FEDERAL COMMUNICATIONS COMMISSION, APPELLANT V. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL. No. 83-651 In the Supreme Court of the United States October Term, 1983 On Appeal from the United States District Court for the Central District of California Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the Pafifica Foundation and Henry Waxman were party plaintiffs in the district court. TABLE OF CONTENTS Opinions below Jurisdiction Statement The question is substantial Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the district court on the constitutional question (82-912 J.S. App. 1a-20a) is reported at 547 F. Supp. 379. The order denying attorneys' fees (App. C, infra, 6a-18a) and the order denying appelles' motion to alter or amend that order (App. A, infra, 1a-3a) are unreported. JURISDICTION The judgment of the district court (App. A, infra, 1a-3a) was entered on August 25, 1983. The notice of appeal (App. E, infra, 19a-20a) was filed on September 6, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. QUESTION PRESENTED Whether 47 U.S.C. 399, which prohibits "editorializing" by noncommercial educational broadcasting stations that receive grants from the Corporation for Public Broadcasting, violates the First Amendment. STATEMENT 1. On August 5, 1982, the district court issued a judgment in this case that (1) declared unconstitutional the provision of 47 U.S.C. (Supp. V) 399 prohibiting editorializing by certain public broadcasting stations, (2) enjoined the Federal Communications Commission and others from enforcing that provision, and (3) 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. Section 2412" (82-912 Mot. to Dis. App. 3a-4a). Appellees opposed this motion. On September 3, 1982, the Commission 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 * * * is a 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 attorney fees is stricken from the judgment. Plaintiffs' 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 argued 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 motion regarding attorneys' fees was a "motion for reconsideration" that "suspended the finality of the District Court's judgment" and terminated the running 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 consequently of no effect (see Griggs v. Provident Consumer 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 after November 1, appellees maintained (Mot. to Dis. 12-13) that appellate jurisdiction was lacking. On February 28, 1983, this Court postponed further 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 attorneys' fees (App. C, infra, 6a-17a). Nine days thereafter 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 August 25, 1983, the district court entered an order denying that motion (App. A, infra, 1a-3a). On September 6, 1983, the Federal Communication Commission filed notice of appeal to this Court (App. E, infra, 19a-20a). THE QUESTION IS SUBSTANTIAL The purpose of this appeal is to ensure that the important question presented by the district court's decision 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 before the Court in No. 82-912 and has been fully briefed. However, the Court also has before it appellees' motion to dismiss that appeal on the ground that the notice of appeal was not timely filed. As previously 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 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; Reply Memorandum 2-8). But if appellees are correct, it must follow that the finality of the district court order holding Section 399 unconstitutional remained suspended until that court settled the question of attorneys' fees with its order of August 25, 1983, denying 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. /1/ We have consequently 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 appellant 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). /2/ See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 742 (1976). /3/ In sum, our position continues to be that the important question on the merits -- the constitutional validity of Section 399 -- is properly before the Court in No. 82-912, which was correctly noticed and docketed as an "appeal * * * from an interlocutory or final judgment, decree or order" -- that is, the decision 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 appeal becomes the proper case for the consideration of that question. In order to avoid procedural complications, we respectfully 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 jurisdiction in that appeal, the government will move to 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 jurisdiction 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 identical constitutional issue -- be deemed the relevant submissions 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 /1/ As appellees themselves have argued (see 82-912 Mot. to Dis. 11-12), a timely Rule 59(e) motion suspends the finality 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) 399 unconstitutional (see 82-912 Appellant's Reply Memorandum 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. /2/ Our understanding of the matter -- that the judgment with respect to the merits was entered on August 6, 1982, and that the November 1, 1982 entry simply set the collateral attorneys' fees question for argument -- is quite clearly shared by the district court in this case. In its final order of August 25, 1983, disposing of the attorneys' fees issue, that court stated: "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. Section 2412(d)(1)(A). As indicated above (on July 11, 1983) the Court denied that application." App. A, infra, 1a. /3/ 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. Appendix Omitted