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03/25/88 Law Offices of Seymour M. v. Federal Communications

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


March 25, 1988

LAW OFFICES OF SEYMOUR M. CHASE, P.C., PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS 1988.CDC.117

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Review of an Order of The Federal Communications Commission.

APPELLATE PANEL:

Wald, Ruth B. Ginsburg, and Williams, Circuit Judges. Opinion filed by Circuit Judge Ruth B. Ginsburg. Opinion concurring in the judgment filed by Circuit Judge Williams. Dissenting opinion filed by Circuit Judge Wald.

PER CURIAM DECISION

This petition seeks judicial review of an order of the Federal Communications Commission disqualifying petitioner, an attorney, from continuing to serve as counsel in an ongoing agency proceeding.

Judge RUTH B. GINSBURG and Judge WILLIAMS, each writing separately, join in a judgment dismissing the petition.

Chief Judge WALD dissents from the panel's judgment.

GINSBURG, RUTH B., 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 at 2, review denied, 2 F.C.C. Rcd 38 (1987) (Commission Order), reprinted in J.A. at *fn1. 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 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, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (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. 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 para. 13, reprinted in J.A. at 32.

Upon hearing argument of Mullican's motion on May 19, the presiding Administrative Law Judge immediately made an oral ruling; he granted the motion and disqualified Chase. On May 22, pursuant to 47 C.F.R. § 1.301(a)(5) (1985), the ALJ issued an order postponing the Bakersfield 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.

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. *fn2 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.

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. § 2342 and 47 U.S.C. § 402(a)? See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,

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. 2342(1) (1982) and 47 U.S.C. § 402 (1982). *fn3 These statutory provisions empower courts of appeals to review final orders of the FCC. See, e.g., Illinois Citizens Comm. for Broadcasting v. FCC, 169 U.S. App. D.C. 166, 515 F.2d 397, 402 (D.C. Cir. 1975); Bethesda-Chevy Chase Broadcasters, Inc. v. FCC, 128 U.S. App. D.C. 185, 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 rather than a final order. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (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. § 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. § 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. § 10.109 (1987) (same); 17 C.F.R. § 12.309 (1987) (same); 47 C.F.R. § 1.301 (1986) (FCC "ruling removing counsel" from a hearing is an "interlocutory ruling"). See also Community Broadcasting of Boston, Inc. v. FCC, 178 U.S. App. D.C. 256, 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 appealable).

Both the FCC and Chase, however, rely on 47 C.F.R. § 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. §§ 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, "when the attorney personally invokes

I reject the parties' argument for this reason: we have no discretion to allow an agency, simply and solely by crafting internal rules, to "grant" or "createa cause of action," see Dissent at 526, and thereby enlarge the appellate authority of our court. Leaving aside the FCC's internal rule dispensation, the Supreme Court has instructed us that an attorney situated as Chase is may not obtain court of appeals review of an order disqualifying him from participating in a hearing.

In Richardson-Merrell, 472 U.S. at 426, the Supreme Court held that "orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal." Most significantly for the case at hand, the Court stated that this holding effectively denies a judicial review remedy to "an attorney whose reputation has been egregiously injured by the trial court's disqualification decision," id. at 435, "when the client is satisfied with the judgment obtained by substitute counsel." Id. See also id. at 435 n. 2 (observing that misconduct of a judge "for which no judicial remedy is available" may be made the subject of a plea for an administrative remedy from the Circuit Judicial Council). *fn5 Notably, this court in Koller v. Richardson-Merrell, Inc., 237 U.S. App. D.C. 333, 737 F.2d 1038 (D.C. Cir. 1984), rev'd, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985), while making the decision ultimately reversed by the Supreme Court that a disqualification order in a civil case is subject to immediate (interlocutory) appeal, apparently shared the High Court's view that an attorney has no independent right to appeal a disqualification order at any stage of the proceeding: "In the event that plaintiffs were satisfied with the final verdict obtained by substitute counsel, the disqualified attorneys could be left with no means whatsoever of vindicating their own important interests on appeal from a final judgment." Id. at 1053.

Neither the Supreme Court nor this court elaborated on the conclusion each recited in dictum that no judicial remedy is available to a disqualified attorney independent of the remedies available to his client. See also Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1027 (5th Cir. Unit B June 1981) (asserting, without accompanying explanation, that there is no independent judicial remedy for the disqualified attorney). The passages from Richardson-Merrell just quoted, however, reveal that both courts envisaged the very question presented to us: whether a disqualified attorney can independently seek judicial review of his disqualification after a final disposition of the episode-in-controversy satisfactory to his ex-client. Both the Supreme Court and this court indicated that the question of the appealability of the disqualification order by the attorney himself does not turn on the timing of the appeal. No judicial remedy is available on the solo plea of the disqualified attorney, Richardson-Merrell counsels, whether the attorney seeks immediate (interlocutory) appeal or awaits the conclusion, by final judgment, of the underlying proceeding from which the attorney was disqualified. *fn6

Were agency regulations governing appeals of rulings within the agency permitted to determine the scope of review or the qualification of parties to seek review before the federal courts, *fn7 this anomalous situation would arise: attorneys disqualified in district court proceedings would have no recourse to a judicial remedy while attorneys disqualified in administrative proceedings before agencies such as the FCC that afford counsel an independent right of administrative review would have a judicial remedy. In view of the constant and closer supervisory authority federal courts of appeals exercise over district courts within the circuit, such a dichotomy would be all the more incongruous.

In sum, we are currently counseled by Richardson-Merrell that an attorney cannot independently pursue an appeal from a disqualification order made by a district court. *fn8 We have no more warrant to accord such a right to an attorney held disqualified by an agency's order. Nor can we cede to each particular administrative agency the decision whether an attorney disqualified by that agency will have access to judicial review. The FCC surely can confer an independent right of administrative appeal upon an attorney in Chase's situation. But the Commission cannot thereby confer upon the attorney a right "on his own behalf" to judicial review.

HOLDING

For the reasons stated, I vote to dismiss Chase's petition as unreviewable and I intimate no view on the merits of the Commission's disqualification order. *fn9 IN AGREEMENT

WILLIAMS, Circuit Judge, concurring:

I concur in the prevailing disposition because I believe that the petitioner -- a lawyer whom the Federal Communications Commission disqualified from representation of a party in a single pending matter -- lacks standing to pursue his claim in the courts.

I agree with Judge Ginsburg that Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985), clearly reflects the Supreme Court's judgment that the interests of counsel are entitled to little or no weight in the litigative process. Where the client's interests are still at risk, the case says, a decision to appeal on grounds of wrongful disqualification "should turn entirely on the client's interest." 472 U.S. at 435 (emphasis added). The present context is different, however, in several ways. Settlement of the underlying dispute has removed any chance that counsel's self-protective efforts might jeopardize the client. The settlement also disposes of Richardson-Merrell 's finality concerns -- that interim appellate review would interrupt an ongoing proceeding or bring about piecemeal litigation. But the modest weight that Richardson-Merrell assigns to counsel's interests at least cautions against appellate courts lightly taking on the task of correcting (or editing) procedural decisions made by an agency along the way.

Standing is the normal rubric under which courts assess the character and weight of a claimant's interest, to see whether it is entitled to a judicial hearing. As counsel's reputational interest surely satisfies the constitutional minimum, the inquiry turns to prudential standing and (initially) a determination whether "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970) (emphasis added); see also Clarke v. Securities Industry Association, 479 U.S. 388, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987). No one suggests that Congress sought to "protect" communications lawyers through enactment of the Federal Communications Act, 47 U.S.C. § 151 et seq. (1982). Its provision of employment for hundreds or thousands of lawyers was surely an unintended by-product.

Nor can Congress be said to have intended to "regulate" the conduct of communications lawyers. We must distinguish between those interests that Congress sought to regulate and those that it may have expected the agency to affect in the course of the regulatory process. See Tax Analysts & Advocates v. Blumenthal, 184 U.S. App. D.C. 238, 566 F.2d 130, 144-45 (D.C. Cir. 1977) (drawing a sharp distinction between "zone of interests" and zone of "impact" or "consequence"); Haitian Refugee Center v. Gracey, 257 U.S. App. D.C. 367, 809 F.2d 794, 814 (D.C. Cir. 1987) (in explicating Tax Analysts, court notes that mere congressional recognition that a statute may have an effect on attorneys does not bring them within the statute's zone of interests). It is hard to see how counsel's interests rise above the latter category.

That Congress gave the Commission broad discretion to "conduct its proceedings," 47 U.S.C. § 154(j), hardly brings attorneys within the scope of regulated interests in the usual sense of the term. As we observed in Haitian Refugee Center v. Gracey, "While

Nor does the Commission's provision of an internal right of review seem to me to change the picture. Agency appellate review gives disqualified counsel the benefit of a second opinion and the Commission a chance to develop consistent standards. Both are fine things, but neither helps bring counsel's interests within the zone intended by Congress. While United States v. Erika, Inc., 456 U.S. 201, 72 L. Ed. 2d 12, 102 S. Ct. 1650 (1982), observed in dictum that the Secretary's regulations made clear that a statutory right of non-judicial review extended beyond the literal language of the statute, id. at 207 n. 7, it did not discuss standing or suggest that agency regulations could widen the congressionally determined zone of interests.

A Commission order generally disqualifying an attorney from practice (temporarily or permanently) would pose a completely different issue. Such an order would directly prevent those regulated by the Commission, or intended by Congress to benefit from its regulation, from securing representation by the counsel of their choice. Standing for an attorney seeking review of such an order would thus advance their interests, and the attorney could well be seen as acting as a "private Attorney General." See Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct. 74, 88 L. Ed. 2d 414 (1943); cf. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 84 L. Ed. 869, 60 S. Ct. 693 (1940). But it is hard to see how the core interest holders could have such a derivative interest in the state of the FCC record in its one-time disqualification of Chase.

We have in some cases granted "third party" standing to suppliers of regulated parties where the challenged decision would curtail (or extinguish) their market opportunities. See National Cottonseed Products Ass'n v. Brock, 263 U.S. App. D.C. 345, 825 F.2d 482 (D.C. Cir. 1987); FAIC Securities, Ins. v. United States, 247 U.S. App. D.C. 235, 768 F.2d 352 (D.C. Cir. 1985). Writing for the court in FAIC, then-Judge (now Justice) Scalia appeared to endorse the explanation of Professor Monaghan, Third Party Standing, 84 Colum. L. Rev. 277 (1984), that when either party to a class of transactions objects to a restriction, it is effectively claiming that "the state has advanced no sufficient interest to justify prohibiting this interaction." Id. at 303, quoted in FAIC, 768 F.2d at 360 n.5. But the only transaction the FCC has prohibited -- Chase's representation of a client in one now-settled dispute -- is plainly moot.

Professor Monaghan's analysis of course fits neatly with those cases for which the zone-of-interests test is inapposite because the challenger contends (in effect) that ultra vires acts of the agency have interfered with some common law or possibly constitutional interest. Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 422-23, 86 L. Ed. 1563, 62 S. Ct. 1194 (1942) (broadcasters had standing to challenge regulations purporting "to operate to alter and affect adversely appellant's contractual rights and business relations with station owners" whose licenses would be jeopardized by continuing relations with the broadcasters); see also United States v. Storer Broadcasting Co., 351 U.S. 192, 199-200, 100 L. Ed. 1081, 76 S. Ct. 763 (1956) (similar); Haitian Refugee Center v. Gracey, 809 F.2d at 811 n.13. In the most relevant of these cases, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 95 L. Ed. 817, 71 S. Ct. 624 (1951), a variety of organizations complained that they had been erroneously stigmatized as Communist by the Attorney General acting beyond the scope of his authority and that the stigma had drawn on them an array of adverse private and governmental actions. The Court found injury to a "legally protected right," namely that of "a bona fide charitable organization to carry on its work, free from defamatory statements of the kind discussed." Id. at 140-41. Even if Joint Anti-Fascist sustains standing when the agency's decision is attacked (as it is here) merely for being an erroneous exercise of conceded authority, it surely cannot encompass the interest of every person of whom an agency speaks critically in the course of an official opinion. Cf. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).

Because I do not believe that Congress intended the Commission to regulate the conduct of the communications bar other than incidentally to its conduct of proceedings, or that the Commission has materially invaded any common law or constitutional right of Chase's, I believe that the petitioner's claim fails for want of prudential standing. I therefore concur in dismissal of the action.

MINORITY OPINION

WALD, Chief Judge, dissenting:

The novel issue in this case is whether the Federal Communications Commission's (FCC or Commission) order disqualifying attorney Chase is a reviewable action. Because along with both parties to the case, Chase and the FCC, I conclude that the Supreme Court's rationale in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985), does not apply to deny judicial review of a disqualification order under an agency regulation that grants a cause of action to attorneys in their own right to challenge such disqualifications, I would hold that review is proper under 47 U.S.C. 402(a) and 28 U.S.C. § 2342.

Section 2342 of 28 U.S.C. vests this court with jurisdiction over "all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47." In turn, § 402(a) of the Communications Act of 1934, as amended, reads: "Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter . . . shall be brought as provided by and in the manner prescribed in chapter 158 of Title 28." 47 U.S.C. § 402(a).1 There can be no question that the FCC's disqualification order involved in this case is a final order under Administrative Procedure Act standards.

As Judge Ginsburg's opinion notes, attorney Chase adhered to clear FCC procedure2 and exhausted every channel of internal agency appeal of his disqualification order. The chronology of Chase's internal FCC appeals is brief. On May 19, 1986, the presiding Administrative Law Judge disqualified him for the alleged representation of two opposing interests in the Bakersfield licensing proceeding. Chase's client Liberty appealed the disqualification to the Review Board, which affirmed the ALJ order. In re Owens, 104 F.C.C.2d 848 (Rev. Bd. 1986), reprinted in Joint Appendix at 2.3 Then, on August 27, 1986, Chase invoked his Rule 1.301(a)(5) right (supra) to appeal the removal order. Meanwhile, Liberty retained other counsel, and its dispute -- proceeding independently from Chase's disqualification case -- was settled by agreement on October 10, 1986. The full Commission did not deny Chase's disqualification appeal until January, 1987. In re Owens, 2 F.C.C. Rcd 38 (1987). Chase filed the present appeal against the Commission action as a final order reviewable under 47 U.S.C. § 402(a).

Any suggestion that the Commission's January, 1987 ruling denying Chase's challenge to his disqualification is not "final agency action" is difficult to fathom. Not only had Chase exhausted every stage of agency appeal, but, decisive for an APA "finality" inquiry, the Commission's pronouncement conclusively fixed a legal status on Chase. The Commission made its final determination that Chase had been properly disqualified. Precisely such a fixing of a legal relationship is all that is necessary to demonstrate the finality of an agency order for APA purposes. Reuters Ltd. v. FCC, 251 U.S. App. D.C. 93, 781 F.2d 946, 947 n.1 (D.C. Cir. 1986); Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 220 U.S. App. D.C. 261, 680 F.2d 810 (D.C. Cir. 1982).4

These relevant facts distinguish our case from Richardson-Merrell.5 The Supreme Court's avowed purpose in Richardson-Merrell was to arrest further erosion of the final judgment rule through over-extension of the "collateral order" exception. 472 U.S. at 440. The Court found that granting immediate review of an interlocutory appeal from a disqualification order rendered by the district court in a civil case would not only promote "piecemeal" litigation, but also elevate attorneys' desires for vindication above their clients' interests in proceeding to final judgments in their main cases. Id. at 434-35. Both concerns vanish, however, when an agency regulation provides for a separate cause of action between the disqualified attorney and the agency -- a cause of action independent of an underlying dispute that may be settled prior to final decision on the attorney's petition. Cf. In re Schmidt, 775 F.2d 822, 823 (7th Cir. 1985) (order that is " both independent of the merits and irremediable on appeal" would be immediately appealable under Richardson-Merrell). In Richardson-Merrell, the Court viewed the only "case or controversy" as that between the main parties to the civil case; the attorney was in effect treated as an agent or extension of the client. In this case, however, the FCC has created a cause of action against the agency for attorneys who are disqualified in proceedings before the FCC. A subsequent appeal to the courts clearly involves a genuine justiciable controversy between the attorney and the agency.

Chase's aggrievement by a final FCC order adjudicating his separate complaint against the agency thus places him outside the contours of Richardson-Merrell.6 It does not end the reviewability inquiry, however. Judicial determination may be foreclosed where "statutes preclude judicial review. . . ." 5 U.S.C. § 701(a)(1). If the withholding of judicial review is not express, however, there must be clear and convincing evidence of Congress' intent to deny judicial review. See H.R. Rep. No. 1980, 79th Cong., 2d Sess. 41 (1946) ("To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review."); see also Morris v. Gressette, 432 U.S. 491, 501, 53 L. Ed. 2d 506, 97 S. Ct. 2411 (1977); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). None of the parties, nor my colleagues, has proffered any language from the legislative history of the Communications Act of 1934, 47 U.S.C. 151 et seq. (Communications Act), committing FCC decisions that affect attorneys entirely to the agency's discretion.

Another requisite to a judicial appeal is standing. Chase's standing under 5 U.S.C. § 702 as a person aggrieved by agency action seems quite clear. Moreover, the guidelines specified by the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970), that the party meet the " case or controversy" test of Article III of the Constitution by demonstrating that the agency action caused the petitioner an "inquiry in fact," are satisfied. See also Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (Article III standing requirement incorporates three elements of (a) personal injury, (b) fairly traceable to defendant's allegedly unlawful conduct, and (c) likely to be redressed by requested relief). Also relevant to the standing inquiry is the fact that the interest Chase seeks to protect in this case is within the zone of interests that Congress intended to benefit or regulate through the legislation in question, namely, the Communications Act.

The likelihood of reputational and economic injury to Chase from the disqualification order settles the first concern. Chase has a "cognizable interest" in his professional reputation, see Meese v. Keene, 481 U.S. 465, 107 S. Ct. 1862, 1867, 95 L. Ed. 2d 415 (1987); see also Southern Mutual Help Association, Inc. v. Califano, 187 U.S. App. D.C. 307, 574 F.2d 518, 524 (D.C. Cir. 1977), which has been marred by the FCC's multiple charges of misconduct.7 Reversal of the disqualification order by this court not only would lift this stigma, see id., but also would be likely to redress, at least in part, Chase's economic injury from the disqualification inasmuch as his future earnings, indeed all attorneys' fees, turn on professional reputation. See Model Rules of Professional Conduct Rule 1.5(a)(7), cited and annotated in G. Hazard, The Law of Lawyering (1987) (reputation is factor in determining fees to clients).8

With respect to the second aspect of standing, whether a particular plaintiff is "arguably within the zone of interests" Congress intended to benefit or regulate, the Supreme Court has recently reminded this court that this "zone of interests" test was "not meant to be especially demanding. . . ." Clarke v. Securities Industry Association, 479 U.S. 388, 107 S. Ct. 750, 757, 93 L. Ed. 2d 757 (1987). The Court wrote that "there need be no indication of congressional purpose to benefit the would-be plaintiff," but rather there must simply be a "plausible relationship" between the litigants' interests and the policies embodied in "the overall context" of the statute in question. Id. at 758-59. The relevant statutory context in this case is the broad delegation by Congress to the FCC of adjudication of disputes in the broadcasting industry. Specifically, the promulgation of Rule 1.301, which establishes agency adjudicatory procedures, falls under Congress' charge in the Communications Act that "the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." 47 U.S.C. § 154(j).9 The plain language of the statute implies broad agency discretion; moreover, the Supreme Court has fully endorsed this wide authority. See FCC v. Schreiber, 381 U.S. 279, 14 L. Ed. 2d 383, 85 S. Ct. 1459 (1965). In allowing the FCC wide latitude to organize its internal proceedings, Congress clearly intended that the FCC could regulate attorneys who would appear before the agency. *fn10 Cf. United States v. Erika, Inc., 456 U.S. 201, 207 n.7, 72 L. Ed. 2d 12, 102 S. Ct. 1650 (1981) (Secretary of Health and Human Services' regulations "extends" right of agency review to persons not expressly assured right in statute); Ezell v. Bowen, 669 F. Supp. 141, 143 (S.D. W. Va. 1987) (court impliedly recognizes that agency regulation may give rise to legitimate judicial review, though statute does not extend right of review to non-attorney representative). The FCC has quite reasonably decided that the fairness and efficiency of its proceedings are enhanced when the members of the specialized bar who appear before the agency have the opportunity to challenge disqualification orders. See Removal of Counsel From Hearing Proceeding, 59 F.C.C.2d 1384 (1976). The disqualified attorneys therefore fall within the zone of interests of the Communications Act.

In sum, I fear that Judge Ginsburg overlooks the difference between the FCC administrative proceedings involved in this case and Article III district court proceedings when she expands the Richardson-Merrell reviewability bar to a disqualification decision that is a final agency order, which arose from an underlying dispute that has been settled, yet was properly pursued as a separate cause of action under an agency rule that allows disqualified attorneys an independent route to vindication. I would apply traditional rules of reviewability of agency action and reach the merits of the attorney's appeal.

It strains credulity that a lawyer appearing before an agency may be disqualified in a case on the basis of alleged unethical practices, even misconduct, and, because the client settles the case or refuses to appeal the order, the lawyer forfeits recourse in the courts for the palpable injury to her reputation and future livelihood. Along with both parties to this appeal, I simply do not think that Richardson-Merrell meant to take us so far from notions of fundamental fairness.

I respectfully dissent.


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