National Broadcasting Co., Inc. v. Communications Workers of America, AFL-CIO

• Decision Date: 28 November 1988
• Docket Number: AFL-CI,D,No. 87-5658,87-5658
• Parties: 130 L.R.R.M. (BNA) 2102, 110 Lab.Cas. P 10,923, 16 Media L. Rep. 1356 NATIONAL BROADCASTING COMPANY, INC., Plaintiff-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA,efendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1022

860 F.2d 1022

130 L.R.R.M. (BNA) 2102, 110 Lab.Cas. P 10,923,

16 Media L. Rep. 1356

NATIONAL BROADCASTING COMPANY, INC., Plaintiff-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Defendant-Appellant.

No. 87-5658.

United States Court of Appeals, Eleventh Circuit.

Nov. 28, 1988.

James B. Coppess, Adair, Scanlon & McHugh, P.C., Washington, D.C., Atlanta, Ga., for defendant-appellant.

Averill G. Marcus, Manas & Marcus, P.A., Miami, Fla., Floyd Abrams, Cahill, Gordon & Reindel, New York City, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and WARD ^*, District Judge.

HILL, Circuit Judge:

From July 23 to August 1, 1987, the Communications Workers of America, AFL-CIO (CWA) leased the Miami Beach Convention Center for an annual convention. Several candidates for President of the United States were slated to speak at the convention on July 28 or July 30.

At the time the company convention was being held, employees of National Broadcasting Company, Inc., (NBC) who were represented by the National Association of Broadcast Employees and Technicians, AFL-CIO, struck against NBC. While CWA admitted various members of the press, in solidarity with the striking NBC employees CWA refused to grant NBC access to the July 28 speeches.

On July 29 NBC filed suit to enjoin CWA from excluding it from meetings to which other media organizations were admitted. That same day the district court entered a temporary restraining order (TRO) against CWA; the district court denied a motion for a stay, and this court denied a motion for a stay of the TRO pending appeal to this court. CWA chose to comply with the order by excluding all news media from the July 30 meetings.

I. MOOTNESS

NBC insists that CWA's appeal is now moot. If the appeal is moot, this court lacks jurisdiction to decide the case because it fails to meet the case or controversy requirement set forth in U.S. Const. art. III, Sec. 2.

Because the convention has ended and the TRO has expired, we must find the case moot unless it falls within one of the exceptions to the mootness doctrine. Courts have agreed to hear otherwise moot cases in three instances: (1) "where the issues are capable of repetition, yet evading review"; (2) "where an appellant has taken all steps necessary to perfect the appeal and to preserve the status quo before the dispute becomes moot"; and (3) "where the trial court's order will have possible collateral legal consequences." B & B Chemical Co. v. United States E.P.A., 806 F.2d 987, 990 (11th Cir.1986).

CWA does not contend that this case ought to fall within the third exception. Because we find that the present appeal falls within the first exception, we need not address the arguments presented by the parties as to the second. ¹

In the absence of a class action, a case may be considered within the "capable of repetition, yet evading review" exception only where: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975). As even NBC appears to concede, this case falls within the first half of the standard: the issue cannot be fully litigated in the time between the exclusion of NBC and the occurrence of the "newsworthy" event. In a case binding on this court, the Fifth Circuit suggested that economic strikes of the type present in that case will "rarely last long enough to permit complete judicial review of the controversies they engender." United Steelworkers of America, AFL-CIO v. Bishop, 598 F.2d 408, 412 (5th Cir.1979). While the facts available on appeal do not specify whether the strike was an economic one, the combination of time limits inherent in the strike, convention, and newsworthy event formulate a preclusively accelerated time schedule.

NBC maintains that while this appeal may evade review, it is not capable of repetition. We disagree. The Supreme Court has explained that the standard may be met by controversies "based on expectations that, while reasonable, were hardly demonstrably probable." Honig v. Doe and Smith, --- U.S. ----, ---- n. 6, 108 S.Ct. 592, 601 n. 6, 98 L.Ed.2d 686 (1988). CWA holds a convention each year, and holds other meetings throughout the year. Because of CWA's size, we expect the union often will be forced to conduct its meetings in public facilities; because of its size and political interests, we anticipate that the union will frequently attract speakers of public note. Periodically NBC will renegotiate agreements with various unions. It is reasonable to expect that at some point in the future turbulent renegotiations will coincide with a CWA meeting featuring speakers of public import. ² As NBC illustrated with the opinions it attached to its brief in this court, NBC has sought emergency injunctive relief in similar situations in the past, and we can expect the network to do the same in the future.

We believe it would be contrary to Supreme Court precedent to dismiss this case merely because CWA complied with an injunction which has now expired. See, e.g., United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (due to "capable of repetition, yet evading review" exception, case was not moot even though telephone company had complied with court order to provide FBI with leased lines, and even though district court order had since expired); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (although district court gag order had expired by its own terms, and Nebraska Press Association had not violated the order, Court found the case fit within the "capable of repetition, yet evading review" exception to the mootness doctrine); Carroll v. President & Com'rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (particularly in light of fact that courts should encourage compliance with court orders, controversy held not moot even though political group appealed restraining order that had expired, and even though political group had not held rally in violation of the injunctive order). The Carroll Court found it could "not say that [the political group's] case is moot," Carroll, 393 U.S. at 179, 89 S.Ct. at 350, given that it had earlier held that "[t]he proper procedure ... was to seek judicial review of the injunction and not to disobey it, no matter how well-founded [the group's] doubts might be as to its validity." Id.

Consequently, we find this appeal not moot because the issue presented is capable of repetition, yet evades review.

II. THE STATE ACTION QUESTION

NBC claims that CWA denied NBC's "First Amendment rights to free speech and free press and Plaintiff's Fifth Amendment rights to equal privileges/protection and due process...." R1-1-5 at p 16. The Fourteenth Amendment, and, through it, the First and Fifth Amendments, do not apply to private parties unless those parties are engaged in activity deemed to be "state action." Jackson v. Metropolitan Edison Company, 419 U.S. 345, 349, 95 S.Ct. 449, 452-53, 42 L.Ed.2d 477 (1974). The district court concluded that CWA engaged in state action when it excluded NBC from the convention.

The district court based its decision in part on a provision in the lease agreement between CWA and the city. The lease agreement contained a paragraph stipulating:

13) Sale of Concessions: Lessor reserves, and at all times shall have the sole right to sell or give away librettos, flowers, refreshments, beverages, cigars, cigarettes, candies, sandwiches, sundries, programs and periodicals and to rent and sell opera glasses, umbrellas and other articles, to conduct check rooms, to control event programs and to supervise the contents thereof, to take photographs, to control or supervise radio, movie and/or television broadcasting or recording and transcription rights and equipment, and other privileges, and Lessee shall not engage in or undertake the sale of any of the aforesaid articles or privileges, without the express written consent of Lessor.

R1-11 (emphasis in original). The court concluded that the contract provision provided a "degree of control and supervision" which "meets both the nexus test and the joint action test" used to establish state action. R1-8-6. ³ The court's final order explained that "the City of Miami Beach must have expressed its consent pursuant to the lease agreement," R1-8-6, when CWA excluded NBC. The district court additionally grounded its finding of state action on its determination that the convention center was a "public facilit[y]." R1-8-6.

We disagree with the district court's finding that the exclusion of NBC constituted state action. The Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). The Supreme Court has offered several criteria to be used in sorting private from state conduct. In reviewing the different standards, the Court has explained: "[m]ost fundamentally, this Court has held that a government 'normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].' " San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, --- U.S. ----, ----, 107 S.Ct. 2971, 2986, 97 L.Ed.2d 427 (1987), citing Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982). ⁴

In this case the City of Miami Beach neither encouraged nor coerced the exclusion of NBC. In fact, NBC's complaint admitted: "under a lease ... control over access to the...