Law Offices of Seymour M. Chase, P.C. v. F.C.C.

• Decision Date: 25 March 1988
• Docket Number: No. 87-1054,87-1054
• Citation: 843 F.2d 517
• Parties: , 56 USLW 2581 LAW OFFICES OF SEYMOUR M. CHASE, P.C., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 517

843 F.2d 517

269 U.S.App.D.C. 24, 56 USLW 2581

LAW OFFICES OF SEYMOUR M. CHASE, P.C., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

No. 87-1054.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 4, 1988.

Decided March 25, 1988.

As Amended March 25, 1988.

Gene A. Bechtel, with whom Seymour M. Chase, Washington, D.C., was on the brief, for petitioner.

David Silberman, Counsel, F.C.C., Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Robert B. Nicholson, Marion Jetton, and Robert J. Wiggers, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Catherine G. O'Sullivan, Atty., Dept. of Justice, Washington, D.C., also entered an appearance, for respondents.

Before WALD, RUTH BADER GINSBURG, and WILLIAMS, Circuit Judges.

Opinion filed by Circuit Judge RUTH BADER GINSBURG.

Opinion concurring in the judgment filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge WALD.

PER CURIAM:

This petition seeks judicial review of an order of the Federal Communications Commission Circuit Judge RUTH BADER GINSBURG and Circuit Judge WILLIAMS, each writing separately, join in a judgment dismissing the petition.

disqualifying petitioner, an attorney, from continuing to serve as counsel in an ongoing agency proceeding.

Chief Judge WALD dissents from the panel's judgment.

RUTH BADER GINSBURG, Circuit Judge:

The law offices of Seymour M. Chase petition for review of an order of the Federal Communications Commission (FCC or Commission) disqualifying Chase from appearing as counsel for one of the applicants in a comparative broadcast licensing proceeding. See In re Owens, 104 F.C.C.2d 848 (Rev.Bd.1986), reprinted in Joint Appendix (J.A.) at 2, review denied, 2 F.C.C. Rcd 38 (1987) (Commission Order), reprinted in J.A. at 1. I conclude that an order disqualifying an attorney from appearing as counsel in an FCC proceeding is currently unreviewable in court when the petition for the judicial review is filed by the attorney rather than his client. This conclusion, I believe, is impelled by the reasoning underlying the Supreme Court's decision in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). I therefore vote to dismiss the petition without reaching the merits of Chase's challenge to the Commission order.

I.

In April 1985, Liberty Broadcasting Corporation (Liberty) represented by Chase, a member of the District of Columbia bar, filed an application with the FCC for a new television station in Bakersfield, California. One of the competing applicants in the ensuing comparative broadcast licensing proceeding for the Bakersfield station was Harold L. Mullican. In October 1985, an application filed by Chase on behalf of an individual client for a new television station in Newton, New Jersey was amended to name Newton Television, Inc. (NTI) as the corporate applicant for the Newton station. The amendment, filed by Chase in his capacity as NTI's corporate counsel, indicated that Dr. Samuel Walters was an 18.67% nonvoting stockholder of NTI. On November 21, 1985, Chase, as counsel to Liberty, learned that Mr. Mullican had amended his application in the Bakersfield proceeding to specify a limited partnership, Mullican, Limited Partnership (Mullican), listing Walters as its 70% limited partner. As of the end of November 1985, then, Chase found himself involved in two application proceedings before the FCC--in the Newton proceeding he represented a corporation in which Walters was a shareholder, in the Bakersfield proceeding he opposed a limited partnership in which Walters was a partner.

On May 10, 1986, nearly six months after he became aware of the state of affairs with respect to Walters, Chase, acting on behalf of Liberty, sought to depose Walters in the Bakersfield proceeding. At the beginning of the deposition session, Chase indicated that he represented NTI in the Newton proceeding. Mullican's counsel objected to Chase deposing Walters and Walters refused to testify. On May 12, Chase terminated his representation of NTI but did not withdraw from representing Liberty in the Bakersfield proceeding. On May 14, Mullican filed a motion to disqualify Chase as Liberty's counsel contending that "Chase's simultaneous representation of Liberty and NTI unavoidably involves the firm in representing differing and discordant interests." Motion to Disqualify Counsel to Liberty Broadcasting at p 13, reprinted in J.A. at 32.

Upon hearing argument of Mullican's motion on May 19, the presiding Administrative Law Judge (ALJ) immediately made an oral ruling; he granted the motion and disqualified Chase. On May 22, pursuant to 47 C.F.R. Sec. 1.301(a)(5) (1985), the ALJ issued an order postponing the Bakersfield Liberty appealed the order disqualifying Chase to the Review Board which affirmed the ALJ's ruling. In re Owens, 104 F.C.C.2d 848 (Rev.Bd.1986), reprinted in J.A. at 2. On August 27, 1986 Chase (not Liberty) filed an application for Commission review of the Board's decision. ² During the pendency of Chase's application to the Commission, Liberty, having secured other counsel, entered into a settlement agreement with the other applicants in the Bakersfield proceeding. The agreement was released on October 10, 1986. On December 23, 1986, the Commission denied Chase's application for review; the order to that effect was released on January 8, 1987. In re Owens, 2 F.C.C.Rcd 38 (1987). Chase promptly sought this court's review of the Commission's disqualification order.

proceeding until September 16, 1986; ¹ the following day a memorandum opinion was released explaining the ALJ's disqualification order. The ALJ determined that a conflict of interests existed because Chase could have used confidential information concerning Walters obtained in the course of Chase's representation of NTI in the Newton proceeding to cross-examine Walters in the Bakersfield proceeding; such use, the ALJ maintained, could unfairly harm Mullican in relation to Chase's representation of Liberty.

At oral argument the panel stated its concern about the reviewability of Chase's petition and instructed the parties to submit supplemental briefs responding to the question:

Is the disqualification ruling addressed in the petition a judicially reviewable order under 28 U.S.C. Sec. 2342 and 47 U.S.C. Sec. 402(a)? See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 [105 S.Ct. 2757, 86 L.Ed.2d 340] (1985).

Instruction of January 4, 1988. In their respective briefs, both Chase and the FCC maintain that the disqualification order is judicially reviewable under the cited legislative prescriptions. Mindful of the close consideration that should attend a disposition opposed by both sides to an appeal, I reluctantly conclude that the FCC order disqualifying Chase, under current Supreme Court instruction, is not subject to judicial review in the posture in which the ruling appears before us.

II.

Our authority to review FCC orders is predicated upon 28 U.S.C. Sec. 2342(1) (1982) and 47 U.S.C. Sec. 402 (1982). ³ These statutory provisions empower courts of appeals to review final orders of the FCC. See, e.g., Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d 397, 402 Both the FCC and Chase, however, rely on 47 C.F.R. Sec. 1.301(a)(5) (1986), which affords "counsel on his own behalf" a right of appeal from a presiding officer's disqualification order. Disposition by the Review Board and the Commission of such a disqualification order, both parties maintain, converts the original interlocutory ruling into a final order of the Commission; the order thus finalized, the parties assert, is reviewable by this court under 28 U.S.C. Secs. 2342(1), 2344 (1982) even though the petitioner is counsel proceeding solely for himself on a grievance independent of his client's claim or defense in the proceeding in which the disqualification order was entered. As the FCC puts it, "[w]hen the attorney personally invokes [47 C.F.R. Sec. 1.301(a)(5) ], the agency has effectively allowed the attorney to become a party to a disqualification proceeding with a life of its own.... The question thus becomes whether Chase is a 'party aggrieved' by a 'final order' of the Commission within the meaning of [28 U.S.C. Secs. 2342(1), 2344 (1982) ]." ⁴ FCC Supplemental Brief at 6-7. The Commission answers that question in the affirmative, although acknowledging that its counsel "have not discovered a case with analogous facts." Id. at 7. Nor has the dissent uncovered any such case.

                (D.C.Cir.1975);  Bethesda-Chevy Chase Broadcasters, Inc. v. FCC, 385 F.2d 967, 968 (D.C.Cir.1967).  An order disqualifying an attorney from serving as counsel in a pending trial court proceeding is, when issued, an interlocutory order.   See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985) ("An order disqualifying counsel in a civil case is not a final judgment on the merits of the litigation.").  The same characterization generally attends an order disqualifying an attorney from serving as counsel in a pending administrative proceeding.  See, e.g., 16 C.F.R. Sec. 3.23 (1987) (appeal to Federal Trade Commission from an ALJ's suspension of "an attorney from participation in a particular proceeding" is an "interlocutory appeal");  17 C.F.R. Sec. 10.101 (1987) (appeal to Securities Exchange Commission from an ALJ's suspension of "an attorney from participation in a particular proceeding" is an "interlocutory appeal");  17 C.F.R. Sec. 10.109 (1987) (same);  17 C.F.R. Sec. 12.309 (1987) (same);  47 C.F.R. Sec. 1.301 (1986) (FCC "ruling removing counsel" from a hearing is an "interlocutory ruling").   See also Community Broadcasting of Boston, Inc. v. FCC, 546 F.2d 1022 (D.C.Cir.1976) (characterizing, by analogy to district court orders, agency denial of motion to disqualify as interlocutory and not immediately

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