Full opinion text
MEMORANDUM OPINION FERGUSON, District Judge. INTRODUCTION More than half a century ago, Secretary of Commerce Herbert Hoover warned that, “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public, nor do I believe that the government should ever be placed in a position of censoring this material.” The plaintiffs in this case have exposed a joint agreement on the part of the three major television networks, the Federal Communications Commission (“FCC”), and the National Association of Broadcasters (“NAB”) to permit one group — the NAB Television Code Review Board — to act as a national board of censors for American television. The plaintiffs have evidenced a successful attempt by the FCC to pressure the networks and the NAB into adopting a programming policy they did not wish to adopt. The plaintiffs have proven that the FCC formulated and imposed new industry policy without giving the public its right to notice and its right to be heard. The policy involved is well known. It has been called the “family hour,” the “family viewing policy,” the “9:00 rule,” even the “prime time censorship rule.” Specifically, the policy is that “Entertainment programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately preceding hour. In the occasional case when an entertainment program is deemed to be inappropriate for such an audience, advisories should be used to alert viewers.” NAB, The Television Code 2-3 (18 ed. June, 1975). Two different lawsuits have been filed to contest the means by which this policy was promoted by the FCC and adopted by the networks and the NAB. The defendants are the same in both cases: (1) The Federal Communications Commission and Commissioners Wiley, Hookes, Lee, Quello, Reid, Robinson and Washburn [the “government defendants”]; (2) American Broadcasting Companies, Inc. (“ABC”), CBS, Inc. (“CBS”), National Broadcasting Company, Inc. (“NBC"), and the National Association of Broadcasters [the “private defendants”]. The plaintiffs in CV 75-3641-F include the Writers Guild of America, West, Inc., Writers Guild of America, East, Inc., Directors Guild of America, Inc., Screen Actors Guild, Inc., Concept Plus II Productions, Four D Productions, Danny Arnold, Allan Burns, Samuel Denoff, Larry Gelbart, Susan Harris, Norman Lear, William Persby, Paul Witt, and Edwin Weinberger (hereinafter “Writers Guild”). The plaintiff in CV 75-3710-F is Tandem Productions, Inc. (“Tandem”). Most of the plaintiffs are creators, writers, and producers for television programming. The shows in which they are involved include “All In The Family,” “Phyllis,” “The Mary Tyler Moore Show,” “Barney Miller," “M*A*S*H,” and “Fay.” The Writers Guild plaintiffs charge the government defendants with violations of the First Amendment, section 326 of the Federal Communications Act of 1934, and of the Administrative Procedure Act (“APA”). All of the Writers Guild plaintiffs allege that the private defendants have violated the First Amendment; all but Lear charge the defendants with a violation of the Sherman Antitrust Act. Tandem, the producer of “All In The Family,” charges the defendants with the same violations except that it does not include an Administrative Procedure Act count. All plaintiffs seek declaratory relief, injunctive relief, and attorneys’ fees. Tandem asks for damages as well. Much of the energy associated with this case has been generated because the plaintiffs and defendants disagree about the wisdom of the family viewing policy. In the last analysis, however, this is not the family hour case. The desirability or undesirability of the family viewing policy is not the issue. Rather the question is who should have the right to decide what shall and shall not be broadcast and how and on what basis should these decisions be made. This court will not evaluate the family viewing policy except to say that individual broadcast licensees have the right and the duty to exercise independent judgment in deciding whether or not to follow that policy. This court has no authority to declare an end to the family hour. At the same time, however, neither the FCC nor the NAB has the right to compromise the independent judgments of individual station owner licensees. The court will formulate remedies designed to let those with the right and the duty to make programming decisions make them without improper interference from government or other broadcasters. If the family hour continues, it should continue because broadcasters in their independent judgment decide that it is desirable policy, not because of government pressure or NAB regulation. If government intervenes in the future to control entertainment programming on television, it shall do so not in closed-door negotiating sessions but in conformity with legislatively mandated administrative procedures. If the government has any power to regulate such programming, it must be exercised by formal regulation supported by an appropriate administrative record, not by informal pressure accompanied by self-serving and unconvincing denials of responsibility. In short, the family hour may or may not be desirable. Censorship by government or privately created review boards cannot be tolerated. The legal and factual issues raised by this case and discussed in this opinion are numerous and complicated. Section I of this opinion deals in detail with motions to dismiss which were made by the defendants several months ago. The court denied those motions — at that time only briefly describing its reasons. Section IA rejects the private defendants’ contention that 47 U.S.C. § 405 dictates that the plaintiffs are required to file a petition for rehearing with the FCC before securing relief and the private defendants’ alternative contention that 47 U.S.C. § 402(a) and 28 U.S.C. § 2842 confer exclusive jurisdiction over the subject matter of this lawsuit to the court of appeals. Section IB rejects the defendants’ contention that the doctrine of exhaustion of remedies is applicable to this case. Section IC discusses the defendants’ contention that the FCC has exclusive jurisdiction over the plaintiffs’ claims. The contention is accepted with respect to section 326 claims in part IC1 and rejected with respect to the APA claims and First Amendment claims in parts IC2 and IC3. Section ID rejects the defendants’ contention that the doctrine of primary jurisdiction has any role to play in this case. Section II of the opinion contains the factual findings of the court entered after considering the weeks of trial testimony, hundreds of exhibits, and thousands of pages of deposition testimony. It has not been possible to discuss all of the evidence in the record which supports those conclusions. Still less has it been possible to discuss all of the contrary evidence and each of the defendants’ comments with respect to the many items of evidence. Section II, however, does attempt to present the highlights and most significant evidence which has led the court to conclude that the Commission exerted improper pressure, that the networks improperly considered that pressure in making programming judgments, and that the defendants combined in an effort to compromise the independent judgments of broadcast licensees through the medium of the NAB. Accordingly, it first outlines the parties’ general positions concerning the facts and the court’s general conclusions; it then proceeds to enumerate, chronologically, the court’s specific findings. It concludes with a discussion of three separate factual issues which do not lend themselves to chronological consideration. Section III of the opinion discusses the legal liability issues. Section IIIA considers the liability of the private defendants. Section IIIA1 explains why broadcasters are free to adopt (or reject) the family viewing policy without violating the First Amendment. Section IIIA2 explains why broadcasters are free to adopt (or reject) programming policies even in circumstances where the source of the suggestion is governmental. Section IIIA3 explains that broadcasters who fail to exercise independent program judgments and instead become surrogates in the enforcement of government policy violate the First Amendment. Section IIIA4 explains why the defendants’ agreement to compromise the independent programming judgments of individual licensees violates the First Amendment. Section IIIB discusses the liability of the government defendants. Section IIIB1 explains that the government defendants are free to present programming suggestions, but are not free to issue threats in order to “persuade” broadcasters. Such threats, it is explained, involve per se violations of the First Amendment. Moreover the section holds that the FCC cannot use the licensing process (in the absence of issuing valid regulations) to regulate “offensive” material. Section IIIB2 considers the requirements of the Administrative Procedure Act and indicates that the Commission, by using informal pressures which circumvented the public debate and scrutiny concomitant with rulemaking, violated its duties under the Act. Section IV of the opinion deals with remedial issues. Section IVA discusses requested declaratory relief in connection with the networks’ adoption of the family viewing policy in violation of the First Amendment; Tandem’s request for a court order directing CBS to move “All In The Family” back into the family viewing period is rejected. Section IVB explains the extent to which similar declaratory relief is to be directed against the NAB, while section I VC discusses the necessity for a declaration forbidding the FCC from enforcing the family viewing policy. In section IVD the court rejects plaintiffs’ request for a declaration that any programming suggestions emanating from the FCC would violate the APA and the First Amendment, but indicates that if the FCC attempts to force changes in industry policy, it must comply with APA procedures. Section IVE explains that damages may be awarded against the private defendants, but, as a result of the sovereign immunity doctrine, not against the government defendants. Finally, section IVF discusses plaintiffs’ request for attorneys’ fees and concludes that despite a strong balance of equities in their favor, judicial authority to make such awards has been limited, and no such relief can be granted. I. JURISDICTIONAL ISSUES First, the defendants advance a series of arguments calculated to support the conclusion that the district court is an improper forum for this litigation. Two alternative forums are suggested, i. e., the FCC and the court of appeals. When one considers the nature of the issues tendered by the plaintiffs’ complaints, the insubstantiality of the defendants’ suggestions becomes apparent. The plaintiffs’ complaints require the trier of fact to determine the character and extent of the involvement of the FCC (and/or government officials employed by the FCC) in the adoption of the family viewing policy by the networks and the NAB. The plaintiffs contend that the FCC and government officials employed by the FCC pressured broadcasters into adopting the family viewing policy; the FCC strenuously disagrees. Elementary principles of fairness require that this factual dispute should be decided by a trier of fact other than the FCC. Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962). Basic principles of judicial administration counsel that disputed factual questions are not decided by courts of appeal. United Gas Pipe Line Co. v. FPC, 86 U.S.App.D.C. 314, 181 F.2d 796, cert. denied, 340 U.S. 827, 71 S.Ct. 63, 95 L.Ed. 607 (1950). Thus it is appropriate to approach the defendants’ suggestion that the law requires one of these two forums with a measure of skepticism. Closer scrutiny of the defendants’ arguments reveals that the jurisdictional scheme created by the Congress is consistent with one’s common sense expectations. Federal district courts have original jurisdiction of civil actions arising under any Act of Congress regulating commerce (28 U.S.C. § 1337) and original jurisdiction of civil actions arising under the Constitution and laws of the United States if the prescribed $10,000 jurisdictional amount requirement is satisfied (28 U.S.C. § 1331). These sections are clearly broad enough to encompass the claims of the plaintiffs. The question presented, however, is whether or not Congress has in more specific statutory enactments created exceptions which apply to this case. A. Exclusive Jurisdiction Under 47 U.S.C. §§ 405, 402(a), and 28 U.S.C. § 2342. The private defendants contend that Congress has created a statutory scheme which dictates that all complaints concerning the Commission’s performance should be brought first to the Commission and then, if disagreement should persist, to the appropriate court of appeals. The basic sections are 47 U.S.C. § 405, 47 U.S.C. § 402(a), and 28 U.S.C. § 2342. Section 405 provides in part that after an action has been taken “in any proceeding” by the Commission, any person who was not a party to the proceedings (or any person who relies on a question of fact or law which the Commission has not had an opportunity to consider) must file a petition for rehearing with the Commission before seeking judicial review. Moreover the section provides that the petition for rehearing must be filed within thirty days of the date that public notice is given of the action in question. Subject to exceptions not relevant here, 47 U.S.C. § 402(a) provides that proceedings to challenge orders of the Commission shall be brought under the Administrative Orders Review Act. Section two of that act, 28 U.S.C. § 2342 grants exclusive jurisdiction to the court of appeals to determine the validity of all final orders of the Commission made reviewable under section 402(a). Thus from the private defendants’ perspective the district court is an obviously improper forum. The route established by congressional direction is first to the FCC and then to the court of appeal. This route, fashioned as it is to take advantage of the Commission’s expertise and to foster a unified approach to the development of communications law is proffered as the established, routine, and exclusive method of challenging orders, decisions, reports, and other actions of the Commission. Established and routine it is. Exclusive it is not. The very terms of the statutes reveal that the petition for rehearing requirement is confined to challenges of actions taken in “proceedings” of the Commission and that the exclusive jurisdiction of the court of appeals is reserved only for the review of “final orders” of the Commission. Thus two threshold jurisdictional questions are presented: (1) Did the government actions criticized in the plaintiffs’ complaint take place in “proceedings” within the meaning of 47 U.S.C. § 405? (2) Are the government actions in question “orders” within the meaning of 47 U.S.C. § 402(a) or 28 U.S.C. § 2342? 1. Proceedings. At least, it must be recognized that the activities challenged by the plaintiffs cannot be characterized as the typical proceedings contemplated by statute. The statute contemplates an action of the Commission in the form of a written pronouncement accompanied by public notice. See 47 C.F.R. §§ 1.4(b), 1.104(b), 1.106(f); Microwave Communications, Inc. v. FCC, 169 U.S.App.D.C. 154, 515 F.2d 385 (1974). Such pronouncements serve to generate the kind of record with which a court of appeal is equipped to deal. Here, however, the plaintiffs do not complain of any formal action of the Commission. Indeed an important issue presented by the plaintiffs’ allegations is whether or not the Commission has acted at all. The Commission, itself, takes the position that it has not taken any action other than a Report to Congress which recommended that no Commission action be taken. Instead the Commission suggests that the plaintiffs are questioning the informal expressions of view and public speeches of one member of a Commission which cannot act without a quorum. See WIBC, Inc. v. FCC, 104 U.S.App.D.C. 126, 259 F.2d 941, cert. denied, 358 U.S. 920, 79 S.Ct. 290, 3 L.Ed.2d 239 (1958). Needless to say, the Commission has not issued a public notice of actions which it denies ever taking. The plaintiffs, of course, do not accept the Commission’s position. They charge continuing, pervasive, extra-legal involvement of the government in broadcaster affairs in actions taken behind closed doors without any regular agency proceeding. Although the plaintiffs and the Commission do not agree as to whether or not the Commission has acted, they are in accord on the proposition that no “proceedings” within the meaning of section 405 have taken place. The private defendants, however, maintain that if plaintiffs have been adversely affected by any Commission action, they are required to seek rehearing as a condition precedent to judicial review. There is no case authority to support this sweeping construction of section 405, a construction which would appear to read the term “proceeding” out of the statute. The defendants’ reliance on Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971) and Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 478 F.2d 594, cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973), is misplaced. Neither case defined, or needed to define “proceedings,” because petitions for reconsideration had already been filed. In both cases, the Commission (far from denying its actions) had, without affording an opportunity for public input, formally issued an authoritative statement of policy which arguably set new industry guidelines. Because the Commission has not attempted formal regulations in this case, any definition of “proceedings” which might have been produced in Citizens Center or Yale could not be decisive here. In Citizens Communications Center, the plaintiff brought an action in the United States District Court for the District of Columbia in which it asked for an injunction which would have restrained the Commission from promulgating a policy or rule changing the ground rules applicable to comparative broadcast license renewal proceedings unless it first complied with the requirements of section four of the APA, 5 U.S.C. § 553. The district court dismissed the suit for lack of jurisdiction. Subsequent to the dismissal, as the plaintiff had feared, the Commission issued a policy statement without resort to the procedures outlined in section four. See Policy Statement on Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424 (1970). The Center attacked this Policy Statement on two fronts. It first filed an appeal from the district court’s decision. Second, it filed a petition for rehearing with the Commission and subsequently filed an appeal inter alia from the Commission’s memorandum opinion and order denying reconsideration of its Policy Statement. The Center’s two appeals were consolidated (and those two appeals in turn were consolidated with those of other parties). On appeal, the Commission argued that the issues presented by the Policy Statement were not yet ripe for adjudication. The court rejected this contention, noting in part that the “Policy Statement has been administratively considered and reconsidered by the Commission. The issues before us are ‘purely legal.’ ” 447 F.2d at 1205. The private defendants attach significance to this brief comment. They lift it from its context and suggest it demonstrates the necessity for filing petitions for reconsideration of all FCC actions. Such a rule of law might be appropriate if it were confined to formal FCC actions. If a party were to complain of an official pronouncement of the Commission, even absent adherence to the procedural requirements for rulemaking, a requirement of a reconsideration petition could further orderly adjudication. But such a rule, had it been announced, would have little bearing on the question of whether section 405 applies to actions of the Commission which have not only been unaccompanied by public notice but which the Commission has denied taking. In fact, however, the court in Citizens Center did not speak to the question of whether or not section 405 usurps the jurisdiction of the district court to afford immediate injunctive relief when the FCC has improperly but formally acted without complying with the procedural requirements of section four of the APA. Indeed the court did not even address the question of whether or not injunctive relief was appropriately refused by the district court in the circumstance there presented, one in which it was conceded that no FCC action of any kind had yet taken place. The Center’s appeal from the dismissal in federal court was simply declared to be moot by the court of appeals. Here the plaintiffs allege that the FCC informally regulated without agency proceedings and without public notice. Neither the court of appeals’ position in Citizens Center nor the district court’s holding requires that a petition for reconsideration be filed. Similarly unconvincing is the private defendants’ reliance on Yale Broadcasting Co. v. FCC, supra, 478 F.2d 594. There the Commission, acting sua sponte, issued a Public Notice which discussed the responsibility of licensees to review the lyrics of records before their broadcast. The notice was prompted by a number of complaints which had been sent to the Commission concerning the playing of records containing lyrics which allegedly “permitted” the use of illegal drugs. See 28 F.C.C.2d 409 (1971). Numerous parties filed petitions for reconsideration, and the Commission disposed of those petitions in a memorandum opinion and order which sought to clarify and modify the Public Notice. See 31 F.C.C.2d 377 (1971). The parties’ appeal questioned the propriety of both Commission actions. See 478 F.2d at 595 n.1. The private defendants regard Yale Broadcasting as “analogous to the present controversy.” But quite unlike this case the plaintiffs in Yale sought to attack an FCC written pronouncement publicly identified as such and publicly noticed. As in Citizens Communications Center, the issues were “ ‘purely legal.’ ” 447 F.2d at 1205. Here again the very existence of FCC action gives rise to a serious factual question and no public notice has been issued. See Microwave Communications, Inc. v. FCC, supra, 515 F.2d 385. The court of appeals in Yale did not address the question of whether or not the Public Notice was an action taken in a “proceeding” within the meaning of section 405. Since petitions for reconsideration had been filed anyway, there was no occasion to decide whether they were required. Even if it had adopted an expansive interpretation of that term, such an interpretation would lend no support to the defendants’ attempt to read the word “proceeding” out of section 405. No proceeding within the meaning of section 405 is involved here, and thus no petition for reconsideration is required by that section. 2. Orders. This lawsuit is not within the exclusive jurisdiction of the court of appeals. The actions complained of are not “orders” of the Commission within the meaning of 47 U.S.C. § 402(a) or 28 U.S.C. § 2342. Preliminarily, it should be recognized that the term “order” in the Administrative Orders Review Act is not the equivalent of that term in the Administrative Procedure Act. Section two of the APA defines “order” to include “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing . . ..” 5 U.S.C. § 551(6) (emphasis added). If the term “order” as used in the Administrative Procedure Act were grafted onto the term “order” in the Administrative Orders Review Act, the court of appeals would not have exclusive jurisdiction to consider agency rules and regulations. In order to avoid this unwelcome result the courts in interpreting the Review Act have given the term “order” a more flexible meaning. For example, the District of Columbia Court of Appeals in Gage v. United States Atomic Energy Commission, 156 U.S.App.D.C. 231, 479 F.2d 1214, 1218 (1973), dealt with the problem by stating that the language of the Review Act “make[s] no distinction between orders which promulgate rules and orders in adjudicative proceedings.” Accordingly, the courts have considered petitions to review FCC orders promulgating rules and regulations to fall within the scope of 47 U.S.C. § 402(a). See, e. g., United States v. Storer Broadcasting, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1941); Mt. Mansfield Television, Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971); California Citizens Band Association v. United States, 375 F.2d 43 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967). Nonetheless, although the term “order” in the Administrative Orders Review Act has been interpreted in a manner broader than that used in the Administrative Procedure Act, it never has been interpreted to include all agency actions. At the very least the term “order” implies a formal agency mandate issued at the culmination of some regular agency proceeding. An examination of the related statutes confirms that view. For example, 47 U.S.C. § 408 provides that “all orders of the Commission, other than orders for the payment of money, shall take effect within such reasonable time, not less than thirty days after service of the order . . ..” (emphasis added). 28 U.S.C. § 2344 requires that upon “the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules.” Moreover the same section indicates that the petition to review filed in the court of appeals “shall contain a concise statement of the nature of the proceedings as to which review is sought . . ..” (emphasis added). See also 47 U.S.C. § 405. Clearly the statutory scheme envisions a written order entered on the FCC docket with appropriate notice to the parties. Cf. FPC v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408 (1938). Indeed 47 U.S.C. § 154(j) specifically requires that, “Every . . . official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party interested.” Here the plaintiffs complain of informal actions of the Commission not entered of record, not served upon the parties, and taken wholly outside agency proceedings. Nothing in the language of the relevant statutes even remotely suggests that these activities are “final orders” of the Commission within the meaning of section 2342. Nor does the case law suggest a different result. The leading case is United Gas Pipe Line v. FPC, supra, 86 U.S.App.D.C. 314, 181 F.2d 796. There the court of appeals was asked to review an order of the Federal Power Commission. Recognizing the fact that 15 U.S.C. § 717r(b) granted a party aggrieved by an “order” of the Federal Power Commission the right to seek review in the court of appeals, and without denying the possibility that the petitioner was an aggrieved party, the court of appeals denied review. The court stated that review in the court of appeals presupposed the need for “a record fully encompassing the issues.” 181 F.2d at 799. In the absence of such a record, appellate courts were recognized to have “no intelligible basis for decision” and were without “authority to directly review the Commission’s action.” Id. And although the United requirement of an actual hearing has been questioned by many courts (see, e. g., Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App.D.C. 191, 479 F.2d 912, 915-16 (1973)), the requirement of the need of a record for review has survived. Indeed, “It is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone.” Id. at 916. Thus in cases where the record is unchallenged, where the issues are legal and not factual, and where notice has been provided to the parties the court of appeals has held that it has jurisdiction despite the absence of an administrative hearing. Id. at 915-16. Here, however, there is no “record”; there are material issues of fact; no notice has been given. None of the indicia of appellate jurisdiction is present. Even if section 2342 were somehow deemed to confer jurisdiction upon the court of appeals as to the alleged actions of the FCC, that jurisdiction would not embrace the entirety of this action. The First Amendment claims of the plaintiffs do not necessitate a demonstration of FCC action. A demonstration of FCC action would be one way of meeting the First Amendment state action requirement, it is not the only way. For example, the plaintiffs contend that Chairman Wiley, acting under color of his office, improperly interfered with programming decisions of the broadcasters. These allegations are sufficient to meet the state action requirement whether or not his actions were approved by other Commissioners and whether or not his actions might be deemed “agency action” for purposes of the Administrative Procedure Act or final orders of an administrative agency for purposes of the Administrative Orders Review Act. Moreover nothing in section 2342 could conceivably be deemed to cede jurisdiction to the court of appeals over the plaintiffs’ action against the private defendants. Since the statute is specifically and exclusively designed to establish a review procedure for agency orders, there is no method by which the plaintiffs could join the private parties as defendants in a review proceeding before the court of appeals. To be sure, there is a procedure by which interested parties may intervene (28 U.S.C. § 2348), but the court of appeals under section 2342 has no power to hear a case by private plaintiffs against private defendants and no authority under 28 U.S.C. § 2349(a) to do anything more than enter a “judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.” Id. The initial power to adjudicate such disputes between private litigants and to enter appropriate relief is reserved to the district courts. B. Exhaustion of Remedies. The defendants contend that even if 47 U.S.C. § 405 and 28 U.S.C. § 2342 are not applicable to the circumstances of this case, the general doctrine of exhaustion of remedies should be applied to force the plaintiffs to file their complaints with the Commission. Specifically they point: (1) to procedures which permit the Commission on the motion of a party to “issue a declaratory order to terminate a controversy or remove uncertainty” (5 U.S.C. § 554(e); 47 C.F.R. § 1.2); (2) to procedures which permit persons to petition for “issuance, amendment or repeal of a rule or regulation” (47 C.F.R. § 1.401); (3) to procedures which permit persons to file informal requests for Commission action (47 C.F.R. § 1.41). Thus the defendants invoke “the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); FCC v. Schreiber, 381 U.S. 279, 296-97, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965). The FCC, for example, states that “in total disregard of principles of exhaustion of remedies, plaintiffs, to date, have never attempted to bring their complaint to the attention of the Commission in the normal administrative mode, prior to instituting this suit.” Essentially the argument boils down to this: The plaintiffs, who allege that the Commission and its staff sought through extra-legal channels to impose an unconstitutional scheme of censorship in direct defiance of established procedures, statutory commands, and constitutional limitations, must continue to suffer irreparable injury while going through the ritualistic exercise of asking the Commission to admit guilt which it strenuously denies. Ironically, the Commission’s papers on file with this court (the very papers which argue for exhaustion of remedies) demonstrate that it has predetermined the issues adversely to the plaintiffs. It forcefully argues in its papers that there has been no agency action of any kind and no violation of section 326 or of the First Amendment by the Commission or any of its members. Exhaustion of remedies is not required when the administrative agency involved is biased (Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 206, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755, 768-69 (1972); Amos Treat & Co. v. SEC, supra, 306 F.2d at 266-67; or where exhaustion would be futile. Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 703 (1974); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 825 (2d Cir. 1967); Western International Hotels v. Tahoe Regional Planning Agency, 387 F.Supp. 429, 433-34 (D.Nev.1975). The private defendants suggest, however, that the apparent futility of the remedy before the FCC is belied by the availability of the court of appeal review procedure. The suggestion of the private defendants is twofold: first, that the court of appeals could force the FCC to give the plaintiffs’ claim appropriate consideration; second, that even if remedies with the FCC were .inadequate, the court of appeals would afford adequate consideration to the plaintiffs’ claims. The parties’ first point overlooks the underlying cause of the remedy’s inadequacy. The inadequacy results not from any venality on the part of the Commission but rather because the Commission is understandably biased. Vigorous advocates inevitably are. The court of appeals cannot be expected to transform admittedly interested parties into impartial observers. The parties’ second point puts the cart before the horse. Wherever this lawsuit should start, and whatever its outcome in the initial forum, it can proceed at least to the court of appeals. Compare 28 U.S.C. § 2342 with 28 U.S.C. § 1291. The question is what kind of record the court of appeals will review. For the reasons stated previously, a record with findings of fact entered by the FCC would be fatally defective. The effectiveness of any remedy in the court of appeals presupposes that material issues of fact first be presented to an impartial trier of fact. Finally, even if the problems of bias and futility were not involved, exhaustion would not be required because that doctrine is inapplicable whén an agency has taken an action beyond its jurisdiction and thereby imposed an immediate burden on the exercise of important rights. As Professor Davis observes, “No court requires exhaustion when exhaustion will involve irreparable injury and when the agency is palpably without jurisdiction.” 3 K. Davis, Administrative Law Treatise § 20.01, at 56 (1958). See, e. g., Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772 (1919); Dragna v. Landon, 209 F.2d 26 (9th Cir. 1953); Ashland Oil Co. v. Federal Energy Administration, 389 F.Supp. 1119 (N.D.Cal.1975); A. E. Staley Manufacturing Co. v. United States, 310 F.Supp. 485 (D.Minn.1970). This does not mean, of course, that orderly administrative procedures may be bypassed automatically merely because the plaintiff claims that a particular administrative action is unconstitutional or otherwise in excess of its statutory powers. See, e. g., Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Myers v. Bethlehem Shipbuilding Corp., supra, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Boire v. Miami Herald Publishing Co., 343 F.2d 17 (5th Cir.), cert. denied, 382 U.S. 824, 86 S.Ct. 56, 15 L.Ed.2d 70 (1965). The case law though marked by overgeneralization can be reconciled as Davis observes by the application of three factors: “[E]xtent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question of jurisdiction.” 3 K. Davis, supra, § 20.03 at 69. In fact, the Ninth Circuit Court of Appeals has specifically adopted Professor Davis’ formulation commending it as one that “is as complete and workable as can be stated.” Lone Star Cement Corp. v. FTC, 339 F.2d 505, 510 (1964). First, as to the extent of injury, the actions complained of place a continuing and irreparable burden on First Amendment rights. As the plaintiffs put it, “Today’s censorship is not caused by tomorrow’s tolerance.” There is no reason to believe that swift agency relief is likely. Even more important there is no doubt that the Commission is palpably without jurisdiction to interfere with broadcaster decisionmaking in the manner complained of. The FCC does not even purport to possess the right to do what the plaintiffs contend they have done. The FCC simply insists that it has not interfered with broadcaster decisionmaking. Resolving the conflict requires impartial adjudication, not specialized understanding. In short, each of the operative factors points to one conclusion: exhaustion is not necessary. The defendants point to the fact that the Commission has in a myriad of cases considered constitutional questions about broadcaster conduct and Commission conduct. To the extent that agreement is directed to the judicially created doctrine of exhaustion, it is irrelevant. The point is not that the Commission under the exhaustion doctrine cannot hear constitutional questions. The point is that in the absence of an exclusive statutory mechanism the courts have equity power to enjoin ultra vires Commission actions that threaten irreparable injury. To the extent that argument is directed to the proposition that remedies with the Commission are exclusive, it is discussed in section IC1, infra. The private defendants further imply that even if exhaustion of remedies with respect to the plaintiffs’ claims against the government defendants were not required, exhaustion of remedies should be imposed as to the plaintiffs’ claims against the broadcasters. Assuming arguendo that the doctrine' of exhaustion applies to the plaintiffs’ constitutional claims against the private defendants, there is no adequate remedy to exhaust. The plaintiffs’ primary claims against the broadcasters depend upon the same factual premises as their claims against the FCC. To the extent that the plaintiffs’ remedies against the FCC are inadequate, they are equally inadequate against the broadcasters. As the Supreme Court emphasized in McKart v. United States, supra, 395 U.S. at 193, 89 S.Ct. at 1662, the doctrine of exhaustion of remedies is “like most judicial doctrines subject to numerous exceptions.” It comes “into effect only if the remedy . . . is adequate to protect the asserted claim.” L. Jaffe, Judicial Control of Administrative Agencies 426 (1965). Here, since the remedy is inadequate, the doctrine does not come into effect. C. Exclusive Jurisdiction: Revisited. The defendants (government and private) take the argument one step further. Running through their briefs is the notion that whether or not the traditional exceptions to the doctrine of exhaustion of remedies apply (i. e., independent of whether or not there is an adequate remedy), the plaintiffs are statutorily required to exhaust remedies with the FCC. Essentially the position is that even if sections 47 U.S.C. § 405, 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 have not by their terms evidenced a congressional intention to make the FCC the exclusive fact finder for any matter involving the television industry, the comprehensive character of the statutory scheme and the case law interpreting that scheme has. Thus the argument goes not to timing, but to power. In this connection it is necessary to distinguish between the three causes of action now at issue. 1. Section 826 Claim. The plaintiffs attempt to state a private cause of action against the Commission and its commissioners under section 326 of the Federal Communications Act of 1934. Courts which have treated private claims against broadcasters founded upon the Communications Act have uniformly concluded that the Act does not give rise to a private cause of action in the federal courts. Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83, 86 (7th Cir. 1962); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497, 500 (1st Cir. 1950); McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597, 600 (3d Cir. 1945); Post v. Payton, 323 F.Supp. 799 (E.D.N.Y.1971); Ackerman v. Columbia Broadcasting System, Inc., 301 F.Supp. 628, 631 (S.D.N.Y.1969); Gordon v. National Broadcasting Co., 287 F.Supp. 452, 455 (S.D.N.Y.1968). The parties have not cited any case in which a plaintiff has attempted to state a section 326 private cause of action, but the cases which have disputed the existence of a private cause of action under various sections of the Act have not based their analysis on the specific sections but on an analysis of the Act as a whole. Thus the Supreme Court stated in Scripps-Howard Radio v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229 (1942), “The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications.” In this area, the Commission is the “primary and exclusive forum” (Ackerman v. Columbia Broadcasting System, Inc., supra, 301 F.Supp. at 631) to initiate complaints based upon the Act. The point, therefore, is not that the plaintiffs must exhaust administrative remedies before coming to this court. The point is that the Act countenances no private cause of action whether or not administrative remedies have been exhausted. Daly v. Columbia Broadcasting, supra, 309 F.2d at 86; Morrisseau v. Mt. Mansfield Television, Inc., supra, 380 F.Supp. at 515. This does not mean, however, that abuses of the Commission are immune from scrutiny. As discussed supra, (see section IA), the court of appeals has the power to scrutinize final orders of the Commission. As discussed infra, the Administrative Procedure Act and the First Amendment give rise to private causes of action against the Commission in the federal courts. 2. Administrative Procedure Act Claim. Section 10(a) of the APA, 5 U.S.C. § 702, provides that “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The Commission insists that judicial review is confined to the court of appeals and supports that view by reference to section 10(b) of the Act, 5 U.S.C. § 703, “The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute . . ..” Conveniently the Commission does not refer to the qualifying language of the section which reads, “or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.” (emphasis added). As discussed in section IA, the Administrative Orders Review Act and 47 U.S.C. § 402(a) confer exclusive jurisdiction upon the court of appeals to review final orders of the Commission. The Commission apparently is arguing that if Commission activities do not amount to a final order, they cannot be considered agency action. Indeed the Commission at one point specifically contends that, “If the family hour were to be considered a rule or other final agency action under the APA, then exclusive judicial review would lie in the Court of Appeals.” (emphasis added and capitals deleted). This construction of the Administrative Procedure Act is at odds with its language, its legislative history and the case law interpreting it. tli)] Section two of the APA, 5 U.S.C. § 551(13), defines agency action in sweeping terms. It includes “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Indeed both the House and Senate committees in recommending the bill observed that the definition of agency action was specifically designed “to assure the complete coverage of every form of agency power, proceeding, action, or inaction.” S.Rep.No.752, 79th Cong., 1st Sess. 12 (1945); H.Rep.No.1980, 79th Cong., 2d Sess. 21 (1946), U.S.Code Cong.Serv.1946, p. 1195. To accept the Commission’s suggestion that only “final orders” are reviewable in the courts would directly fly in the face of the purpose of the APA stated again by both the House and Senate committees responsible for the legislation; i. e., the act is “designed to afford a remedy for every legal wrong.” S.Rep.No.752, 79th Cong., 1st Sess. 7 (1945); H.Rep.No.1980, 79th Cong., 2d Sess. 17 (1946). Thus the Supreme Court stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) that The Administrative Procedure Act provides specifically not only for review of “[ajgency action made reviewable by statute” but also for review of “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s “generous review provisions” must be given a “hospitable” interpretation. Even more specifically in Bucks County Cable TV, Inc. v. United States, 299 F.Supp. 1325, 1333 (E.D.Pa.1969), rev’d on other grounds, 427 F.2d 438 (3d Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970) the court ruled: [T]he Administrative Procedure Act supplements the special statutory review procedures for final orders of the various agencies. Its review provisions utilize traditional equity actions for agency ac-' tion not amounting to a final order, but which nonetheless directly affects plaintiff’s rights. See also Utah Fuel Co. v. National Bituminous Coal Commission, 306 U.S. 56, 59-60, 59 S.Ct. 409, 83 L.Ed. 483 (1939); Deering Milliken, Inc. v. Johnston, 295 F.2d 856, 865 (4th Cir. 1961); Jefferson Standard Broadcasting Co. v. FCC, 297 F.Supp. 784, 787-89 (W.D.N.C.1969); 3 K. Davis, supra, § 23.03 at 304; L. Jaffe, Judicial Control of Administrative Action 358-59 (1965). The Commission, of course, is correct when it asserts that the actions of a single commissioner do not amount to agency action within the meaning of the APA. The Commission’s contentions in that regard are discussed in section II 135. But to the extent the Commission attempts to suggest that the term “agency action” is synonymous with final orders, its position is rejected. 3. First Amendment Claims. The defendants’ position that the FCC has exclusive jurisdiction to entertain the plaintiffs’ constitutional claims presents an entirely different order of question. Although the parties are in dispute as to whether or not the First Amendment gives rise to a private cause of action for damages and whether or not the First Amendment affords a basis for declaratory or injunctive relief under the circumstances of this case, no one doubts that in an appropriate case that the First Amendment will support a private cause of action for declaratory and injunctive relief. “The inherent federal judicial power to enjoin threatened or continued violation of constitutional rights is beyond question.” Ackerman v. Columbia Broadcasting System, Inc., supra, 301 F.Supp. at 633, citing Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Most courts presented with constitutional claims against broadcasters have been willing to consider them on the merits without reference to the doctrine of exhaustion of remedies. See Massachusetts Universalist Convention v. Hildreth & Rogers Co., supra, 183 F.2d at 501; McIntire v. Wm. Penn Broadcasting Co., supra, 151 F.2d at 601; Post v. Payton, supra, 323 F.Supp. at 803-04; Ackerman v. Columbia Broadcasting System, Inc., supra, 301 F.Supp. at 633-34. But see Maguire v. Post Newsweek Stations, 24 P&F Radio Reg.2d 2094 (D.C. Cir. 1972). The question of whether or not the courts should resort to the exhaustion doctrine (or the doctrine of primary jurisdiction discussed in section ID infra) when considering a plaintiff’s constitutional claim is ordinarily academic. Since most courts have ruled that broadcaster action is not per se the equivalent of government action for First Amendment purposes the question of whether or not the plaintiffs have exhausted claims dependent on this very theory has ordinarily been bereft of practical significance. See, e. g., Massachusetts Universalist Convention v. Hildreth & Rogers Co., supra, 183 F.2d at 501; McIntire v. Wm. Penn Broadcasting Co., supra, 151 F.2d at 601; Post v. Payton, supra, 323 F.Supp. at 803. Nonetheless most courts which have proceeded to decide the constitutional merits without invoking the exhaustion doctrine have so proceeded while simultaneously referring Communications Act claims to the Commission. Since these courts do not require exhaustion as even a preliminary step to judicial consideration of their claim, a fortiori they do not believe that the FCC possesses exclusive jurisdiction to decide such claims. They obviously assume that the Communications Act did not sub silentio divest the courts of their traditional power to decide constitutional issues. But the defendants apparently believe that those cases which have assumed jurisdiction over constitutional claims and decided them on the merits have gone too far. They suggest that the proper approach was followed by the court in Maguire v. Post Newsweek Stations, supra, 24 P&F Radio Reg.2d 2094 and imply that that case holds that exhaustion of remedies must be pursued with respect to constitutional claims involving the broadcasting industry whether or not those remedies are adequate. In Maguire, a group of parents brought an action in the district court seeking declaratory and injunctive relief against broadcasting of the television program “Wild, Wild West” before 9:00 p. m. The parents sought to assert the Fifth Amendment rights of their children to be free from mental harm thought to be caused by exposure to the violence depicted in the program. The district court dismissed the suit inter alia for failure to exhaust administrative remedies, and the District of Columbia Court of Appeals affirmed in a brief per curiam opinion that was not officially reported. The opinion noted that the Commission had regular procedures for examining viewer complaints about television programming and that a petition for rule-making on the subject of television violence was then before the Commission. Accordingly, the court required exhaustion of administrative remedies. But Maguire in no wise can be said to stand for the proposition that “if there is any power or authority to consider the issues raised in the complaint, it resides with the FCC.” Rather it stands for what it says: “[T]he mere existence of a putatively valid statutory or constitutional claim [does not justify] bypassing orderly administrative procedures.” 24 P&F Radio Reg.2d at 2095. Here the plaintiffs’ position does not depend upon the notion that the mere existence of a constitutional claim justifies bypassing remedies with the FCC. Rather they insist that the Communications Act does not divest the courts of the power to hear First Amendment claims and that the remedies which the defendant would have them exhaust are palpably inadequate in the circumstances of this case. Thus it is unnecessary to decide here whether the approach taken in Maguire is appropriate. It is sufficient to observe that Maguire did not consider a case in which administrative remedies were obviously inadequate. The private defendants’ reliance upon Allen B. Dumont Laboratories v. Carroll, 184 F.2d 153 (3d Cir. 1950), cert. denied, 340 U.S. 929, 71 S.Ct. 490, 95 L.Ed. 670 (1951), is even less well taken. That case ruled that an attempt by the State of Pennsylvania through its State Board of Censors to regulate movies shown on Pennsylvania television was invalid because the field of television regulation had been preempted by Congress and was no longer open to the states. Moreover the district court ruled as an alternative basis for decision that the regulation was unconstitutional on commerce grounds. 86 F.Supp. 813, 816 (E.D.Pa.1949). All of this was done without referring anything to the FCC. If the defendants’ position was correct, the Dumont courts should have declared an absence of judicial jurisdiction and referred the case to the FCC. Instead Dumont can be appropriately cited in support of the contention that the courts retain the power to free broadcasters from illegal restraints upon their freedom to decide what shall and shall not be broadcast. This does not mean that the FCC could be sued in the district courts with respect to orders which an aggrieved party claims are in violation of the First Amendment. As discussed previously, the power of review of the Commission’s final orders is confined to the court of appeals. Since an agency action not amounting to a final order is already reviewable (in appropriate circumstances) in the district courts under the Administrative Procedure Act (see section IC2), it would hardly make sense to hold that a First Amendment cause of action has somehow been barred.. Nor does the holding that broadcasters or other individuals may be sued in district courts for First Amendment violations open a pandora’s box. If Maguire is correct, the doctrine of exhaustion of remedies will apply in most cases. Even if Maguire were wrong, First Amendment defenses would keep the floodgates closed just as easily as any sweeping new theory asserting lack of power in the federal judiciary. Nor is the question merely one of judicial versus administrative power. If the defendants were correct in their assumption that the FCC possessed exclusive power to deal with questions affecting the broadcasting industry, there would be no way for plaintiffs injured by violations of their First Amendment rights to receive compensation for their losses, inasmuch as that agency has no power to award damages for losses. The defendants respond by contending that there is no such thing as a First Amendment cause of action for damages, and, therefore, maintain that Tandem’s claim for damages is without any legal foundation. Since the argument also is related to the question of whether or not the FCC has exclusive jurisdiction, it will be treated here. The starting point, of course, is Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). There the Supreme Court held that the Fourth Amendment would support a private cause of action for damages. The defendants rely upon the handful of cases which have attempted to confine Bivens to its Fourth Amendment context. See, e. g., Archuleta v. Callaway, 385 F.Supp. 384, 388 (D.Colo.1974); Moore v. Schlesinger, 384 F.Supp. 163, 165 (D.Colo.1974); Smothers v. Columbia Broadcasting System, Inc., 351 F.Supp. 622, 625-26 (C.D.Cal.1972) (dictum); Davidson v. Kane, 337 F.Supp. 922, 924 (E.D.Va.1972). In Bivens, the primary issue of concern to the Court was whether or not the Fourth Amendment created personal federal rights independent of those created by state law. The Court concluded that “[T]he Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” 403 U.S. at 392, 91 S.Ct. at 2002. Having determined that the Fourth Amendment creates personal federal rights, it was not difficult to conclude that the remedy of damages was available. As the Court put it, “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Id. at 395, 91 S.Ct. at 2004. Similarly there can be no doubt that the First Amendment creates personal federal rights. As the Supreme Court stated in Schneider v. Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939), “This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used.” Since damages are the ordinary remedy for the invasion of personal interests in liberty and since the First Amendment creates personal interests in liberty, it follows that the First Amendment creates a private cause of action for damages. Indeed most cases which have treated the question have recognized that in light of Bivens there is “no principled basis for limiting the availability of damages to cases involving interests protected by the fourth amendment.” Note, “Damage Remedies Against Municipalities for Constitutional Violations,” 89 Harv.L.Rev. 922, 934 (1976); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3d Cir. 1972); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Patmore v. Carlson, 392 F.Supp. 737 (E.D.Ill.1975); Revis v. Laird, 391 F.Supp. 1133 (E.D.Cal.1975); Gardels v. Murphy, 377 F.Supp. 1389 (N.D.Ill.1974); Butler v. United States, 365 F.Supp. 1035 (D.Hawaii 1973); Scheunemann v. United States, 358 F.Supp. 875 (N.D.Ill.1973). See Hostrap v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975). The defendants insist, however, that in this case, unlike Bivens, there are “special factors counseling hesitation.” 403 U.S. at 396, 91 S.Ct. 1999. Specifically they argue that in the cases extending Bivens the federal employees “interfered, almost physically, with the plaintiff in a direct and personal manner.” Aside from the fact that this imaginative distinction cannot begin to account for the facts of all the cases (see, e. g., Paton v. La Prade, supra, 524 F.2d 862) (FBI mail surveillance gives rise to First Amendment claim), United States ex rel. Moore v. Koelzer, supra, 457 F.2d 892 (use of false testimony and falsification of document offered in evidence against plaintiff in prior criminal prosecution)), there is nothing in the cases or in policy to suggest that such a distinction has ever been thought to be or should have been thought to be dispositive. Instead the cases here properly understood Bivens to amount to nothing less than a “sweeping approbation of constitutionally-based causes of action.” Brault v. Town