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07/22/77 the Network Project, Et Al v. Corporation For Public

July 22, 1977





Appeal from the United States District Court for the District of Columbia (Civil Action No. 1059-73).


Robinson and Wilkey, Circuit Judges, and William J. Jameson,* United States Senior District Judge for the District of Montana. Opinion for the Court filed by Circuit Judge Robinson.


Appellants are numerous viewers of public television (viewer-appellants) *fn1 and three individuals who have written, directed and produced public television programs (producer-appellants). *fn2 Appellees are the Corporation for Public Broadcasting , established pursuant to congressional authorization as a conduit of federal funds for public television, and the Public Broadcasting Service , created by CPB to distribute public television programs to local stations, together with Clay T. Whitehead, who as a former presidential aide, was Director of the Office of Telecommunications Policy. The appeal emanates from a judgment of the District Court dismissing an action precipitated by activities allegedly violative of rights secured by statute and the Constitution. *fn3

In their complaint, appellants charge that appellees have censored and controlled the content of public television in contravention of the First Amendment *fn4 and legislation known as the Public Broadcasting Act. *fn5 Specifically, 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 programs, have required program changes prior to distribution, and have issued warnings to local stations about programs considered by them to be controversial. Whitehead and Patrick J. Buchanan, another former presidential aide once a party, *fn6 are accused of attempts to cause CPB and PBS to remove all controversial programs from the air.

Viewer-appellants seek declaratory and injunctive relief prohibiting appellees from interfering with their asserted right to see uncensored public television programs. Producer-appellants demand damages for injury to their professional reputations and their ability to market their work products allegedly resulting from censorship of programs written, directed or produced by them. The District Court first dismissed the suit against the individual defendants as moot. *fn7 The court then held that appellants had failed to state a claim under the Public Broadcasting Act upon which relief could be granted. *fn8 Lastly, it dismissed the First Amendment contentions of viewer-appellants for lack of jurisdiction *fn9 and those of producer-appellants for lack of substantive merit. *fn10 We reverse the disposition of the First Amendment claims as to both viewer- and producer-appellants. In all other respects, we affirm. I

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 commencement of suit. *fn11 Appellants pursue this appeal only against Whitehead, formerly the Director of the Office of Telecommunications Policy. *fn12 They argue that they should now be allowed to proceed against Whitehead's successor.

While Federal Civil Rule 25(d)(1) provides for automatic substitution of a successor, *fn13 and eliminates the requirement that the plaintiff demonstrate need for continuing the action upon substitution, *fn14 it will not keep alive an otherwise moot controversy. This principle was firmly established by the Supreme Court's decision in Spomer v. Littleton. *fn15 There, residents of Cairo, Illinois, filed suit against Peyton Berbling, State's Attorney for Alexander County, charging him with a variety of racially discriminatory law enforcement practices. After the Seventh Circuit announced its decision on appeal, Spomer was elected to succeed Berbling. Relying on Supreme Court Rule 48(3),16 Spomer then petitioned for certiorari to challenge the Court of Appeal's approval of the possibility of injunctive relief against the State's Attorney. The plaintiffs did not oppose this substitution, and the Supreme Court granted the writ.

After plenary review, however, the Court found nothing in the record upon which to base a conclusion that a concrete controversy between the residents of Cairo and the State's Attorney still existed.17 Of primary importance here, the Court emphasized that "the 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,"18 and that "no charge is made in the complaint that the policy of the office of State's Attorney is to follow the intentional practices alleged . . . ."19 The Court further noted that the plaintiffs made no allegation that Spomer intended to continue the practices of which they complained.20

At oral argument, counsel for the State's Attorney had indicated that Spomer did not intend to deviate from the practices of his predecessor.21 The Court, however, held that "to determine whether respondents have a live controversy, . . . we must look to the charges they press."22 Having found that there was a strong possibility of mootness, the Court remanded the case for a determination as to whether it was moot and whether the plaintiffs desired, and should be permitted, to amend their complaint to include claims for relief against Spomer.23

The similarities between Spomer and the instant case are obvious and for appellants insurmountable. Here, as in Spomer, the wrongful conduct charged is personal to the named defendant, despite his having been sued in his official capacity.24 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,25 then, we are unable to say that a live controversy now subsists between appellants and the Director of the Office of Telecommunications. Accordingly, we affirm the District Court's dismissal of the suit in that regard. II

Next to be considered is whether the District Court possessed jurisdiction of appellants' statutory and constitutional claims. Jurisdiction was invoked on three separate grounds, all of which were deemed unacceptable. The court declined to exercise federal-question jurisdiction under 28 U.S.C. § 1331,26 holding that appellants had failed to establish that the requisite $10,000 was in controversy.27 The court also held that jurisdiction could not be predicated upon 28 U.S.C. § 1361.28 That provision, which imparts jurisdiction over suits "to compel . . . any agency . . . to perform a duty owed to the plaintiff,"29 was held inapplicable on the ground that CPB is not an agency, and CPB's directors are not officers, within its contemplation.30 Finally, without deciding whether it had jurisdiction under 28 U.S.C. § 1337,31 the court held that no right of action could be implied from the Public Broadcasting Act of 1967 and dismissed appellants' ...

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