Levinson v. New Hampshire Public Television, et al

Filing 4

ORDER the request for a three judge panel in the 1 Complaint is denied. The motion 3 for a Preliminary Injunction is referred to the Magistrate Judge. So Ordered by Judge Paul J. Barbadoro.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Stephen Levinson
v.
Civil No. 11-cv-589-PB
New Hampshire Public Television et al.

O R D E R

Before the court is a request for the convening of a threejudge panel, set forth in the complaint (Doc. No. 1), filed by
pro se plaintiff Michael Stephen Levinson.

Levinson has also

filed a “Motion for Temporary Injunction Enjoining State of New
Hampshire Secretary of State William Gardner from Conducting U.S.
Presidential Primary, To Be Held January 10, 2012 Until Such Time
as This Docketed Case Is Heard” (Doc. No. 3).
I.

Request for Three Judge Panel
28 U.S.C. § 2284(a) states that a “district court of three

judges shall be convened when otherwise required by Act of
Congress, or when an action is filed challenging the
constitutionality of the apportionment of any congressional
districts or . . . statewide legislative body.”

Id. § 2284(a).

A single judge to whom a request for a three judge panel is

presented must rule on whether the matter is properly assigned to
three judges before notifying the chief judge of the circuit
regarding the request.

See 28 U.S.C. § 2284(b)(1); see also

Tyree v. Massachusetts, No. 06-10232-MLW, 2008 WL 427293, *4 (D.
Mass. Feb. 17, 2008).
Levinson asserts that his claim challenging the
constitutionality of an amendment to 47 U.S.C. § 312(a)(7),
enacted in 2000, provides grounds for convening a three-judge
panel.1

Specifically, Levinson cites a provision of the

appropriations legislation that enacted the pertinent amendment
as authority for convening a three-judge court to hear his
claims.

The cited session law, see Pub. L. No. 106-554,

§ 1(a)(4) [Div. B, Title XVII, § 1741], 114 Stat. 2763A-351 352A, is inapposite to Levinson’s claims, however; it authorizes
a court of three judges to hear constitutional challenges to
amendments and laws enacted under a different title, namely,

The amendment at issue, codified at 47 U.S.C. § 312(a)(7),
exempted noncommercial educational broadcasters from a statutory
provision authorizing the Federal Communications Commission to
revoke a broadcaster’s license for failing to provide certain
candidates with reasonable access to airtime to promote their
candidacy. See id. The amendment was enacted as part of Title I
of Division B of Public Law 106-554, § 1(a)(4) [Div. B, Title I,
§ 148], 114 Stat. 2763A-251, 2000 U.S.C.C.A.N. (114 Stat. 2763A)
251.
1

2

Title XVII, the Children’s Internet Protection Act, Pub. L.

No.

106-554, § 1(a)(4) [Div. B, Title XVII, §§ 1701-1741], 114 Stat.
2763, 2763A-335, 2000 U.S.C.C.A.N. (114 Stat. 2763A) 335.
Levinson is not challenging any portion of the Children’s
Internet Protection Act; nor is he asserting any other claim in
this action that Congress has required to be heard by a court of
three judges.

Accordingly, Levinson’s request for a three judge

panel is denied.
II.

Referral of Preliminary Injunction Motion
In accordance with 28 U.S.C. § 636(b)(1)(B), Magistrate

Judge Landya B. McCafferty is designated to review and consider
the request for injunctive relief, and, if necessary, conduct a
hearing on the matter.

In accordance with subparagraph (C), the

Magistrate Judge shall file her proposed findings and
recommendations under subparagraph (B) with the Court, and a copy
shall forthwith be mailed to all parties.

CONCLUSION
As set forth above, the request for a three judge panel is
denied, and the motion for a preliminary injunction (Doc. No. 3)
is referred to Magistrate Judge McCafferty for a Report and

3

Recommendation.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
January 9, 2012
cc:

Michael Stephen Levinson, pro se

4