National Broadcasting Company, Inc. v. Communications Workers of America, Afl-Cio , 860 F.2d 1022 ( 1988 )

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. HI, § 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 ease 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 injunc-tive 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____” Rl-1-5 at ¶ 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.

Rl-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. Rl-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,” Rl-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 facility].” Rl-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 facility and security is under the control of the lessee, CWA, and not the City,” Rl-1-3 at II8; and “[djefendant, in its sole discretion, determines which news gathering organizations will be credentialed and permitted access____” Rl-1-5 at ¶ 13.

The district court suggested that CWA’s actions constituted state action merely because CWA held its convention in a public building; we disagree. “Mere approval of or acquiescence in the initiatives of a private party is not sufficient....” Blum, 457 U.S. at 1004, 102 S.Ct. at 2785-86. See also San Francisco, — U.S. at -, 107 S.Ct. at 2986. Moreover, as the Fifth Circuit has held, “the sharing of space [by government and private actors] is not alone sufficient in this case.” Frazier v. Board of Trustees of Northwest Miss., 765 F.2d 1278, 1288 n. 21, modified on other grounds, 777 F.2d 329 (5th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2252, 90 L.Ed.2d 697 (1986) (discharged respiratory therapist not entitled to § 1983 relief because insufficient state action linked a county hospital to the therapist’s employer, a private corporation providing respiratory care at the hospital). Two cases binding on us have reached the same conclusion. See Golden v. Biscayne Bay Yacht Club, 530 F.2d 16 (5th Cir.), cert. denied, 429 U.S. 872, 97 S.Ct. 186, 50 L.Ed.2d 152 (1976) (no state action where private yacht club operated its docks on bay bottom land leased from the city for $1 per month); Greco v. Orange Memorial Hospital, 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975) (no state action where private hospital operated on land leased from the county).

Having explained in general terms why we cannot find state action in this case, we turn to a standard-by-standard explanation for our decision. We have discerned three primary tests used by the Supreme Court in evaluating state action: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test.⁵ The Court itself has queried “[wjhether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situa-tion____” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939, 102 S.Ct. 2744, 2754-55, 73 L.Ed.2d 482 (1982).

The public function test for state action has been limited strictly, and covers only private actors performing functions “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353, 95 S.Ct. at 454-55. See also Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2772. Selecting media stations to cover a speech has never been an exclusive function of the government, nor has constructing and renting space in which to conduct meetings. Consequently, this situation does not fit within the public function definition of state action.

The state compulsion test mirrors the Blum language which limits state action to instances in which the government has coerced or at least significantly encouraged the action alleged to violate the Constitution.⁶ See San Francisco, — U.S. at -, 107 S.Ct. at 2986; Blum, 457 U.S. at 1004, 102 S.Ct. at 2785-86. While the district court found that “the City of Miami Beach must have expressed its consent [to the exclusion of NBC] pursuant to the lease agreement,” Rl-8-6, that finding is unsubstantiated by any evidence in the record. As Golden and Greco illustrate, the mere existence of a lease cannot amount to coercion or significant encouragement sufficient to implicate the city in the decision made by CWA. NBC did not attempt to demonstrate that the city entered into the decision-making process which resulted in the decision to exclude NBC, and in fact the broadcasting company alleged the opposite in its complaint. We cannot conclude that the state compelled CWA’s action in this case.

Finally we address the question as to whether “the State had so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” Jackson, 419 U.S. at 357-58, 95 S.Ct. at 456-57. To charge a private party with state action under this standard, the governmental body and private party must be intertwined in a “symbiotic relationship.” Id. at 357, 95 S.Ct. at 456-57. Recently the Supreme Court has suggested that the symbiotic relationship must involve the alleged constitutional violation. San Francisco, — U.S. at - n. 29, 107 S.Ct. at 2986 n. 29.

NBC suggests that we rely on an early state action case, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In Burton a privately-owned restaurant operating in a state-owned and state-financed parking lot was enjoined from refusing to serve the plaintiff, a black man. The Court found that the restaurant and state enjoyed “an incidental variety of mutual benefits,” id. at 724, 81 S.Ct. at 861, and that “in view of [the restaurant’s] affirmative allegation that for it to serve Negroes would injure its business, ... profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.” Id.

As this court has explained in another case, “[a]bsent close scrutiny one might argue that Burton v. Wilmington Parking Authority controls the instant appeal.” Greco, 513 F.2d at 879. In Greco a physician sued a private hospital located on land leased from the county. The court explained that: “[t]he most obvious distinguishing factor is that Orange Memorial Hospital [unlike the restaurant in Burton ] is not accused of racial discrimination____ The concepts developed in this area, ... were necessarily broadly drawn in order to implement Congressional intent in circumstances of positive and frequent state obfuscation and delay.” Id. Furthermore, the court observed that: “[t]here is ... no indication, as there was in Burton v. Wilmington Parking Authority that the benefits accruing to the county were directly attributable to the objectionable activities of a joint venturer.” Id. at 880. The Gre-co court observed that in Burton the restaurant owner claimed that the discrimination increased profits and thus rental income for the state. Id. The Greco court also observed that no nexus connected the county to the challenged hospital policy. Id.⁷

All three major distinctions drawn by the Greco court apply here. The lease signed by the two parties is not to the contrary. First, the lease clearly relates, as its title states, to city control over “Sale of Concessions.” A fair reading of the lease leads to the conclusion that the city was attempting to control the money received from broadcasting rights, not the choice of whether to broadcast or of the networks to be allowed to broadcast. If the parties had had a different understanding of the allocation of decision-making responsibility, the contract indicates that the city would have had to give its approval in writing. NBC does not claim the city gave such approval, and does not attempt to produce the city’s written permission allowing the exclusion of NBC.⁸ Secondly, even if the city had approved the exclusion, “[m]ere approval ... or acquiescence,” Blum, 457 U.S. at 1004, 102 S.Ct. at 2785-86, is insufficient to constitute state action.

While Jackson mentioned in dictum that the holding of Burton should be limited “to lessees of public property,” Jackson, 419 U.S. at 358, 95 S.Ct. at 457, Burton itself refused to extend its holding even to all lessees of public property:

Because readily applicable formulae may not be fashioned, the conclusions drawn from the facts and circumstances of this record are by no means declared as universal truths on the basis of which every state leasing agreement is to be tested. Owing to the very “largeness” of government, a multitude of relationships might appear to some to fall within the Amendment’s embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present.

Burton, 365 U.S. at 725-26, 81 S.Ct. at 861-62. The factual circumstances of this case will not support the same conclusion reached in Burton. We see no nexus or joint action sufficient to constitute state action.

Because we find no state action we cannot use the First Amendment to invalidate CWA’s choice to exclude NBC. Thus, we need not address the question of whether NBC’s First Amendment rights would have been violated had it been the sole network excluded on July 30, 1987.

The decision of the district court is

REVERSED.

1 . Given this circuit’s decision in In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294 (11th Cir.1984), we are dubious as to whether plaintiff could have prevailed in arguing that a failed attempt to obtain a stay constitutes “all steps necessary to perfect the appeal.” B & B, 806 F.2d at 990.

2 . The Supreme Court has acknowledged that labor conflicts are the sort of disagreements likely to be repeated in the future. See, e.g., Buffalo Forge Co. v. U. Steelworkers of America, AFL-CIO, 428 U.S. 397, 403 & n. 8, 96 S.Ct. 3141, 3145-46 & n. 8, 49 L.Ed.2d 1022 (1976). See also, Jacksonville, Etc. v. Intern. Longshoremen’s Ass’n, 457 U.S. 702, 704 n. 1, 102 S.Ct. 2672, 2676 n. 1, 73 L.Ed.2d 327 (1982) (live controversy remained even when union complied with order to load cargo, since union might resume its work stoppage as to other cargo); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3533.3 at 287 (1984) ("labor disputes ... provide clear illustration of the private disputes that are preserved from mootness by the prospect of future repetition”).

3 . NBC errs in suggesting that we must accept the district court’s interpretation of the lease. We interpret the language " ‘afresh’ as a matter of law.” Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1518 (11th Cir.1985). See also Chapman v. Orange Rice Mill. Co., 747 F.2d 981, 983 (5th Cir.1984).

4 . As the Fifth Circuit has explained: "[i]f a thread of commonality is to be drawn from the various forms in which state action can manifest itself through the conduct of private parties, it is that attribution is not fair when bottomed solely on a generalized relation with the state. Rather, private conduct is fairly attributable only when the state has had some affirmative role, albeit one of encouragement short of compulsion, in the particular conduct underlying a claimant’s civil rights grievance.” Frazier v. Board of Trustees of Northwest Miss., 765 F.2d 1278, 1286, modified on other grounds, 777 F.2d 329 (5th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2252, 90 L.Ed.2d 697 (1986).

While specifically the Blum court spoke of holding the state liable pursuant to state action doctrine, the standard remains constant when a party seeks to hold a private actor liable under the state action doctrine. In San Francbco, for example, the Court cited and applied the Blum language even though the suit at issue was directed against a private corporation, the United States Olympic Committee. San Francisco, — U.S. at -, -, 107 S.Ct. at 2984, 2986. In fact, Blum supported its holding by citing a case called Jackson, 419 U.S. at 357, 95 S.Ct. at 456-57, in which a customer sued a privately-owned utility.

5 . Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939, 102 S.Ct. 2744, 2754-55, 73 L.Ed.2d 482 (1982) separated the nexus and joint action tests, but a more recent Supreme Court case has merged the two. See Francisco, — U.S. at - n. 29, 107 S.Ct. at 2986 n. 29. See also Jackson, 419 U.S. at 357-58, 95 S.Ct. at 456-57.

Lugar suggests that courts preface the inquiry into the standards we mention by asking whether the complaining party has suffered a "deprivation ... caused by the exercise of some right or privilege created by the State.... ” Id. at 937, 102 S.Ct. at 2753. Arguably NBC suffered no such state-driven deprivation because CWA’s right to meet was not created by the city, and in fact could have been exercised in a private building. We question whether Lugar’s initial test still exists, however, in light of the fact that recent Supreme Court cases have not mentioned or used it. We need not address the issue as we decide that the circumstances of this case do not meet any of the subsequent tests for state action.

The Court has rejected the use of several other factors as litmus tests for state action: state regulation, even if it is extensive, Jackson, 419 U.S. at 350, 95 S.Ct. at 453; receipt of public funds, Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S.Ct. 2764, 2770-71, 73 L.Ed.2d 418 (1982); Congressional grant of a corporate charter, San Francisco, — U.S. at -, 107 S.Ct. at 2985; and, conferral of enforceable trademark rights. Id. These factors cannot mandate any decision, and NBC has not argued that any of the four should influence our evaluation of the state action question in this case.

6 . The test has been used both separately and as an encompassing description of the state action standard itself. See, e.g., Blum, 457 U.S. at 1004, 102 S.Ct. at 2785-86. San Francisco, - U.S. at -, 107 S.Ct. at 2986. We use the test in both its contexts in this case.

7 . Greco also distinguished Burton on the grounds that in Burton the state was charged with providing maintenance and utilities for the restaurant; in Greco, the hospital lacked a day-to-day physical relationship with the county. Greco, 513 F.2d at 880. Secondly, the Greco court noted that the county had "retained no power to amend,” id. at 881, the hospital policy being challenged.

Applying the first factor to this case is difficult: because any other arrangement would be impracticable, both public and private lessors typically perform maintenance and provide utility services for premises leased for only short-term periods. The day-to-day choices as to how to run the CWA convention were left to CWA, however. NBC alleged that the decision to admit particular news agencies was made by "[djefendant, in its sole discretion.” Rl-1-5 at ¶ 13. We conclude that this factor is virtually irrelevant in the context of this case, but that on balance it militates against a finding of state action.

As to the second factor, our reading of the contract illustrates that the City of Miami Beach did not reserve the right to control CWA’s fundamental decisions as to broadcasting and broadcasters.

8 . Essentially NBC demands that we read the contract as an agreement that the city could have forced CWA to televise nationally its private meeting or to forego coverage of events for which CWA wanted media attention. That unlikely reading contradicts the clear intention of the provision. Moreover, in this case the city never exercised the power NBC claims it reserved; the city, therefore, did not coerce or significantly encourage CWA’s decision.