congress unconstitutional in

any civil action, suit, or proceeding to which

the United States or any of its agencies * * * isa

party.

In the interim, the district court addressed the

pleadings concerning attorneys’ fees. The district

court declined to treat the Commission’s August 16

motion as a motion under Fed. R. Civ. P. 59(e). A

minute entry entered on November 1, 1982, by the

clerk of the court, reports the following proceedings

(App. D, infra, 18a):

The Court Orders that its previous award of at-

torney fees is stricken from the judgment. Plain-

tiffs’ opposition to the defendant [sic] motion to

amend judgment is deemed a motion for attorney

fees and the defendant’s motion to amend the

judgment is deemed the opposition to a motion

for attorney fees.

The motion for an award of attorney fees is ar-

gued to the Court. The Court takes the motion

under submission.

2. Appellees moved to dismiss the Commission’s

appeal in No, 82-912, arguing that notice of appeal

had not been timely filed. Appellees contended (Mot.

to Dis. 11-12) that the Commission’s August 16 mo-

tion regarding attorneys’ fees was a “motion for re-

consideration” that “suspended the finality of the Dis-

trict Court’s judgment” and terminated the sunning

of the time for appeal. They appeared to argue

(ibid.) that the reported proceedings of November 1,

1982, constituted a final disposition of this case and

that the time for appeal ran from that date. They

therefore concluded (id. at 12-13) that the notice of

appeal filed on September 3 was premature and con-

sequently of no effect (see Griggs v. Provident Con-

sumer Discount Co., No. 82-5082 (Nov. 29, 1982)

(notice of appeal to court of appeals filed while timely

Rule 59 motion is pending is a nullity) ). And since

another notice of appeal was not filed within 30 days

4

after November 1, appellees maintained (Mot. to Dis.

12-13) that appellate jurisdiction was lacking.

On February 28, 1983, this Court postponed fur-

ther consideration of the question of jurisdiction in

No. 82-912 to the hearing on the merits. Both the

Commission and appellees have now filed briefs on

the merits.

3. On July 11, 1983, after briefing and argument,

the district court denied appellees’ request for attor-

neys’ fees (App. C, infra, 6a-17a). Nine days there-

after on July 20, 1983, appellees filed a timely motion

under Fed. R. Civ. P. 59(e) to alter or amend the

July 11 order (App. F, infra, 21a-25a), but on Au-

gust 25, 1983, the district court entered an order

denying that motion (App. A, infra, la-3a). On Sep-

tember 6, 1983, the Federal Communication Commis-

sion filed notice of appeal to this Court (App. E, in-

fra, 19a-20a).

THE QUESTION IS SUBSTANTIAL

The purpose of this appeal is to ensure that the im-

portant question presented by the district court’s de-

cision on the merits of this case—whether 47 U.S.C.

(Supp. V) 399 violates the First Amendment—does

not escape review by this Court due to a procedural

technicality. This constitutional question is now be-

fore the Court in No. 82-912 and has been fully

briefed. However, the Court also has before it appel-

lees’ motion to dismiss that appeal on the ground that

the notice of appeal was not timely filed. As previ-

ously noted, appellees contend that the Commission’s

August 16, 1982, motion regarding attorneys’ fees

“suspended the finality” of the prior order holding

Section 399 unconstitutional (82-912 Mot. to Dis. 11-

12) and rendered void the notice of appeal filed by the

Commission while the question of attorneys’ fees was

5

still pending (id. at 12-13). For the reasons explained

at length in our briefs in No. 82-912, we strenuously

disagree with appellees’ contention (see Br. 1-2; Re-

ply Memorandum 2-8). But if appellees are correct, it

must follow that the finality of the district court or-

der holding Section 399 unconstitutional remained

suspended until that court settled the question of at-

torneys’ fees with its order of August 25, 1983, deny-

ing appellees’ timely motion under Fed. R. Civ. P. 59

(e) to alter or amend the district court’s order of July

11, 1983, denying attorneys’ fees.. We have conse-

quently taken this appeal from that order.

Appellees seek to frustrate this Court’s review of

the district court’s decision by suggesting (82-912

Mot. to Dis. 11-12) that the district court clerk’s

minute entry of November 1, 1982, constituted a final

disposition of appellant’s Rule 59 Motion and that ap-

pellant was therefore required to file notice of appeal

within 30 days thereafter. Appellees’ argument is

patently incorrect. The minute entry of November 1,

1982, cannot possibly be the final order in this case

because it did not dispose of the question of attorneys’

fees but instead provided simply that the Court “takes

the motion under submission” (App. D, infra, 18a).?

1 As appellees themselves have argued (see 82-912 Mot. to

Dis, 11-12), a timely Rule 59(e) motion suspends the final-

ity of a prior judgment. See Sup. Ct. R. 11.3; cf. Fed. R. App.

P. 4(a) (4). Unlike the Commission’s August 16, 1982, motion

regarding attorneys’ fees, which was completely collateral to

the district court’s prior order holding 47 U.S.C. (Supp. V)

899 unconstitutional (see 82-912 Appellant’s Reply Memoran-

dum 7-8), appellees’ July 20, 1983, motion was a true motion

to alter or amend the district court’s July 11 order denying

attorneys’ fees.

® Our understanding of the matter—that the judgment with

respect to the merits was entered on August 6, 1982, and that

6

See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S.

737, 742 (1976).°

In sum, our position continues to be that the im-

portant question on the merits—the constitutional

validity of Section 399—is properly before the Court

in No. 82-912, which was correctly noticed and dock-

eted as an “appeal * * * from an interlocutory or

final judgment, decree or order’’—that is, the deci-

sion of August 5, 1982—“holding an Act of Congress

[Section 399] unconstitutional.” 28 U.S.C, 1252. If,

however, this Court should determine that the issue

of the validity of Section 399 could not properly be

raised until the district court finally decided the issue

of attorneys’ fees—on August 25, 1983—then this ap-

peal becomes the proper case for the consideration of

that question.

In order to avoid procedural complications, we re-

spectfully suggest that this appeal be held until the

Court passes on the question of its jurisdiction in No.

82-912. If the Court should decide that it has juris-

diction in that appeal, the government will move to

the November 1, 1982 entry simply set the collateral attorneys’

fees question for argument— is quite clearly shared by the dis-

trict court in this case, In its final order of August 25, 1983,

disposing of the attorneys’ fees issue, that court stated: “Judg-

ment was entered in this litigation on August 6, 1982. On

November 1, 1982, the court heard oral argument of plain-

tiffs’ timely application for an award of attorneys’ fees under

28 U.S.C. § 2412(d) (1) (A). As indicated above [on July 11,

1983] the Court denied that application.” App. A, infra, 1a.

*In Liberty Mutual Insurance Co., an order was held not to

be final because it did not dispose of all the plaintiffs’ requests

for relief, including their request for attorneys’ fees (see 424

U.S. at 742). Here as well, plaintiffs’ attorneys’ fees request

(82-912 J.A. 11) was left pending by the November 1, 1982,

minute entry.

7

dismiss this appeal under Rule 53.2 of the Rules of

this Court. If the Court should decide it does not have

jurisdiction in No. 82-912, we ask that probable juris-

diction be noted in this appeal and that the briefs and

arguments on the merits in No. 82-912—involving

the identical case, the identical parties, and the iden-

tical constitutional issue—be deemed the relevant sub-

missions in this case.

CONCLUSION

For the foregoing reasons and those set forth in

our jurisdictional statement and brief in No, 82-912,

if the appeal in No. 89-912 is dismissed, probable

jurisdiction over this appeal should be noted, and the

briefs and arguments on the merits of No. 82-912

should be deemed the relevant submissions in this

case.

Respectfully submitted.

REx E. LEE

Solicitor General

J. PAUL MCGRATH

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

OCTOBER 1983

la

APPENDIX A

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV-79-1562-MML

LEAGUE OF WOMEN VOTERS OF CALIFORNIA,

ET AL., PLAINTIFFS

Vv.

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

ORDER DENYING PLAINTIFFS’

MOTION TO ALTER OR AMEND

On July 11, 1983 this Court denied plaintiffs’ ap-

plication for an award of attorneys’ fees under 28

U.S.C. § 2412(d) (1) (A). On July 20, 1983 plaintiffs

filed a motion pursuant to F.R.Civ.P. 59(e) to alter

or amend the July 11, 1983 order. The Court has re-

viewed the papers filed and has determined that oral

argument of this motion is not required. The Court,

therefore, takes the motion off calendar for Monday,

August 29, 1983. After careful consideration of the

papers filed and of the applicable authorities, the

Court denies plaintiffs’ motion.

Judgment was entered in this litigation on August

6, 1982. On November 1, 1982 the court heard oral

argument of plaintiffs’ timely application for an

award of attorneys’ fees under 28 U.S.C. § 2412(d)

(1)(A). As indicated above, the Court denied that

application. Plain’'%s now raise a new and different

2a

argument in support of their request for an award of

attorneys’ fees in this litigation. Plaintiffs contend

that they are entitled to an award of attorneys’ fees

under 28 U.S.C. § 2412(b), a provision of the Equal

Access to Justice Act entirely distinct from § 2412(d)

(1)(A). Prior to the filing of the present motion

plaintiffs had affirmatively represented to the Court

that § 2412(b) was not at issue in this case.

Under these circumstances, the Court should not

reach the merits of plaintiffs’ motion. All of the ar-

guments raised in the motion could have been raised

in the original application for attorneys’ fees. Section

2412(b) was in effect at the time plaintiffs’ filed their

original application. The interpretation of the statute

put forward by plaintiffs had been discussed, albeit

ultimately rejected, in published judicial decisions

prior to the filing of the original application. See

United States v. Miscellaneous Pornographic Maga-

zines, 541 F.Supp. 122 (N.D. Ill. 1982). The case re-

lied upon by plaintiffs, Lauritzen v. Secretary of the

Navy, 546 F.Supp. 1221 (C.D. Cal. 1982) was pub-

lished months before the Court issued its order deny-

ing plaintiffs’ application.* There is no reason that

the issues raised by the present motion could not have

been raised in conjunction with the original applica-

tion. The Court will not permit plaintiffs to raise

such issues by means of a motion pursuant to F.R.

Civ.P. 59(e). See, Huff v. Metropolitan Life Ins. Co.,

675 F.2d 119, 123 n.6 (6th Cir. 1982); Morgan v.

* The Court notes in this regard that plaintiffs were per-

mitted to file supplemental papers in support of their applica-

tion for an award of attorneys’ fees on December 23, 1982,

nearly two months after the publication of the Lauritzen de-

cision. No mention of § 2412(b) was made in these supple-

mental papers.

8a

O’Bryant, 671 F.2d 23, 26 (1st Cir.), cert. denied,

103 S.Ct. 62 (1982). See also, Local Rules of Practice

for the United States District Court for the Central

District of California, Rule 3.16. Thus, plaintiffs’ ap-

plication must be denied.

Even if the Court were to reach the merits of plain-

tiffs’ application, however, the Court would deny the

present motion. After careful consideration of the ap-

posite authorities, the Court has determined that it

would not follow the reasoning of the Lawritzen deci-

sion. Rather, the Court would adopt the reasoning set

forth in Venus v. Goodman, 556 F.Supp. 514 (W.D.

Wis. 1983) and Miscellaneous Pornographic Maga-

zines, supra, and decline to read § 2412(b) to permit

an award of attorneys’ fees under these facts. Thus,

even if plaintiffs had applied for an award of attor-

neys’ fees under § 2412(b) in an appropriate man-

ner, the Court would have denied plaintiffs’ applica-

tion.

IT IS SO ORERED.

IT IS FURTHER ORDERED that the Clerk shall

serve, by United States mail, copies of this Order on

counsel for the parties in this matter.

Dated: August 25, 1983

/s/ Malcolm M. Lucas

MALCOLM M. Lucas

United States District Judge

4a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV-79-1562-MML

LEAGUE OF WOMEN VOTERS OF CALIFORNIA,

ET AL., PLAINTIFFS

Vv.

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

SUMMARY JUDGMENT

This cause came on to be heard on motion of plain-

tiffs for summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure. The Court hav-

ing considered all pleadings, memoranda, and declara-

tions submitted herein, and having heard the argu-

ments of counsel, and having given due deliberation

to this matter,

IT IS ORDERED that plaintiffs’ motion for sum-

mary judgment is hereby granted, and further

ORDERED, ADJUDGED and DECREED, that

1. The prohibition against editorializing contained

in 47 U.S.C. § 399 is unconstitutional as a violation

of the First Amendment to the United States Consti-

tution, and is hereby declared null and void;

2. Defendant Federal Communications Commission

and any of its agents, employees and other acting in

5a

concert with it are hereby enjoined from forcing or

executing the prohibition against editorializing con-

tained in 47 U.S.C. § 399;

3. Plaintiffs shall recover their costs and reason-

able attorneys’ fees.

IT IS FURTHER ORDERED that the Clerk shall

serve, by United States mail, copies of this Judgment

on counsel for all parties in this matter.

Dated: August 5, 1982

/3/ Maleolm M. Lucas

MALCOLM M., Lucas

United States District Judge

6a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV-79-1562-MML

LEAGUE OF WOMEN VOTERS OF CALIFORNIA,

ET AL., PLAINTIFFS

Vv.

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

ORDER DENYING PLAINTIFFS’

APPLICATION FOR AN AWARD

OF ATTORNEYS’ FEES

On August 6, 1982 this Court entered summary

judgment in favor of plaintiffs. League of Women

Voters of California v. FCC, 547 F.Supp. 379 (C.D.

Cal. 1982). In the order granting summary judgment

the Court indicated that plaintiffs were entitled to an

award of costs and reasonable attorneys’ fees. I/d.,

577 F.Supp. at 388. Thereafter, defendant moved to

alter or amend the judgment to delete the award of

attorneys’ fees. Plaintiffs opposed this motion and

filed a timely application for an award of attorneys’

fees under the Equal Access to Justice Act, 28 U.S.C.

§ 2412 (“EAJA’”’). Plaintiffs’ application and defend-

ant’s motion came on for hearing before the Court, the

Honorable Malcolm M. Lucas, District Judge, presid-

ing, on November 1, 1982. At oral argument the

Court indicated that the award of attorneys’ fees was

Ta

inadvertently included in the August 6, 1982 order.

Such an award was not appropriate in that plaintiffs

had not applied for such an award at that time as

required by 28 U.S.C. § 2412(d)(1)(B). The Court,

therefore, orally ordered the award of attorneys’ fees

stricken from the judgment pursuant to F.R.Civ.P. 60.

The Court then proceeded to hear plaintiffs’ applica-

tion, treating defendants’ papers in support of its mo-

tion to alter or amend the judgment as papers in op-

position to plaintiffs’ application. After careful con-

sideration of the excellent briefs and oral argument

presented by counsel for both parties, the Court denies

plaintiffs’ application for an award of attorneys’ fees

under the EAJA. Plaintiffs are, however, entitled to

their costs of this action. 28 U.S.C. § 2412(a).

The EAJA provides that a prevailing party’ in

litigation against the United States or an agency or

officer of the United States is entitled to an award of

reasonable attorneys’ fees “unless the Court finds that

the position of the United States was substantially

justified or that special circumstances make an award

unjust.” 28 U.S.C. § 2412(d)(1)(A). “After a pre-

vailing party has submitted an application for an

award, the burden of proving that a fee award

should not be made rests with the Government.” H.R.

Rep. No. 1418, 96th Cong., 2d Sess. reprinted in

[1980] U.S. Code Cong. & Ad. News 4984, 5011.

1 Defendant concedes that plaintiff Pacifica Foundation is a

prevailing party within the meaning of the EAJA. Because

the Court has determined that an award of attorneys’ fees is

not appropriate in this case, the Court does not need to ad-

dress the more difficult question of whether plaintiff Henry

Waxman and/or plaintiff League of Women Voters is a pre-

vailing party.

8a

Plaintiffs succeeded in this litigation in establish-

ing that a federal statute, 47 U.S.C. § 399,? was un-

constitutional on its face. Although, as will be dis-

cussed fully below, defendant did not oppose plaintiffs

throughout much of this litigation, defendant argues

that even if it had vigorously defended the constitu-

tionality of § 399 its position would have been “sub-

stantially justified” as a matter of law. That is, de-

fendant contends that as a threshold “matter of law,

an Executive agency is [substantially] justified in

defending an act of Congress against Constitutional

challenge.” (Defendant’s Memorandum of Points and

Authorities in Support of Motion to Alter or Amend

lines 14-16.) In support of this argument defendant

notes that there is usually a strong presumption in

favor of the constitutional validity of congressional

action. Defendant further argues that “it is incon-

ceivable that Congress itself intended for attorneys’

fees to be assessed against an Executive agency that

has done nothing more or less than [defend the con-

stitutionality of statutes enacted by Congress.]”

(Defendant’s Memorandum, page 11, lines 24-27.)

Although it is certainly true that defense of a con-

gressional statute from constitutional challenge will

usually be substantially justified, the Court rejects

defendant’s argument that this is true as a matter of

law. The language of the EAJA is clear: it applies

to “any civil action [other than cases sounding in

tort].” 28 U.S.C. § 2412(d)(1)(A). There is noth-

ing in the statute itself or in its legislative history to

support defendant’s argument that attorneys’ fees

2 See League of Women Voters, supra, 577 F.Supp. at 381

n.2, for a discussion of the changes in the designation of this

statute during the course of the litigation.

9a

cannot be awarded in cases involving a constitutional

challenge to a federal statute.*

The Court must, therefore, turn to the facts of this

case to determine whether an award of attorneys’

fees is warranted. The complex procedural history of

this case has been set forth at length in the Court’s

order granting summary judgment. League of

Women Voters, supra, 547 F.Supp. 380-383. How-

ever, a summary of this history will be useful here.

This action for declaratory relief was filed on

April 30, 1979. The original complaint challenged

two restrictions imposed upon noncommercial educa-

tional broadcasting stations by 47 U.S.C. § 399. Un-

der this statute noncommercial educational broadcast-

ing stations were prohibited both from editorializing

and from supporting or opposing candidates for polit-

ical office. Plaintiffs contended that these prohibitions

violated the First and Fifth Amendments. Defendant

answered on July 30, 1979 alleging that plaintiffs

were not entitled to the relief sought. An amended

complaint was filed by stipulation of the parties on

August 28, 1979 making a minor correction in the

language of the original complaint. On September 12,

1979 defendant answered the amended complaint

without significant change from the first answer filed.

The parties agreed that there were no genuine

issues of material fact to be resolved that the legal

issues raised by the complaint could be resolved by

motion for summary judgment. Plaintiff filed such a

motion on September 24, 1979 and noticed it for hear-

ing on November 5, 1979. On October 22, 1979 the

* The Court notes, further, that the presumption in favor of

constitutionality noted by defendants is reversed in some

cases, in particular, in cases such as the present one. See

League of Women Voters, supra, 547 F.Supp. at 384.

10a

parties submitted a stipulation continuing the hear-

ing of this motion on the grounds that

“Ttjhe attorney for the defendant, the United

States Department of Justice, has determined to

discontinue its defense of the constitutionality of

[§ 399} .. and has so advised both Houses of

Congress. An extension of time is required to

enable the Congress to consider the matter, and

to take such action within its power with regard

to this case as it may deem proper.”

Thereafter, the Senate, represented by its own

counsel, sought leave to appear as amicus curiae and

requested permission to file a motion to dismiss.

Plaintiffs filed extensive papers in opposition to the

Senate’s motion. The Court granted leave for the

Senate to appear as amicus curiae and permitted the

filing of the Senate’s motion toe dismiss. Noting that

there was a distinct likelihood that the defendant

would not enforce § 399 and that defendant’s counsel

had not opposed plaintiff’s motion for summary judg-

ment, the Court dismissed the action on the grounds

that there was no justiciable case or controversy. The

Court, therefore, did not reach plaintiff’s motion for

summary judgment.

Plaintiffs appealed the order of dismissal. Defend-

ant took no position on the appeal. Approximately

one year after the appeal was filed but before the case

was heard or a decision rendered, counsel for defend-

ant, under the newly appointed attorney general,

changed its position and decided to defend the con-

stitutionality of § 399. The appellate court remanded

the action for a determination of the effect of this

change on the Court’s dismissal. On remand the

Court vacated its order of dismissal. The appeal was

lla

subsequently dismissed. The Senate was given leave

to withdraw from the litigation.

By order of June 18, 1981, the Court again set

plaintiffs’ motion for summary judgment on calendar

and ordered the parties to file supplemental briefs.

Several days before plaintiffs’ motion was to be

argued to the Court, Congress amended § 399 to limit

significantly the statute’s ban on editorializing. In

light of this change, the Court continued plaintiff’s

motion, permitted plaintiff to file an amended com-

plaint reflecting the amendment of § 399, and per-

mitted the filing of further supplemental briefs.

On October 2, 1981 plaintiffs filed an amended

complaint. In this complaint, however, plaintiffs

dropped their challenge to that portion of § 399 which

had not been amended (i.e., that portion which pro-

hibited all public broadcasters from supporting or

opposing political candidates) and restricted their

constitutional challenge to the newly amended and

limited ban on editorializing. On this issue plaintiffs’

First Amendment challenge was successful.

As indicated above, the EAJA mandates an award

of attorneys’ fees to the prevailing party in a civil

action brought by or against an agency of the United

States unless the position of the United States was

substantially justified or . . . special circumstances

make an award unjust.” 28 U.S.C. § 2412(d) (1)

(A). The phrase “substantially justified” has been

construed in this and other Circuits to be a reason-

ableness test. See Foster v. Tourtellotte, 704 F.2d

1109, 1111-12 (9th Cir. 1983).

The present case presents an unusual framework

for the application of this standard in that the United

States was involved both as a party, through defend-

ant FCC, and as amicus curiae, through the Senate.

12a

The papers filed by the parties focus primarily on de-

fendant’s position in this litigation. This is appropri-

ate in that the position of the Senate was clearly rea-

sonable.

The Senate’s role in this litigation was limited to

that of amicus curiae, As a friend of the Court, the

Senate assisted the Court in resolving the difficult

question of whether this action presented a justiciable

case or controversy. The Senate did not become in-

volved in the merits of plaintiff’s constitutional chal-

lenge. When it became clear that a justiciable con-

troversy had developed, the Senate withdrew from the

litigation. Under these circumstances, the Court con-

cludes that the Senate’s position was reasonable and,

thus, substantially justified. Therefore, no award of

attorneys’ fees may be predicated upon the Senate’s

role in this litigation.

The Court must now consider the reasonableness of

the “position of the United States” insofar as defend-

ant FCC is concerned. This is a difficult task under

the highly unsual facts of this case.

It is important to note at the outset that this liti-

gation was initiated by plaintiff in an effort to obtain

a declaration that § 399 was unconstitutional. The

lawsuit was not necessitated by any affirmative action

of defendant. Although defendant initially filed an

answer denying plaintiffs’ entitlement to the relief

sought, defendant did not oppose plaintiffs’ motion for

summary judgment, filed less than five months after

the action was commenced. Thus, as soon as the

merits of plaintiffs’ claims were brought before the

Court, defendant conceded the correctness of plain-

tiffs’ legal argument and did everything in its power

to assist plaintiffs in obtaining the relief sought. It

should be emphasized that defendant had no power to

18a

grant plaintiff the declaratory relief sought. Defend-

ant was faced with an unambiguous federal statute.

It was not possible to interpret the clear language of

§ 399 so as to remedy the perceived constitutional

defect. Defendant did not oppose plaintiffs’ motion

for summary judgment and indicated that it would,

in essence, not enforce § 399 should plaintiff Pacifica

choose to violate it. It could do no more.

The EAJA is intended “to caution agencies to care-

fully evaluate their case and not to pursue those

which are weak and tenuous.” H.R. Rep. No. 1418,

96th Cong., 2d Sess. (1980), reprinted in [1980]

U.S. Code Cong. & Ad. News 4984, 4993. This is pre-

cisely what defendant did in this case.

This case is easily distinguished from the cases

cited by plaintiffs in which attorneys’ fees were

awarded despite the fact that the United States con-

ceded the incorrectness of its position early in the liti-

gation. In United States v. Pomp, 538 F.Supp. 513

(M.D. Fla. 1982), cited by plaintiff, the action was

initiated by the United States to recover a tax penalty

and then dismissed when the United States deter-

mined that defendant was not liable for the penalty.

Clearly this is not apposite to the present case.

Plaintiff also cites Ocasio v. Schweiker, 540 F.Supp.

1320 (S.D.N.Y. 1982) and Photo Data, Inc. v. Saw-

yer, 583 F.Supp. 348 (D.D.C. 1982) in support of its

argument. In Ocasio plaintiff sought to obtain social

security benefits which had been unlawfully withheld

due to an erroneous interpretation of the relevant

statute by the Social Security Administration. After

exhausting her administrative remedies, plaintiff

sought judicial review. Counel for the government

conceded that plaintiff was entitled to the benefits

and entered into a stipulation which “corrected the

ld4a

Agency’s interpretation” of the relevant statute. In

Photo Data the government also settled an action

based on allegations of unlawful agency action. In

that case a government agency had found that the low

bidder on one of its contracts was “nonresponsible”

and, therefore, not entitled to the award of a certain

contract. The bidder filed suit and the parties shortly

thereafter entered into a stipulation pursuant to

which the agency rescinded its finding of nonrespon-

sibility.

In both of these cases the award of attorneys’ fees

was based on a finding that the underlying agency

action was not substantially justified, not on a finding

that the position of the United States was unreason-

able in settling the subsequent litigation. In the pres-

ent case there is no underlying unreasonable agency

action upon which an award of attorneys’ fees could

be predicated.*

The Court concludes that because defendant did not

initially oppose plaintiff in any substantial manner

* The Court notes in addition that there is some question as

to the correctness of the analysis followed in these cases. It is

not yet clearly established whether “the position of the

United States” refers solely to the post-complaint stage or

whether the pre-complaint stage may also be considered. See

Goldhaber v. Foley, 698 F.2d 198, 196 (8d Cir. 1988); Broad

Avenue Laundry and Tailoring v. United States, 698 F.2d

1887, 1890-91 (Cir. Fed. 1982) ; Environmental Defense Fund,

Inc. v. Watt, 554 F.Supp. 36, 40-41 (E.D.N.Y. 1982). The

court in Environmental Defense Fund, supra, noted that

“where the government settle[s] a case shortly after it [is]

initiated, the difference [between the “post-complaint only”

and the “pre- or post-complaint” approach] may prove to be

critical.” Jd., 554 F.Supp. at 40. The present case clearly can

involve only the post-complaint stage insomuch as plaintiff

filed the complaint prior to any action by defendant.

15a

the “position of the United States” in the initial

stages of this litigation was reasonable and, there-

fore, substantially justified.

As indicated above, plaintiff appealed this Court’s

order terminating the initial phase of this litigation.

Consistent with its earlier stance, defendant took no

position on appeal. This “position” was also reason-

able. This stage of the litigation was begun and

maintained solely due to plaintiffs’ desire to obtain a

judicial declaration of the statute’s unconstitutional-

ity. This relief could not have been provided by

defendant.

Of course, as plaintiffs emphasize, defendant

changed its position approximately one year later,

under the new attorney general, and decided to de-

fend the constitutionality of § 399. This change in

position must be viewed, however, in light of the sub-

sequent amendment of § 399 and the limitation of

the scope of this litigation by plaintiffs shortly there-

after.

As discussed above, Congress amended § 399 less

than four months after defendant changed its posi-

tion with respect to § 399. The new statute, which

defendant continued to defend, was apparently a

Congressional attempt to remedy the perceived con-

stitutional defect in §399’s ban on editorializing.

Plaintiffs then amended their complaint to focus their

attack solely on the amended portion of § 399. Thus,

the dispute on which plaintiffs ultimately prevailed

and the statute which defendant ultimately defended

were quite different from those which were at issue

when this litigation began.

The Court finds that defendant’s defense of plain-

tiffs’ limited challenge to the amended § 399 was also

reasonable. The amendment of the statute was ap-

16a

parently intended as an effort to remedy the per-

ceived constitutional defect in the statute. It was

reasonable for defendant to seek a judicial determina-

tion as to whether this effort had been successful.

The standard of substantial justification does not re-

quire defendant to show that it had a substantial prob-

ability of prevailing on the defense. H.R. Rep. No.

1418, 96th Cong., 2d Sess. (1980), reprinted in

[1980] U.S. Code Cong. & Ad. News 4984, 4990. De-

fendant is only required to show that the decision to

defend the statute served some legitimate, reasonable

ends. The Court concludes that defendant has made

such a showing. Plaintiffs’ application for attorneys’

fees must, therefore, be denied.

The EAJA also permits the Court to decline to

award attorneys’ fees where “special circumstances

would make an award unjust.” 28 U.S.C. § 2412(d)

(1)(A). It appears that this provision in the Act

was intended primarily as a “safety valve” to be used

where the government advanced “novel but credible

extensions and interpretations of the law that often

underlie vigorous enforcement efforts.” H.R. Rep.

No. 1418, 96th Cong., 2d Sess. (1980), reprinted in

[1980] U.S. Code Cong. & Ad. News 4984, 4990. It

is clear that this rationale would not apply in the

present case. However, the legislative history also

suggests that this “safety valve” may be used in other

circumstances where “equitable considerations dictate

an award should not be made.” Jd. The Court has

carefully considered all of the facts and circum-

stances surrounding this unusual litigation. Defend-

ant did not initiate this litigation either directly or

indirectly. Defendant did not oppose plaintiffs’

motion for summary judgment filed very early in the

litigation. Plaintiffs kept the litigation alive by ap-

17a

pealing the Court’s order of dismissal. Defendant

to.’ ~ position on appeal. The ultimate defense of

plai: fs’ limited challenge to the amended § 399 was

reasonable. Under these special circumstances, the

Court concludes that an award of attorneys’ fees

would be unjust. This conclusion provides an alter-

nate basis for the Court’s denial of plaintiffs’ appli-

cation for such an award. Plaintiffs shall, however,

recover the costs of this action. 28 U.S.C. § 2412(a).

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall

serve, by United States mail, copies of this Order on

counsel for the parties in this matter.

Dated: July 11, 1983.

/s/ Malcolm M. Lucas

MALCOLM M. LUCAS

United States District Judge

18a

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No, CV79-1562-MML Date November 1, 1982

Title League of Women Voters, et al. -v- F.C.C.

PRESENT:

HON. MALCOLM M. LUCAS, JUDGE

Duane Hostetter Don Mehler

Deputy Clerk Court Reporter

ATTORNEYS PRESENT ATTORNEYS PRESENT

FOR PLAINTIFFS: FOR DEFENDANTS:

Fredric Woocher Judith Ledbetter, USDJ

PROCEEDINGS:

Counsel are present. The Court Orders that its

previous award of attorney fees is stricken from

the judgment. Plaintiffs’ opposition to the de-

fendant motion to amend judgment is deemed

a motion for attorney fees and the defendant’s

motion to amend the judgment is deemed the op-

position to a motion for attorney fees.

The motion for an award of attorney fees is ar-

gued to the Court. The Court takes the motion

under submission.

Initials of Deputy Clerk [wlegible]

19a

APPENDIX E

J. PAUL MCGRATH

Assistant Attorney General

ALEXANDER H. WILLIAMS, III

United States Attorney

STEPHEN D. PETERSEN

Assistant United States Attorney

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 688-3552

PAUL BLANKENSTEIN

MERRIL HIRSH

Attorneys, Civil Division

Department of Justice, Room 3334

10th Street & Constitution Avenue, N.W.

Washington, D.C. 20530

Telephone: (202) 633-5578

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

[Filed September 6, 1983]

No. CV 79-1562-MML(PX)

LEAGUE OF WOMEN VOTERS OF

CALIFORNIA, ET AL., PLAINTIFFS

v.

FEDERAL COMMUNICATIONS

COMMISSION, DEFENDANT

20a

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that the Federal Communi-

cations Commission, the defendant above-named,

hereby appeals to the Supreme Court of the United

States from the order entered in this action on Au-

gust 25, 1983.

This appeal is taken pursuant to 28 U.S.C. § 1252.

Respectfully submitted,

J. PAUL MCGRATH

Assistant Attorney General

ALEXANDER H. WILLIAMS, III

United States Attorney

/s/ Paul Blankenstein

PAUL BLANKENSTEIN

/s/ Merril Hirsh

MERRIL HIRSH

Attorneys, Civil Division

U.S. Department of Justice, Rm. 3334

10th & Pennsylvania Ave, N.W.

Washington, D.C. 20530

Attorneys for Defendant.

DATED: August 31, 1983

2la

APPENDIX F

FREDERIC D. WOOCHER

LUCAS GUTTENTAG

BILL LANN LEE

MARILYN O, TESAURO

JOHN R., PHILLIPS

Center for Law in the

Public Interest

10951 West Pico Boulevard

Third Floor

Los Angeles, CA 90064

(213) 470-3000

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Civ. No. 79-1562 MML (Px)

LEAGUE OF WOMEN VOTERS OF CALIFORNIA,

ET AL., PLAINTIFFS

v.

FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT

Hearing:

Date: August 15, 1983

Time: 9:30 a.m.

22a

NOTICE OF MOTION AND

MOTION TO ALTER AND AMEND

ORDER OF JULY 11, 1983

TO AWARD REASONABLE

ATTORNEYS’ FEES PURSUANT

TO 28 U.S.C. § 2412(b)

NOTICE IS HEREBY GIVEN that on August 15,

1983, in thé courtroom of the Honorable Malcolm M.

Lucas, United States District Judge, United States

Courthouse, Los Angeles, California, plaintiffs League

of Women Voters of California, et al., will move the

Court to alter and amend its July 11, 1983 Order

Denying Plaintiffs’ Application for an Award of At-

torneys’ Fees, and to order that plaintiffs are entitled

to an award of reasonable attorneys’ fees pursuant

to 28 U.S.C. § 2412(b). The motion is filed pur-

suant to Rule 59(e), Fed. R. Civ. P.

This motion is filed to reopen consideration of plain-

tiffs’ application for an award of attorneys’ fees pur-

suant to the Equal Access ‘su Justice Act, 28 U.S.C.

§ 2412. Section 2412 provides for awards of fees un-

der two separate subsections, § 2412(d) (1) (A), which

requires such an award to a prevailing party against

the United States unless the court makes certain ‘ind-

ings, and § 2412(b), which makes the United States

liable to a prevailing party “to the same extent that

any other party would be liable under the common law

or under the terms of any statute which specifically

provides for such an award.” Plaintiffs originally

sought only an award of fees pursaunt to § 2412(d)

(1)(A), and this Court has denied the application.

However, subsequent to the filing of the original ap-

plication, another judge of this Court ruled in a case

of first impression that plaintiffs were entitled to an

23a

award of fees under § 2412(b) in substantially simi-

lar circumstances even when, as here, the Court de-

nied such an award under § 2412(d)(1)(A). Laurit-

zen v. Secretary of the Navy, 546 F.Supp. 1221 (C.D.

Cal. 1982) (Tashima, J.), appeals pending, 9th Cir.

Nos. 82-6020, 6045. It therefore is appropriate to re-

consider the original application for fees under

§ 2412(b).

Dated: July 20, 1983

Respectfully submitted,

FREDERIC D, WOOCHER

LucAS GUTTENTAG

BILL LANN LEE

MARILYN 0, TESAURO

JOHN R, PHILLIPS

Center for Law in the

Public Interest

By /s/ Lucas Guttentag

LUAS GUTTENTAG

Attorneys for Plaintiffs

24a

CERTIFICATE OF SERVICE BY MAIL

I, Sharon Goldman, declare and say:

That I am a citizen of the United States, over the

age of eighteen years and not a party to the within-

entitled action; that I am employed in the office of an

attorney admitted to the Bar of this Court, and that

my business address is 10951 W. Pico Boulevard, Los

Angeles, California 90064;

That on July 20, 1983, I served the within NOTICE

OF MOTION AND MOTION TO ALTER AND

AMEND ORDER OF JULY 11, 19838 TO AWARD

REASONABLE ATTORNEYS’ FEES PURSUANT

TO 28 U.S.C. § 2412(b) upon counsel for all parties

herein by depositing a copy thereof, enclosed in a

sealed envelope with postage thereon fully prepaid,

in the United States Post Office mailbox at Los An-

geles, California, addressed as follows:

J. PAUL McGRATH, Assistant Attorney

General

STEPHEN S. TROTT, U.S. Attorney

STEPHEN D. PETERSEN, Ass’t U.S. Attorney

1100 United States Courthouse

312 North Spring Street

Los Angeles, CA 90012

PAUL BLANKENSTEIN

JUDITH LEDBETTER

Attorneys, Civil Division

Department of Justice, Rm. 3537

10th Street & Constitution Avenue, N.W.

Washington, D.C. 20530

25a

REX E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

Executed this 20th day of July, 1983 at Los An-

geles, California.

I declare under penalty of perjury that the fore-

going is true and correct.

/s/ Sharon Goldman

SHARON GOLDMAN

6. 6. eoveenwert reuerias orrica; 1963 417048 «83