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11/19/76 Community Broadcasting of v. Federal Communications


November 19, 1976




Wright, Tamm and MacKinnon, Circuit Judges.


Station Corporation, Intervenors

On Motion to Dismiss Petition for Review of an Order of the Federal Communications Commission. 1976.CDC.232



Petitioner Community Broadcasting of Boston, Inc. (Community) seeks judicial review of an order of the Federal Communications Commission denying Community's petition to disqualify the law firm of Pierson, Ball & Dowd from representing intervenor RKO General, Inc. 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. *fn1 We are persuaded that policy considerations disfavoring "piecemeal litigation" *fn2 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 non-appealable 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. *fn3 To effectuate this common purpose, courts have permitted interlocutory appeals under both statutes only in exceptional cases, *fn4 a requirement that partakes of similar meanings in both contexts. *fn5 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. *fn6 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. *fn7 Second, the order must present "a serious and unsettled question," rendering it "too important to be denied review." *fn8 Finally, an immediate appeal must be necessary to preserve rights that would otherwise be lost on review from final judgment. *fn9 In conclusion the Court in Cohen emphasized that the finality requirement should be given "practical rather than a technical construction." *fn10

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. *fn11 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 *fn12 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, *fn13 concluding that, for the sake of judicial economy, *fn14 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 *fn15 and held that denials of motions to disqualify are immediately appealable under the Cohen doctrine. Echoing the concern of several other courts, *fn16 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. *fn17 The Third, *fn18 Fifth, *fn19 Sixth, *fn20 and Tenth *fn21 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. *fn22 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 *fn23 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. *fn24 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 *fn25 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." *fn26

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." *fn27 We then explained that in Yablonski I immediate review was necessary to prevent serious erosion of the legislative policy embodied in the LMRDA. *fn28 We underscored the sui generis nature of Yablonski I and left open the question whether denials of motions to disqualify should generally be subject to immediate review. *fn29 V

We think it appropriate at this time to announce a general rule applicable to all appeals from orders denying motions to disqualify counsel on ethical grounds. *fn30 We decline to adopt the approach taken by the Second Circuit and other circuits that have embraced Silver Chrysler. A rule allowing interlocutory appeals here would provide litigants with yet another device by which to delay final determination on the merits, and would lead the court to divert its attention from the central issues in the case. *fn31

The experience of the Second Circuit since its decision in Silver Chrysler highlights the wisdom of adhering to the finality requirement. As Judge Moore predicted in Silver Chrysler, charges of conflict of interest and motions to disqualify have not abated in that circuit. *fn32 Indeed, because of the fluidity of membership in large metropolitan law firms and the pattern of movement by lawyers between various employment positions, *fn33 an appearance of conflict of interest can easily be alleged in many cases. *fn34 As a result the Second Circuit is now grappling with a deluge of interlocutory appeals that would cast the Court of Appeals in the role of overseer of the ethics of members of the legal profession. *fn35 Although Silver Chrysler purported to fashion an across-the-board principle governing disqualification orders, application of that principle inevitably requires a case-by-case examination of the merits of each order. *fn36 Apparently in response to the resulting flood of interlocutory appeals, the Silver Chrysler decision has been followed in the Second Circuit by a series of cases narrowing the substantive grounds for disqualification. *fn37

We believe our position denying interlocutory appeal of orders refusing to disqualify counsel to be fully consonant with the Supreme Court's holding in Cohen. *fn38 Although "collateral" to the main proceeding, an order denying a motion to disqualify does not, in most cases, implicate any claim of right that will be irreparably lost on appeal from final judgment. *fn39 In the exceptional case, where irreparable harm would indeed result, the movant may petition this court for a writ of mandamus under 28 U.S.C. § 1651 (1970),40 the All Writs Act. This approach will afford the court the flexibility necessary to prevent serious injustice while advising litigants of the court's extreme reluctance to depart from the final judgment rule.41

Accordingly, the motion to dismiss Community's petition for review is granted.

So ordered.

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