Certification under 28 U.S.C. § 1292(b) of interlocutory appeal on issue of "state action" of airlines using Port Authority terminal space and prohibiting practice of "sankirtan" vacated as improvidently granted.
Feinberg, Chief Judge, Oakes, Circuit Judge, and Leval, District Judge.*fn*
This is an interlocutory appeal from an order of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, denying defendants-appellants' motion to dismiss appellees' civil rights action for lack of subject matter jurisdiction. The thorny question presented for review was whether plaintiffs-appellees met their burden of showing that the appellant airlines' prohibition of appellees' solicitation activities in the leased areas of the three New York City vicinity airports was "under color of state law" within 28 U.S.C. § 1343(3) (Supp. V 1981) and 42 U.S.C. § 1983 (Supp. V 1981), so as to constitute "state action" within the complex of criteria elucidated and elaborated in the array of cases including Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961). See generally 2 T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States 407-43 (4th ed. 1979); L. Tribe, American Constitutional Law 1147-74 (1978).
In 1975, the International Society for Krishna Consciousness, Inc. ("ISKCON"), and Brian Rumbaugh, a Krishna devotee, filed this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief establishing ISKCON's right to engage in certain conduct*fn1 in the airport terminal areas of the three New York City area airports. The areas in question are leased by the defendant airlines from the Port Authority of New York and New Jersey ("the Port Authority"), the bi-state agency which in turn leases the airports from the two cities that own the sites. At the heart of appellees' suit is the contention that the airlines' conduct violated the First and Fourteenth Amendment rights of ISKCON's members. The airlines contend, among other things, that they are purely private actors, and hence cannot violate rights which are secured only against the state. The lack of state action, they argue, defeats federal subject matter jurisdiction over this case.
On July 21, 1982, Judge Lowe denied appellants' motion to dismiss the action for lack of subject matter jurisdiction. In response to the airlines' argument that permission to conduct any activity in the areas they lease is subject entirely to the control of the private tenants, i.e., the airlines, and not the state landlord, and hence that there is no state action, Judge Lowe held that (1) the leased areas "are properly deemed public fora," and that "the mere leasing of airport space to private carriers does not alter the First Amendment character of that property," questions which are not certified to us; and (2) that under Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), the Port Authority's and the airlines' "symbiotic relation" is sufficient to render the airlines' decisions state action.
While clearly not a "final decision" within 28 U.S.C. § 1291 (1976), appeal from Judge Lowe's order was taken to this court pursuant to 28 U.S.C. § 1292(b) (1976). Section 1292(b), of course, allows appellate court review of an otherwise unappealable district court order if such order, in the opinion of the district judge and the court of appeals, "involves a controlling question of law as to which there is substantial ground for difference of opinion" and if "an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . ."
There is no doubt that the question of the meaning and scope of "state action" presents a serious and substantial issue. The problem of divining how, where, when, and why seemingly private actors are to be held responsible as acting under color of state law, 42 U.S.C. § 1983, is critical not only to resolution of this case, but also to other litigation involving similar or analogous claims. The state action question is also basic to a thorough understanding of the role of law in the contemporary democratic state, and the delicate balance it seeks to establish between preserving an area of individual freedom by limiting the reach of federal law, Lugar v. Edmondson Oil Co., 457 U.S. at 936, and ensuring that there is no "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . ." Id. at 929, quoting United States v. Classic, 313 U.S. 299, 326, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941). As one commentator has pointed out:
Constitutional rights define the characteristics of unconstitutional state action. To the extent that such rights impose restraints on governmental rules and not on governmental actors per se, the state action inquiry must initially focus on the task of identifying the governmental rule implicated in a particular case, and not on the task of determining whether or not a particular actor is a governmental actor. Indeed, the constitutional right which a litigant invokes structures the state action inquiry even more specifically:
By defining the elements of an individual's substantive claim, a right necessarily identifies the features of a government rule which would render the rule unconstitutional. The state action inquiry, therefore, is a search not simply for a government rule, but for a government rule possessing the forbidden characteristics identified by the particular right the litigant invokes.
L. Tribe, American Constitutional Law 1159 (emphasis in original).
Thus the complex of issues involved is often as puzzling as it is important. For this reason the Supreme Court, in a frequently quoted passage, has explained how fact-intensive each inquiry into the question of the presence of state action becomes: "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. at 722. As we put it in Graseck v. Mauceri, 582 F.2d 203, 204 (2d Cir. 1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1048, 59 L. Ed. 2d 91 (1979), the question "whether conduct of a fundamentally private institution . . . constitutes 'state action,' [is] one of the more slippery and troublesome areas of civil rights litigation."
We are here faced with a rather general, indeed an abstract, inquiry as to whether private airlines which lease airport space from a state agency are to be deemed state actors for purposes of a section 1983 suit, irrespective of the precise content of the rule they seek to enforce and of its effect on plaintiffs and others. For the reasons suggested in this opinion, we believe that permission for this interlocutory appeal was improvidently granted, and we decline to decide the issues presented. Instead, we remand for further action of the district court. In so doing, we express neither approval nor disapproval of Judge Lowe's order, except to the extent that it has itself taken an abstract position without the searching inquiry suggested in the passage from Tribe quoted above.
In Slade v. Shearson, Hammill & Co., 517 F.2d 398 (2d Cir. 1974), we dismissed as improvidently granted a previously "certified" section 1292(b) interlocutory appeal. In that case, which involved the use of nonpublic information by an investment banker/securities broker, we recognized that the question presented was "intriguing" and had "tremendous implications" for both the industry and the public. Id. at 399-400. Nonetheless, because there were a number of unresolved factual issues bearing on the framing and formulation of the legal questions, we noted that "to answer the legal questions presented would require an exposition sufficiently broad to cover the various factual ramifications that may occur," and we declined to provide such a sweeping statement. Id. at 402. In other words, what we had in Slade was not one legal question, "but a complexity of interlocking questions," id. at 403, leading us to conclude that:
It would be the height of judicial folly, we think, to attempt on an indeterminate factual record to make an abstract exposition that would adequately cover the various contexts and reach the proper overall results, however desirable this might be for the guidance of the business or however judicially challenging such an exposition might be. It is altogether possible that some of the questions may not be reached for some time to come or may follow from previous case by case determinations. It may well be that some of the solutions to the questions asked may be reached in entirely different decision making bodies than the courts. Meanwhile, fully appreciating the importance of this court's decisions to the world of ...