Community Broadcasting of Boston, Inc. v. F. C. C.

• Decision Date: 19 November 1976
• Docket Number: No. 76-1526,76-1526
• Citation: 546 F.2d 1022,178 U.S.App.D.C. 256
• Parties: COMMUNITY BROADCASTING OF BOSTON, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, RKO General, Inc. and Dudley Station Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1022

546 F.2d 1022

178 U.S.App.D.C. 256

COMMUNITY BROADCASTING OF BOSTON, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

RKO General, Inc. and Dudley Station Corporation, Intervenors.

No. 76-1526.

United States Court of Appeals, District of Columbia Circuit.

Nov. 19, 1976.

Thomas H. Truitt, Charles Fabrikant, and Robert B. Cornell, Washington, D. C., were on the motion for petitioner.

Ashton R. Hardy, Gen. Counsel, F. C. C., Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., and Sheldon M. Guttmann and Thomas R. King, Jr., Attys., F. C. C., Washington, D. C., were on the motion for respondent Federal Communications Commission.

Barry Grossman and John J. Powers, III, Attys., Dept. of Justice, Washington, D. C., were on the motion for respondent United States of America.

Harold David Cohen and J. Laurent Scharff, Washington, D. C., were on the motion for intervenor RKO General, Inc.

Joseph F. Hennessey, Washington, D. C., was on the motion for intervenor Dudley Station Corp.

Before WRIGHT, TAMM and MacKINNON, Circuit Judges.

PER CURIAM:

Petitioner Community Broadcasting of Boston, Inc. (Community) seeks judicial review of an order of the Federal Communications Commission (FCC) denying Community's petition to disqualify the law firm of Pierson, Ball & Dowd (PB&D) from representing intervenor RKO General, Inc. (RKO) in proceedings before the agency. The FCC and RKO move to dismiss Community's petition for review on the ground that the agency's refusal to disqualify is an interlocutory order and therefore not reviewable at this stage of the litigation. ¹ We are persuaded that policy considerations disfavoring "piecemeal litigation" ² outweigh the potential costs of withholding appellate review until after final agency action. We therefore conclude that the order refusing to disqualify counsel is a nonappealable interlocutory order and dismiss Community's petition for review.

I

The underlying agency action grows out of RKO's application to renew its television broadcast license for WNAC-TV in Boston and the competing applications filed by Community and intervenor Dudley Station Corporation. On December 30, 1975 Community petitioned the FCC to disqualify RKO's attorneys, PB&D, on the ground that one of the firm's partners, Dean Burch, had previously participated in preliminary rulings on the RKO application during his tenure as chairman of the FCC.

The facts surrounding the petition to disqualify are not in dispute. PB&D has continuously represented RKO and its predecessor companies in broadcast matters since 1945, and has participated in the present license renewal application since the date of filing on December 31, 1968, prior to Dean Burch's joining the FCC in October 1969. Burch left the FCC in March 1974 and joined PB&D in January 1975. Although at the time Burch joined the firm Community had long been embroiled in the licensing contest, Community first petitioned the agency for disqualification of PB&D on December 30, 1975. In affidavits submitted to the FCC Burch attested that he had not shared any confidential or inside FCC information with any member of the firm and, indeed, had no recollection of any such information.

On June 1, 1976 the FCC issued an extensive order denying Community's petition to disqualify PB&D. 59 F.C.C.2d 641. Thereafter, on June 15, the agency denied Community's petition for stay of its earlier order. On June 11, 1976 Community petitioned this court for review of the FCC order denying disqualification and moved for a stay of agency proceedings pending judicial determination of the appeal. On June 25, 1976 a division of this court denied Community's motion for a stay. Community's petition for rehearing en banc was denied on July 9, 1976. In moving to dismiss Community's petition for review, the FCC and RKO now raise a jurisdictional question that this court has never had an opportunity to address: whether refusal by an agency to disqualify counsel on ethical grounds should be subject to immediate judicial review.

II

Pursuant to 28 U.S.C. § 2342(1) (1970) federal Courts of Appeals possess exclusive jurisdiction to review "final orders of the Federal Communications Commission * * *." The finality requirement of Section 2342(1) is the counterpart to that of 28 U.S.C. § 1291 (1970) which governs appeals from final orders of federal District Courts. Both provisions reflect the reasoned policy judgment that the judicial and administrative processes should proceed with a minimum of interruption. ³ To effectuate this common purpose, courts have permitted interlocutory appeals under both statutes only in exceptional cases, ⁴ a requirement that partakes of similar meanings in both contexts. ⁵ In analyzing whether to allow an appeal from the agency's order in the present case, therefore, we can freely look to decisions involving appeals from District Court orders denying motions to disqualify counsel.

III

In order to ameliorate the harshness of the finality requirement of Section 1291, the Supreme Court fashioned, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), a "collateral order" exception to the finality rule. The Cohen exception allows immediate appeals from certain orders that do not fully and finally terminate the litigation between the parties. ⁶ The Supreme Court outlined several prerequisites to appeal from an interlocutory order. First, the order must be a final determination of a claim of right "separable from, and collateral to," the rights asserted in the main action. ⁷ Second, the order must present "a serious and unsettled question," rendering it "too important to be denied review." ⁸ Finally, an immediate appeal must be necessary to preserve rights that would otherwise be lost on review from final judgment. ⁹ In conclusion the Court in Cohen emphasized that the finality requirement should be given "practical rather than a technical construction." ¹⁰

The collateral order doctrine of Cohen has spawned a variety of approaches to the issue of appealability of orders denying motions to disqualify counsel. The Ninth Circuit has ruled that a disappointed litigant may not have immediate review of an order denying a motion to disqualify. ¹¹ Nevertheless, in Cord v. Smith, 338 F.2d 516, 521-522 (9th Cir. 1964), clarified, 370 F.2d 418 (9th Cir. 1966), the Ninth Circuit treated the aborted appeal as a petition for a writ of mandamus and proceeded to rule on the merits of the disqualification claim.

The sequence of decisions by the Second Circuit highlights the conflicts generated by this question. In Fleischer v. Phillips, 264 F.2d 515, 516-517 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959), the Second Circuit overruled an earlier case ¹² in which it had held appealable a denial of a motion to disqualify. In an opinion by Chief Judge Clark the court in Fleischer distinguished between appeals from orders granting disqualification and those denying disqualification, ¹³ concluding that, for the sake of judicial economy, ¹⁴ immediate appeals would not be allowed in the latter situation.

The case of Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974), marked a turning point in the tortuous history of Second Circuit cases. Sitting en banc, the court overruled Fleischer ¹⁵ and held that denials of motions to disqualify are immediately appealable under the Cohen doctrine. Echoing the concern of several other courts, ¹⁶ Silver Chrysler emphasized that an appeal from final judgment will come too late to undo the damage wrought by the continued participation of an attorney who should have been disqualified. ¹⁷ The Third, ¹⁸ Fifth, ¹⁹ Sixth, ²⁰ and Tenth ²¹ Circuits now are in agreement with the Second in allowing appeals from denials of motions to disqualify.

IV

Until the present case this court has not had occasion to adopt a position on the appealability of orders denying motions to disqualify counsel on ethical grounds. ²² Our decisions in Yablonski v. United Mine Workers, 145 U.S.App.D.C. 252, 448 F.2d 1175 (1971) (Yablonski I ), and Yablonski v. United Mine Workers, 147 U.S.App.D.C. 193, 454 F.2d 1036 (1971) (Yablonski II ), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972), were predicated on the unique set of circumstances underlying those two motions to disqualify. Plaintiffs in the Yablonski cases sued the UMW and several of its officers under Section 501(b) of the Labor-Management Reporting and Disclosure Act ²³ (LMRDA) for an accounting of union funds. The union's regular outside counsel, which initially represented the union and its officers, withdrew as counsel for the officers. The District Court denied plaintiffs' motion to disqualify the firm from representing the union and, on appeal in Yablonski I, this court vacated that order. ²⁴ In light of the firm's representation of the individual officers in other proceedings, this court found that the firm's continued representation of the union would undercut the objectives of the LMRDA ²⁵ and the public interest in having the charges "determined in a context which is as free as possible from the appearance of any potential for conflict of interest in the representation of the union itself." ²⁶

Not until Yablonski II did this court discuss the question of appealability. Yablonski II grew out of the proceedings on remand from Yablonski I. Although the union's general counsel and his staff had previously represented the individual officers in other proceedings, the District Court refused to bar them from representing the union on remand. Rather than taking an appeal, plaintiffs sought a writ of mandamus. We granted the petition in order to "confine (the) lower court to the terms of (this) appellate tribunal's mandate." ²⁷ We then explained that in Yablonski I immediate review was necessary to prevent serious erosion...