*1 scrutiny case, judicial is available First Amendment protect al., Appellants, Anthony them et A. SMITH rights. attempting the abstract Without et al. E. WASHINGTON Walter classify standards

apply constitutional No. 76-1370. in which comprehensively those situations appropri- or be would would not Appeals, disclosure United Court States ate, clear record before I think Circuit. District Columbia contains admitted instances mistaken us 18, 1977. Argued Feb. requests reporter’s abusive where Aug. Decided might well have been found interest enough to foreclose or weighty be court to join with the I

limit disclosure. While hoping that such and AT&T

Government permanently abuses have

mistakes and

ceased, view the rec- we should not—in the lessons of recent this case and

ord all good to the faith of trust

years—so judicial ignore continuing need for vigorous

safeguards to ensure a free and point- has For as the

press. “History abun- out in a related context:

ed tendency of Govern-

dantly documents benign its benevolent

ment—however those who suspicion view with

motives—to dispute its United fervently policies.”

most District Court v. United States

States supra, 407

(Keith), press, performing its constitu-

2135. The functions, be may clearly

tionally protected

subject suspicion. to such appellants reaching the conclusion that safeguards, I do not judicial entitled to enjoy journalists generally

suggest Amendment freedoms than

greater First people’s right to know public. The journalist

primary. But the function informing the our is to assist in society high fairly. And

public honestly — Government, when calling is diminished intentioned, secretly jeopar-

however well journalists’ sources information

dizes the approval. prior judicial

without dissent. respectfully

lumbia, Risher, Jr., with whom John R. Counsel, Robbins, Corporation Louis P. Counsel, Principal Corp. Asst. John M. Clif- Gorman, Corp. ford and Leo Asst. Coun- N. C., sels, Washington, D. time the brief, filed, appellees. brief was were on BAZELON, Before McGOWAN and MacKINNON, Judges. Circuit Opinion for the filed BAZEL- ON, Judge. Circuit Concurring opinion filed MacKIN- NON, Judge. Circuit BAZELON, Judge: Circuit Appellants, prisoners in Jail, the D.C. filed this declaratory injunc- action for tive relief contesting the constitutionality of segregating alleged or confessed homo- sexuals in D.C. Jail without a hearing. The district court sustained defendant D.C. offi- cials’ motion to jurisdic- dismiss for lack of tion, holding prisoners’ that the claims did not satisfy amount in contro- versy of required under 28 U.S.C. 1331(a). reverse, We concluding prisoners had in fact sustained their burden of establishing amount. plaintiffs, The named at the time this filed, case was pre-trial detainee, were a prisoner awaiting sentencing, escapee an awaiting transportation to a facility federal and a prisoner. sentenced They sought to represent a class of all accused or confessed homosexual subject to D.C. Jail’s alleged policy segregating these individu- als without a hearing or other adequate procedural safeguards, solely on the basis of alleged plain- sexual orientation. The Catz, Robert Washington, C., S. D. with alleged tiffs consequences that several fol- McMillin, whom Richard Washington, S. D. low place the decision an homo- * * C., Ann F. Cohen and Robert Hays were sexual in segregation: administrative place- brief, on appellants. ment in an overcrowded and vermin infest- Barton, Richard W. Corp. Counsel, Asst. ed cell which is inferior occupied by to those C., Washington, D. for the general District of Co- both the population inmate * appearances pursu- Entered as student counsel Court. ant to Rule 20 of the General Rules of this under 28 requisite amount segregation for under administrative

those The Court reasons; 1331(a) (1976). there ineligibility for work detail U.S.C. § “good not be dis complaint accumulation of should (precluding both the held that requisite jurisdic shorten the time” which would for want of the missed to earn opportunity “to a appears confinement and amount unless tional *3 incarcerated); of access wages while denial plaintiff’s claim does not certainty” that the library; library law restricted assessing to the and $10,000.1 In whether a amount to treatment; rights; inferior medical visiting standard, that a complaint satisfies privileges variety of a of other and denial right may look “the value either to general population. to the inmate available prot to or to plaintiff that seeks enforce result, they claimed were As a or to the cost to the defendants to ect”2 1st, deprived secured the being of alleged denial.3 remedy the 4th, 5th, 6th 8th Amendments. and allegations, Plaintiffs’ the issue taking specific with Without in complained-of practices result a substan the officials allegations, the D.C. plaintiffs’ liberty their deprivation tial without ade action, asserting to dismiss the moved quate procedural safeguards, clearly are put to the was sufficient allegations none of to sufficient meet burden establish $10,000 controversy. hearing After in ar- ing requisite amount under the stan the dismiss, the Dis- gument on the motion to In dard in Hunt. v. enunciated Sullivan prisoners’ Court concluded that the trict 28, 50-1, U.S.App.D.C. Murphy, 156 478 to meet allegations failed burden denied, 938, 960-61, 880, cert. 414 F.2d U.S. establishing requisite amount and dis- 162, (1973), 94 38 L.Ed.2d 125 complaint, relying on our deci- missed S.Ct. Wilson, $10,000 U.S.App.D.C. requisite 155 was sion in Gomez v. found that the satis 242, (1973). plaintiffs’ F.2d even allegations 477 411 fied a of unlawful confinement. The short

II deprivations alleged liberty view may be sufficient establish Washington Ap v. Hunt State controversy has been echoed in amount in Commission, 333, 432 ple Advertising U.S. court4 and subsequent decisions has 2434, (1977), 97 53 383 L.Ed.2d S.Ct. Campbell expression recently v. set forth the standard for found 258, Magruder, U.S.App.D.C. 580 F.2d determining complaint for de 188 whether a (1978), substantially 521 where we affirmed claratory injunctive or relief satisfies the 2. 14 1. Hunt v. 3. Tatum v. justify dismissal.”) really 53 L.Ed.2d 383 mission, 473; 289, Wright, Miller 444 ing Practice Indemnity suits for S.Ct. Procedure; appear grounds, 408 U.S. Practice, injunctive Commission, 58 S.Ct. F.2d (1972); Wright, see Hunt v. for less than damages. 432 § supra, ¶ 0.91[1]; Washington Apple Co. v. Laird, 0.92[1] Jurisdiction Miller & 586, U.S. see actions the rule (1977). 951 & generally 82 L.Ed. 845 333, 346-348, Red Washington Apple 144 supra, Cooper, certainty See, at n.6 See Cooper, U.S.App.D.C. 855 Cab The Court thus § (1971) e. 432 3702 g., 1 Federal Practice & (2d 1 Co., Advertising Moore’s St. Paul Moore’s Wright Miller supra, (1938) long (1976). rev’d ed. 97 S.Ct. 303 at 33 L.Ed.2d 72, amount to applied 1976); U.S. § Advertis- (“It on other Mercury claim 347, Federal Federal 3708 at applied 76 2434, Com- must 283, n.6, 97 14 & F.2d Cooper, Courts 820-23 Columbia, See also E. violations) false has 880, fy Thus, U.S.App.D.C. F.2d Similar ^[83] Wilson, 1072 809, Murphy, g., found that some supra 938, (fifth imprisonment 94 § (Robinson, J.). Payne supra, 34 828-29 id. valuations were reached 165 S.Ct. 182 960-61 jurisdictional purposes, (3d at 95 and 182 156 U.S.App.D.C. U.S.App.D.C. v. Government 289, 293, ed. § eighth (1977) (Tamm, 162, U.S.App.D.C. Hartigh (fourth U.S.App.D.C. 3703; n.34, 1976). sufficed 38 L.Ed.2d 125 twelve amendment requirement. cert. and C. 485 F.2d Latin, 22, 34, 188, 207-08, fifth amendment Wright, denied, hours of J., of District 28, itself concurring). 199-202, violations). supra, this court 50-1, ^[1068] 506 F.2d Apton 414 U.S. to satis Sullivan Federal 478 559 158 at prisoners, judgment plaintiff publicly to other and are pretrial detainees branded 1331(a) in a suit for and in declaratory homosexuals, § opportunity as without an junctive challenging relief the overcrowded hearing procedural safeguards. unsanitary prevailing conditions allegations strikingly These similar to D.C. Jail.5 Rights those in Committee for GI v. Calla way, U.S.App.D.C. 518 F.2d allegations The plaintiffs’ in this case raise deprivation (1975), issues of unconstitutional where we the district sustained of liberty similar to those addressed in both 1331(a) jurisdiction court’s under con § Campbell, brought Sullivan and both under allegations Army’s drug sider 1331(a). a result of their As administra- plan prevention abuse was unconstitutiona homosexuals, tive segregation l.6 precluded assert they earning from District Court’s reliance on our The deci- “good through participation time” work *4 Wilson,supra, misplaced. sion in Gomez v. is details, deprived oppor- thus and are of an In we a Gomez noted that when defendant tunity the to shorten of their con- plaintiff’s controverts the assertion that the Further, plaintiffs finement. claim that jurisdictional amount, claim meets the “a they are confined overcrowded and un- emerges issue factual and the burden of sanitary conditions. Thus on this record it establishing jurisdictional amount is thrust legal certainty plain- is far from a that the upon U.S.App.D.C. claimant.” 155 at rights tiffs’ are worth less than —on (footnotes omitted). 477 F.2d at 420 contrary, the In our decisions establish that for jurisdictional however, allegations Gomez, purposes these we were concerned with a requisite alone establish the amount. allegation id., jurisdiction,” “formal of one simply which recites that the amount in allegations Plaintiffs’ other furnish addi- $10,000. exceeds Where the al- tional support concluding requi- for that the legation merely formal, is the record before site controversy present. amount in is Here the judge may district that be insufficient to allege they deprived of care, opportunities, medical recreational determine whether the plaintiff use has met the library library and law Here, facilities afforded of establishing jurisdiction. burden Campbell Magruder drug currently Army’s program 5. tiffs affected the is on remand satisfy to the district for 1331(a) jurisdictional a determination not does the § Facility whether New D.C.’s Detention has al- amount. prevail- leviated the unconstitutional conditions concluding The alternative basis for that Jail, ing in the old D.C. and for and clarification jurisdictional had satisfied the provisions further consideration certain Rights po- amount Committee for GI —the the district court’s order of November supports cost to tential the defendants —also a Campbell Magruder, U.S.App.D.C. finding of the amount here. 280, 288-290, 580 F.2d 521 at 551-553 Army The cost to the . would . . be the (1) stopping drug inspections cost of the en- tirely providing procedure a warrant Callaway, Rights In Committee GI inspections; (2) providing hearing prior a 73, 80, U.S.App.D.C. (1975) 518 F.2d imposition measures; of administrative we observed: (3) eliminating challenged aspects plaintiffs-appellees subject- All of the were drug program, e., poster regulation. i. drug inspections challenged ed to and the Considering prospective tangible poster addition, both regulation. In various ad- hearings intangible against cost of ministrative additional measures were taken plaintiff-appellees, including drug personnel named among with- cost abuse as the passes, suspension drawal of censes, agree li- ruling, drivers’ of an result adverse with the clothing, confiscation of civilian se- district court to the defendants cost urinalysis testing, public lective identifi- might $10,000. well exceed suspected drug cation as users. The consti- Id. plaintiff tutional issues raised are not sought by plaintiffs The relief in the instant frivolous. Given serious nature of the sought similar case is to that Committee for injuries alleged consequences and the Rights, GI and thus the conclusion warrants may the individual GI suffer as a result $10,000.” “might cost well exceed challenged drug program, say we cannot plain- the value of the of each of the complain they however, go Appellants are denied plaintiffs’ pleadings well be allegation and detail num yond formal rights because constitutional as various constitutional violations ber prisoners or pretrial “confessed homosexual past have found suffi which been homo [apparently detainees non-admitted jurisdiction. plain Thus cient sustain segre they administratively sexuals]” pre “clear cut pleadings contain the tiffs’ the Dis gated from other male Gomez, sentation,” required by which It seem hard of Columbia Jail. would trict it possible to determine that is not makes segre ly need for doubtful there plaintiffs’ claim is legally certain that from other gating “confessed homosexuals” $10,000. less Id.7 worth than fact, have prisoners. if the cases that Thus, on this we conclude that record criterion, reached this court are more ap it does not plaintiffs have shown provable result if the homo damage might certainty that their claim is pear to a But segregated. not there is sexuals were and, less than complaining room for the “accused . accordingly, complaint should be reins they proven homosexuals” that were not judgment of the district court tated.8 The seg homosexuals and should not have been is therefore regated proof reasonable thereof.1 absent jReversed.

Also, they segregated once are entitled to satisfactory conditions of confinement. MacKINNON, Judge, concurring: Circuit *5 allegations that some Since there are in this agree I with the result reached of confinement are unsatis their conditions solely ground the record case on factory their movement is other finding legal permit not to a certain does restricted, I $10,000 unreasonably concur in wise ty amount of 28 not Hunt 1331 was satisfied. v. § U.S.C. the remand. Advertising Com Washington Apple State specifically I refer disagree also with the 346, 2434, mission, 333, 97 53 432 U.S. S.Ct. U.S.App. Magruder, ence to 188 Campbell (1977); Mercury In L.Ed.2d 383 St. Paul 258, (1978), F.2d which is on D.C. 580 521 Co., 283, 303 demnity Co. v. Red Cab U.S. court, factu remand to the district since its

288-289, 586, (1938). 82 L.Ed. 845 al has no relevance to the issue here base deciding not so do conclude as presented. The multitudinous claims evidentiary proof have by hardly authority case serted in that any showing their claims “sustained” $10,000 of unlawful confinement as actually have a value or more. such a regard contro- Any suggestion eq- without to amount in for 7. in that claims Gomez subject versy. By virtue uitable relief are to a standard more amendment certainty” stringent “legal 1331(a), plaintiffs rights is than the test § are violated whose dispelled Supreme course Court’s deci- not establish the federal officials also need certainty applies sion Hunt that the test controversy amount in order obtain equally injunctive to suits for relief as well as forum for constitu- federal the vindication damages. rights. But under Court’s tional Carter, decision in District of Columbia 409 jurisdiction 8. Plaintiffs also seek to establish 418, 602, (1973), S.Ct. L.Ed.2d 1331(a) under recent amendment to § plaintiffs suing 1343(3) unavailable to D.C. § is eliminated which the amount against if D.C. officials do officials. Thus suits against requirement officials. suits federal 1331(a), fall to § not within amendment 94-574, Al- P.L. 90 Stat. § only suing be re- D.C. officials will though disposition of case makes it our this quired in con- to establish a minimum unnecessary officials decide whether D.C. troversy order to obtain a federal forum purpose federal officials redressing rights by violations of constitutional 1331(a), amendment § we note that official action. anomaly 1331(a) may an have created § jurisdiction places unique bur- federal which sign alleges not suing he did rights plaintiffs 1. of three offi- One den on District civil homosexuality. admitting 1343(3), plaintiffs He does the sheet cials. Under 28 U.S.C. he not a homosexual. are violated assert whose constitutional not sue in federal actions of state officials can was in this case satisfies the

jurisdictional prerequisite.

COMMUNITY-SERVICE BROADCAST- MID-AMERICA, INC.,

ING OF et

al., Petitioners,

FEDERAL COM- COMMUNICATIONS United

MISSION and States

America, Respondents. 76-1081.

No. Court Appeals,

United States

District of Columbia Circuit.

Argued Banc En Jan. 1978. Aug.

Decided Sept.

As Amended