Petition for Writ of Certiorari — Hadji-Elias v. Los Angeles County Superior Court

Supreme Court, U.S.

cn FILED

~ 961358 FEB 25 19%,

GFFice OF THE CLER&

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

MARIA M. OCHOA,

Petitioner

Ve

FEDERAL COMMUNICATIONS COMMISSION and

the UNITED STATES OF AMERICA,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen T. Yelverton, Esq.

Counsel of Record

Yelverton Law Firm, P.cC.

120i 30th St., N.W.,

Suite 500

Washington, D.C. 20007

Tel. 202-625-4321

ee

QUESTIONS PRESENTED FOR REVIEW

Whether, consistent with the "due

process" clause of the Fifth Amendment and

consistent with In Re Ruffalo, 390 U.S.

544, 551-552 (1968), and In Re Oliver, 333

U.S. 257, 273-278 (1948), a Federal

agency, without notice to an applicant at

a hearing as to charges of disqualifying

deceit by him or her purportedly occurring

at the hearing, can after the hearing is

concluded raise for the first time charges

of such disqualifying deceit and then

sanction and disqualify that applicant

before the agency based upon the post-

hearing charges of disqualifying deceit,

and whether RKO General, Inc. v. FCC, 670

F.2d 215, 231-236 (D.C. Cir. 1981), is in

conflict with precedent of this Court and

should be overruled to the extent that RKO

would allow disqualification in such

circumstances?

Whether a Federal agency’s reliance

upon "inferences" from hearing testimony

to find deceit or conflicts in testimony

to serve as a basis to impose the sanction

of disqualification against an applicant

is contrary to Steadman v. SEC, 450 U.S.

91, 101 (1981), which requires use of the

"preponderance of [substantial] evidence"

standard to impose such disqualification?

Whether a disqualified applicant

before a Federal agency, who is a minority

female, has standing as a "private

attorney general" to challenge the grant

of a competing applicant in order to raiss=

issues of disparate and discriminatory

treatment by the Federal agency, where it

improperly favored a white male applicant

over the minority female applicant?

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PARTIES TO THE PROCEEDING

The parties to the proceeding in the

U.S. Court of Appeals for the D.C. Circuit

were Maria M. Ochoa, appellant, the

Federal Communications Commission,

appellee, and Foothills Broadcasting,

Inc., intervenor.

Maria M. Ochoa is an individual and

natural person.

QUESTIONS PRESENTED

FOR REVIEW * e g * e 7 ° o - 2 o n ji-ii

PARTIES TO THE PROCEEDING ..... . iii

TABLE OF CONTENTS . . «© es se eo eo eo ivy

TABLE OF AUTHORITIES .....-+. VWi-x

OPiLRiae Dmilee 8 ee ek 8 ke eee 8 ee

Ieee. 6b oe ee Oe ee eee eS

CONSTITUTIONAL PROVISIONS .... +... 2

STATEMENT OF THE CASE ....-+«-+-+-«-s 2

REASONS FOR GRANTING

Tee Wee eek 6 eee ew oe eee eee

(a) No Notice at the Hearing

as to Charges of

Disqualifying Deceit ...... 13

(b) Improper Use of Inferences

from Hearing Testimony to

Find Deceit or Conflicts in

TORTLOONT 6 8 ese ee wee we Ee

-V~=

(c) Standing as a "Private

Attorney General" to

Challenge Disparate and

Discriminatory Actions

by a Federal Agency in

Granting a Competing

RA ORNS 8 be ere Ai a a

COUR LAeee 8 80 eS Ae eee ee Me ee

ORD Pais STA RP FRIES BH I ee

Evansville Skywave, Inc.,

7 FCC Rod 1699 (1992) .. ss %

Policy Statement on

Comparative Hearings,

3. POCAR 303. 44008). s 6 we 0

i] 31 . icati s

Albany, Inc., 6 FCC Rcd

GOOS. 13003). kn 6 ae we

Federa} rr

Bechtel _v. FCC, 957 F.2d 873

(D.C. Cir. 1992) . . . « « « »

Bechtel _v. FCC, 10 F.3d 875

(D.C. Cir. 1993) . . «2 « « «

Cole v. Arkansas, 333 U.S. 196

(1948) o * - ~ « © - — * A o e

Consolo v. FMC, 383 U.S. 607

(1966) oo — — 7. — . . 7 . = °o -

Faulkner Radio, Inc. v. FCC,

557 F.2d 866 (D.C. Cir. 1977)

Garden State Broadcasting Ltd.

Partnership v. FCC, 996 F.2d

$66. 15.0. Dats AES oe Ses

Page(s)

© = 16

3-4, 19

*. eo 23

See

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or ee

. 22-23

ae

25, 30

-vii-

Gray v. Netherland, 116 S.Ct.

gg MRE” 4 RE reg org key ase eee

Honda Motor Co., Ltd. v. Oberg,

a4 &.CE. 2331 (2994) «© « « « 2 «@ © 2S

In Re Oliver, 333 U.S.

Ser CAGES kg Se SS RE, HO

In Re Ruffalo, 390 U.S.

544 (1968) . . . «© © «© « «© 13015, 18-21

Jacksonville Broadcasting

Corp. v. FCC, 348 F.2d 75

(D.C. Cir. 1965) a . a e _ * * us . 25

MCI Te] icati :

v. FCC, 758 F.2d 722

(D.C. Cir. 1985) o o e * o *. = & . . 17

Melody Music, Inc. v. FCC

f

345 F.2d 730 (D.C. Cir. 1965) ... 26

Metro Broadcasting, Inc.

We.kieee 497 U.S. 547 (1990) . . « « - 3

Nati 1 Fed 7 ,

Federal Employees v.

Cheney, 883 F.2d 1038

Cites SS SOD 8 ee ee ai “OES

Radio Athens, Inc. v. FCC

’

401 F.2d 398 (D.C. Cir. 1968) ... 16

-vilii-

Vv. FCC, 758 F.2d 722

(D.€. cir. 1985) . . ° * . * . . . 17

RKO General, Inc. v. FCC,

670 F.2d 215 (D.C. Cir. 1981),

cert. denied, 456 U.S. 927

CRUG) ae a OER ce ak ke os Se

Satellite RB i bi : I

v. FCC, 824 F.2d 1

(0.C. Cir. 1987) ~ i e 7 . ° * * ° oa 16

Steadman v. SEC, 450 U.S. 91

(1981) * a « 7 . . ° - * a + + . o « 22

. alae

greens eng ited

for Separation of Church

and State, 454 U.S. 464 (1982) . .. 26

West Coast Media, Inc. v. FCC,

695 F.2d 617 (D.C. Cir. 1962) ... 39

Williams v. Smith, 399 U.S. 78

(1970) _ a * * ” oe . oa — ~ - o oo = o 19

Disciplinary Counsel,

47a UseB. GAG (39EG5) « « «& «© 0 » ee SF

Page(s)

U.S. ¢ tituti

Fifth Amendment ... 2, 14, 18, 20-21,

27, 30

Miscellaneous

Risbioueee £8006) C5 a 2 eo 6 es oe

sk iol + ord al

(Chronological Order)

Hearing Designation Order,

Sy ee See FE OROS oe ea a ee

Memorandum Opinion and Order,

FCC 91M-1475, rel.

April 26, 1991 . — > — . * oe o oe o _ oe 6

Initial Decision, 7 FCC Rcd

ee ge ee ae ee ee: eee ee

Decision, 7 FCC Rcd 6569

OS RE rarer ae 5 ee

Memorandum Opinion and Order j ’

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Memorandum Opinion and Order,

Se Bek BE £4GO8) ol ceca 6 eB RE

S ] tal Initial Decision,

9 FCC Red 3100 (AiJ 1994) ... . 11-12

-xXx—

Order, 10 FCC Rcd 142

#\ o> ) Soe ee Ge ee lee Ge oe ee eee? ae

Decision, 10 FCC Rcd 4323

ti Pe} eer eee oe ee

Order, 10 FCC Rcd 8746 (1995) .

Order, Case No. 95-1092, filed

June 6, 1995 e + - — . = 7 * o

Order, Case No. 95-1092 and

Consolidated Case No. 95-1444,

filed October 6, 1995 ....

Judgment, filed

September 23, 1996 ......

Orders, filed

November 27, 1996 .....-.

10

12

12

10

12

25

12

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Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

MARIA M. OCHOA,

Petitioner

Ve

FEDERAL COMMUNICATIONS COMMISSION and

the UNITED STATES OF AMERICA,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Judgment and the Orders on

rehearing and hearing in banc of the U.S.

Court of Appeals for the D.C. Circuit

denying the relief requested by the

petitioner, Maria M. Ochoa, are cited in

the Table of Authorities and are included

in the Appendix. The Judgment and Orders

of the D.C. Circuit are unreported.

-2-

JURISDICTION

The D.C. Circuit entered its Judgment

on September 23, 1996, in Case No. 95-1092

and Consolidated Case No. 95-1444, denying

the appeals of Ochoa from the decisions of

the Federal Communications Commission

(App. 121la). Ochoa’s petitions for

rehearing and for hearing in banc were

denied in Orders, filed November 27, 1996

(App. 140a). The jurisdiction of this

Court is timely invoked under 28 U.S.C.

Section 1254 (1). The Solicitor General

and the FCC have been served with copies

of this petition for writ of certiorari.

CONSTITUTIONAL PROVISIONS

The Constitutional provision cited

herein is the Fifth Amendment of the U.S.

Constitution, which provides that no

person shall be deprived of life, liberty,

or property without due process of law.

STATEMENT OF THE CASE

Ochoa’s petition arises out of a

Federal Communications Commission ("FCC")

"comparative" hearing proceeding under the

"standard comparative issue" to select the

permittee for a new FM radio broadcast

frequency in Lenoir, North Carolina. It

is a small and virtually all-white town in

the western part of the state. Ochoa’s

application was designated by the FCC for

hearing for comparison with the

application of Foothills Broadcasting,

Inc. ("Foothills"). Hearing Designation

Order, 5 FCC Rcd 7079 (1990) (App. la-7a).

-3-

Ochoa is a an individual applicant

and an Hispanic female of Cuban origi‘.

She had previously never filed an FCC

"comparative" application, but has

substantial past broadcast experience as a

General Sales Manager and as a salesperson

at several radio stations in North and

South Carolina (App. 24a, 34a-35a).

The FCC proceeding was initiated

pursuant to the Policy Statement on

Comparative Hearings, 1 FCC2d 393 (1965),

which utilized the "integration" of

ownership into management as the primary

criteria for selecting a permittee. In

her “integration" proposal, Ochoa pledged

at the hearing to move to Lenoir with her

family from nearby Charlotte in order to

be the full-time on-site General Manager

of the proposed station. This pledge was

conditioned upon her application being

granted (App. 25a-26a).

The principals of Foothills are local

residents of Lenoir and are white males

(App. 37a-41a). They were not entitled, as

was Ochoa, to a then Congressionally

mandated preference for minority status.

Metro Broadcasting, Inc. v. FCC, 497 U.S.

547, 566 (1990).

Foothills is a corporation with

voting and non-voting stockholders. This

structure was artificially devised to

maximize its "integration" credit. In its

"integration" proposal, John Beall, a

voting stockholder, pledged to be a part-

time on-site Station Manager. Steven

Frank, a voting stockholder, pledged to be

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a full-time on-site News and Program

Director. Wallace Respess, a non-voting

stockholder, made no "integration" pledge

because he is a full-time practicing

attorney. In view of his non-voting

status, this would not normally discount

the "integration" credit for Foothills

(App. 18a-19a, 24a, 37a).

Under the then applicable

"comparative" selection criteria, which

was "integration" of ownership § into

management, Ochoa would have prevailed.

This is based upon her pledge to move to |

Lenoir to be a full-time on-site manager

of the station, along with her minority

and female status and past broadcast

experience. Policy Statement __on

Comparative Hearings, 1 FCC2d 393. In

such circumstances, Foothills could .

prevail if Ochoa was denied "integration"

credit or disqualified because of deceit.

After the hearings were held in the

FCC proceeding under the "standard

comparative issue," the D.C. Circuit ruled

that use of the "integration" criteria was

inherently “arbitrary and capricious" and

therefore unlawful. The FCC’ then

suspended its use. Bechtel _v. FCC, 10

F.3d 875 (D.C. Cir. 1993).

ee e Oc}

During the hearing, Foothills sought

to discredit, under the "standard

comparative issue," Ochoa’s hearing pledge

to move to Lenoir to effectuate her

"integration" proposal. It solicited as

arial

Te a ee ee ivegicd 4e2 bo

-5-

"surprise" witnesses four former co-

workers of Ochoa to show that she would

not move to Lenoir. Foothills’ witnesses

testified as to purported conversations

they had with Ochoa as to her Lenoir

application prior to the hearing. The

conversations were prior to Ochoa making

to the FCC her pledge to move to Lenoir to

effectuate her "integration" proposal, if

her application was granted (App. 25a-30a,

83a, 141a-145a).

Foothills’ "surprise" witnesses were

known to be hostile to Ochoa, were

friendly with each other, and had

discussed their testimony with each other

prior to testifying (App. 102a-103a). One

of the Foothills’ witnesses, Jake Gurley,

had lost his job as General Manager of a

Charlotte radio station only months

earlier because of Ochoa’s allegations

against him of sexual harassment (App.

102a, 106a).

Johnny Jacobs, another Foothills’

"surprise" witness, had been friendly with

a competing applicant and recently had his

salary cut because of Ochoa (App. 103a,

118a). Another Foothills’ "surprise"

witness, Reta Thorn, was hired by

Foothills as an employee and manager of

the Lenoir station after the conclusion of

the FCC hearing (App. 108a).

At the request of Foothills, the ALJ

had issued an ex parte subpoena for Thorn

to testify as a "surprise" witness against

Ochoa under the "standard comparative

issue." Although Foothills had known

-6-

about Ochoa’s anticipated testimony from

depositions several months prior to the

hearing, it did not make its ex parte

subpoena request for Thorn until the eve

of the hearing (App. 141a-145a).

After Foothills’ "surprise" witnesses

testified against Ochoa as to purported

conversations they had with her about her

Lenoir application, the ALJ refused

Ochoa’s request to subpoena Vanessa Keys

to refute their testimony. Keys had been

privy to many of the conversations in

question. According to the ALJ, Keys’

testimony was not needed because the

matter --- Ochoa’s pledge at the hearing

to move to Lenoir --- was a "narrow

comparative point." Memorandum Opinion

and Order, FCC 91M-1475, para. 2, rel.

April 26, 1991 (App. 8a).

At no time during the hearing, did

the ALJ ever state or indicate to Ochoa

that her truthfulness or "character"

qualifications were in issue because she

had given or had admitted to giving

inconsistent, misleading, candorless,

deceitful, or false testimony, or had

changed or revised her testimony or had

concealed material information, which

could result in her being disqualified as

a "liar." In fact, the ALJ stated or

indicated during all stages of the hearing |

that the only matter in issue was the

effectuation of Ochoa’s "integration"

proposal, under the "standard comparative

issue," as to her pledge to move to

Lenoir, if her application was granted

(App. 5a, 8a-9a, 25a, 125a, 141a-151a).

-J=

Foothills never sought the

specification of a disqualifying

character" issue against Ochoa because she

had purportedly given or had admitted to

giving inconsistent, misleading,

candorless, deceitful, or false testimony,

or had changed or revised her hearing

testimony or had concealed material

information. All of the record testimony

and evidence it presented against Ochoa

was under the "standard comparative issue"

(App. 25a, 46a, 5ila, 125a, 141a-151la).

Indeed, Foothills’ ex parte request to the

ALJ to subpoena Thorn as a "surprise"

witness was made under the "standard

comparative issue" (App. 141a-145a).

The Initial Decision, 7 FCC Rcd 1861,

1864-1866, 1869-1870 (ALJ 1992), raised

for the first time issues of deceit

against Ochoa. It acknowledged that she

aid not have notice at the hearing of

charges against her of disqualifying

deceit (App. 47a-48a, 84a, 127a).

Nevertheless, the I.D. disqualified

Ochoa as a "liar" because it inferred that

she had "substantially changed and revised

her hearing testimony," because it

inferred that she purportedly "concealed

material information" at the hearing, and

because, according to the Foothills’

witnesses, she purportedly testified

"falsely." This was with respect to her

"integration" proposal and pledge at the

hearing, under the "standard comparative

issue," to move to Lenoir (App. 25a-33a,

46a-47a, 145a-15la).

~8-

In Decision, 7 FCC Rcd 6569, 6570-

6572 (1992), the Review Board affirmed

Ochoa’s disqualification as a "liar." It

held that specific notice at the hearing

to an applicant by the FCC that they must

testify truthfully, or that’ their

testimony is considered to be untruthful,

is superfluous (App. 58a, 84a).

Ochoa was disqualified on the basis

of the Board’s inference that she had

given "inconsistent and candorless"

testimony at the hearing as to her

conversations with Foothills’ witnesses

with respect to her pledge at the hearing

to move to Lenoir. According to the

Board, Ochoa did not testify "candidly."

Ochoa purportedly "explicitly" testified

that she told co-workers (Foothills’

witnesses) she “would move" to Lenoir, but

at the end of the hearing, it inferred

that she "disavowed" this testimony (App.

5la-6la, 78a-80a, 141a-151a).

In Memorandum Opinion and Order, 8

FCC Red 3135, 3136-3137 (1993), the FCC

affirmed Ochoa’s disqualification as a

"liar." It held that the lack of notice to

Ochoa at the hearing of charges of

disqualifying deceit was a "mere

technicality" (App. 84a). The FCC

disqualified Ochoa based on its inference

that she had given "deceitful" testimony

at the hearing. It inferred that there is

a “significant difference" between Ochoa’s

initial and subsequent hearing testimony

as to her conversations with co-workers

(Foothills’ witnesses) with respect to her

pledge at the hearing to move to Lenoir.

The FCC thus concluded that her initial

testimony was "deliberately misleading"

(App. 8la-92a, 145a-151a).

The conflict or discrepancy which the

FcC inferred from Ochoa’s testimony was

her initial testimony that she "intended

to move to Lenoir" and its

characterization of her later testimony

that she "deliberately lead [Foothills’

witnesses] to believe that there was

little or no chance that she would move to

Lenoir." According to the FCC, Ochoa gave

no indication in her initial hearing

testimony that she had said anything that

could have caused anyone to suppose that

she did not mean to carry out her

"integration" pledge at the hearing to

move to Lenoir (App. 85a-86a, 145a-15la).

The FCC also disqualified Ochoa for

"deceit" on the basis that Ochoa’s hearing

testimony was contradicted by Foothills’

witnesses and she had not refuted their

testimony as to her conversations with

them (App. 86a-92a). However, the FCC

ruled that the ALJ did not commit

reversible error by refusing Ochoa’s

request to subpoena Vanessa Keys who was

privy to the conversations between Ochoa

and Foothills’ witnesses (App. 92a).

The FCC in Memorandum Opinion and

Order, 9 FCC Rcd 56, 57-59 (1993), denied

Ochoa’s petition for reconsideration. It

affirmed its holding that Ochoa had not

been denied "due process" by lack of

notice at the hearing of charges of

disqualifying deceit (App. 97a). The FCC

-10-

affirmed Ochoa’s disqualification based on

"misrepresentations," "outright lies," and

"repeated lies" (App. 93a, 96a-107a).

The FCcC’s holding was based upon

"discrepancies" which it inferred from

Ochoa’s hearing testimony that she had

been "less than candid" in initially

responding to cross-examination questions

about her conversations with Foothills’

witnesses as to whether she intended to

move to Lenoir. According to the FCC,

Ochoa "“conceded" in her concluding

testimony that she had deliberately lead

Foothills’ witnesses to believe that there

was little likelihood that she would ever

quit her job and move to Lenoir (App. 93a,

96a-107a 145a-15l1a).

In Order, 10 FCC Rcd 142 (1995), the

FCC denied Ochoa’s petition for further

reconsideration (App. 118a-119a). Ochoa

timely filed a notice of appeal with the

D.C. Circuit as to her disqualification

and the denial of her application.

In Order, Case No. 95-1092, filed

June 6, 1995, the D.C. Circuit directed

that Ochoa’s appeal be held in abeyance.

This was because no final action had been

taken by the FCC with respect to the

application of Foothills.

niet Kenai © Foothill

The ALJ formally specified

misrepresentation issues against Foothills

as to its ownership and control with

respect to its "integration" proposal

—— eee. .aaQQa—aj7a XRa=:

ee 8 EE ——————————————————EEEE—E—Eeae

-li-

(App. 10a). In Initial Decision, 7 FCC

Red 1861, 1863-1864, 1869, Foothills was

disqualified and its application denied.

This was based on credibility findings by

the ALJ that Wallace Respess, a non-voting

stockholder who was represented not to be

in control, is the actual "moving force"

in the application, is his venture and

under his control, and the voting

stockholders follow his instructions (App.

18a-24a, 44a-46a).

However, the Review Board in

Decision, 7 FCC Rcd 6569, 6575, reversed

the credibility findings of the ALJ and

granted the application of Foothills. It

concluded that the role of Respess had not

been misrepresented because it could

discern no deceptive intent or abusive

conduct (App. 51a, 68a-78a).

The FCC in Memorandum Opinion and

Order, 8 FCC Rcd 3135, affirmed the grant

of Foothills’ application. It held that

the testimony of Respess was not

"fallacious" (App. 8la-82a). However, the

FCC in Memorandum Opinion and Order, 9 FCC

Red 56, 59-61, specified disqualifying

issues as to whether Foothills had

reasonable assurance of access to its

proposed tower site. This included

whether Foothills had attempted to deceive

the FCC in pleadings in response to

Ochoa’s motions to enlarge the issues

(App. 93a, 107a-117a).

In Supplemental Initial Decision

("S.I.D."), 9 FCC Rcd 3100, 3101-3103 (ALJ

1994), these specified issues were

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resolved in favor of Foothills. The

S.I.D. rejected the sworn testimony of

four landowners that they had never given

Foothills any assurance of access over

their property to its proposed tower site.

Their sworn testimony was considered to be

the “pleasure of imagination." The §.I.D.

failed to address the specified issue as

to whether Foothills attempted to deceive

the FCC in responses to Ochoa’s motions.

In Decision, 10 FCC Red 4322 (1995),

the Review Board affirmed the S.I.D. That

decision was affirmed by the FCC in Order,

10 FCC Red 8746 (1995) (App. 120a). Ochoa

timely filed a notice of appeal of the

grant of Foothills’ application. In

Order, filed October 6, 1995, the D.C.

Circuit consolidated that appeal with the

earlier appeal of Ochoa as to her

disqualification.

In Judgment, filed September 23,

1996, the D.C. Circuit denied the appeals

of Ochoa (App. 121la). It held that Ochca

"should have been on notice that her

candor was specifically at issue" (App.

133a). Moreover, because Ochoa had been

disqualified by the FCC, she had no

standing to challenge the grant of the

application of Foothills. In any event,

no evidence of deceit by Foothills was

found. The Judgment was not reported

(App. 137-139).

In Orders, filed November 27, 1996,

Ochoa’s petitions for rehearing and for

hearing in banc were denied. These Orders

were not reported (App. 140a).

-13-

REASONS FOR GRANTING THE PETITION

(a) The petition for writ of

certiorari raises an important

i question of Federal law, as to

whether, consistent with the "due

process" clause of the Fifth

Amendment and consistent with In

Re Ruffalo, 390 U.S. 544, 551-552

(1968) and In Re Oliver, 333 U.S.

257, 273-278 (1948), a Federal

. agency, without notice to an

applicant at a hearing as to

charges of disqualifying deceit

by him or her purportedly

occurring at the hearing, can

after the hearing is concluded

raise for the first time charges

of such disqualifying deceit

purportedly occurring at the

hearing and then sanction and

disqualify that applicant before

the agency based upon the post-

i hearing charges of disqualifying

deceit, and whether RKO General,

Inc. v. FCC, 670 F.2d 215, 231-

236 (D.C. Cir. 1981) is in

conflict with precedent of this

) Court and should be overruled to

;

the extent that RKO would allow

disqualification in such

circumstances?

The action of the FCC in sanctioning

Ochoa by disqualifying her, as a broadcast

applicant, for deceit without giving her

notice at the hearing of the charge of

disqualifying deceit, is a denial of "due

]

s

-14-

process" under the Fifth Amendment of the

U.S. Constitution and is in conflict with

precedent of this Court. In Re Ruffalo,

390 U.S. 544, 551-552 (1968), holds that

where a sanction or penalty is imposed by

an agency, the affected person is entitled

to "procedural due process," which

includes fair notice at the hearing of the

charges of the alleged disqualifying

misconduct.

A person’s right to notice at the

trial of the charges against which he must

defend is well-established. Gray v.

Netherland, 116 S.Ct. 2074, 2083 (1996),

citing, In Re Ruffalo. The charges must

be known before the proceedings or

hearings commence. They become a trap when

after the proceedings or hearings are

underway, they are amended on the basis of

the testimony of the accused. He is thus

given no opportunity to expunge the

earlier statements and start afresh. In

Re Ruffalo, at 551-552.

The failure to afford a person a

reasonable opportunity to defend himself

or herself against the charge of false and

evasive testimony is a denial of "due

process" of law because the right to

reasonable notice of the charges is basic

to our system of jurisprudence. In Re

Oliver, 333 U.S. 257, 273 (1948). "It is

the law of the land that no [person’s]

life, liberty, or property be forfeited as

a punishment until there has been a charge

fairly made and fairly tried."

"No principle of procedural due

-15-

process is more clearly established than

that notice of the specific charge, and a

chance to be heard in a trial of the

issues raised by the charge, are among the

Constitutional rights of every [person]."

Notice of the charges is a "safeguard

essential to liberty in a government

dedicated to justice under law." Cole v

Arkansas, 333 U.S. 196, 201-202 (1948).

Where there is a fundamental lack of "due

process" in a proceeding, this Court will

not hesitate to act. Honda Motor Co.,

Lt4,...v...Gpere, 114 &.Ct. 2333, 2340

(1994).

Ochoa was disqualified and branded by

the FCC as a "liar." However, it failed

to give Ochoa notice at the hearing, or to

confront her at the hearing, with the

charge that she was at risk of the

ultimate sanction of disqualification

because her truthfulness or "character"

qualifications had been put into issue

based upon the testimony which opposing

witnesses had given against her, or based

upon testimony which she had given (App.

8a, 25a, 125a, 141a-15la). As held in In

Re Ruffalo, 390 U.S. at 551-552, the

absence of fair notice as to the precise

nature of the charges deprives a person of

procedural "due process."

Although the FCC held a rebuttal

hearing to consider the testimony of

opposing witnesses who contradicted

Ochoa’s testimony, the ALJ repeatedly

indicated that the matters in question

were with respect to the "standard

comparative issue" (App. 8a, 25a, 125a,

-16-

141a-15la). Thus, Ochoa only had notice

that the effectiveness of her comparative

"integration" proposal to move to the city

of license was in issue, not her candor.

The fact that two opposing witnesses

give testimony which contradicts the other

does not per se raise an issue that one of

them is a "liar" (App. 125a). Under the

"standard comparative" issue, when two

opposing witnesses give contradictory

testimony, the consequence is that one

side will or will not carry its burden of

proof as to the effectuation of its

"integration" proposal (which would not

result in disqualification and would not

necessarily result in denial of an

application). As held in Evansville

Skywave, Inc., 7 FCC Rcd 1699, 1700, para.

14 (1992), the failure of an applicant to

prove its "integration" proposal does not

imply a finding of deceit.

The FCC and the D.C. Circuit held

that Ochoa "should have been on notice

that her candor was specifically in issue"

(App. 127a, 133a). However, an applicant

is not required to guess or to speculate

as to what issues are being considered.

Radio Athens, Inc. v. FCC, 401 F.2d 398,

404 (D.C. Cir. 1968), "full and explicit

notice" by an agency is the “heart of

administrative due process." Satellite

Broadcasting Co., Inc. v. FCC, 824 F.2d 1,

3-4 (D.C. Cir. 1987), if an agency uses

its own interpretation to cut-off an

applicant’s rights, it must give "full"

notice" and not force the applicant to

play "Russian Roulette."

es

-17-

Agencies "may not turn the provision

of notice into a game of bureaucratic hide

and seek." MCI Telecommunications Corp. v.

Poo, $7 9.34 1436, 1142 (D.C. Cir. 1995).

Where "opacity" of the FCC’s statements

renders them susceptible to other

meanings, an applicant will not be bound

by the FCC’s post hoc interpretation. RCA

Global Communications, Inc. v. FCC, 758

P.2€ 722, 731 (D.C. Cir. 1985).

The record shows that Ochoa was not

given such "full and explicit" notice at

the hearing by the Fcc that it was

charging her with disqualifying deceit

(App. 8a, 25a, 125a, 141la-15la). The D.C.

Circuit acknowledged that Ochoa was given

no such actual notice by concluding that

she "should have been on notice that her

candor was specifically in issue." (App.

133a).

The charge of disqualifying deceit

was first raised by the FCC in the Initial

Decision, which was after Ochoa concluded

her hearing testimony and after the

hearing concluded (App. 10a, 25a, 32a-

33a). Thus, Ochoa had no opportunity to

defend, explain, or clarify her hearing

testimony at the time of testifying with

respect to charges of disqualifying deceit

(App. 141a-15la).

After Ochoa testified, the ALJ said

nothing to her about him considering her

concluding testimony to contradict her

earlier testimony, or that she had

admitted or conceded to earlier giving

false or misleading testimony or had

-~18—

willfully concealed material information

(App. 141a-145a). However, “due process,"

as guaranteed by the Fifth Amendment and

by the precedent of this Court, requires

Ochoa to have been confronted by the ALJ

while she was still on the hearing stand

and specifically told that he considered

her testimony to be disqualifying deceit

and that she was charged with this alleged

misconduct.

Such confrontation while on the

hearing stand, would have given Ochoa the

opportunity to explain or to clarify any

apparent or perceived inconsistency

between her initial and her concluding

testimony with respect to charges of

disqualifying deceit. In Re Ruffalo, 390

U.S. at 551-552. The FCC’s failure to

give Ochoa notice at the hearing of the

charge of disqualifying deceit, or to

confront her at the hearing with such

charges, would require that her

disqualification be vacated or reversed.

The fact of an applicant taking an

oath prior to testifying that he or she

will testify truthfully is not notice

which is legally sufficient to inform one

that the testimony that they have given is

considered by the agency to be

inconsistent or untruthful and that they

are charged with disqualifying deceit

(App. 33a). If so, there would never be a

need to give an applicant actual notice of

charges of deceit against then.

However, the precedent of this Court,

of the D.C. Circuit, and of the FCC

-19=

requires that specific notice of being

charged with disqualifying deceit be fully

given to applicants testifying under oath

; before they complete their testimony. In

; Re Ruffalo, 390 U.S. at 551-552; West

Coast Media v. FCC, 695 F.2d 617, 620

(D.C. Cir. 1982), deceit by an applicant

should not be discussed in the absence of

a special designated issue; Policy

Statement __on____ Comparative __ Broadcast

Hearings, 1 FCC2d at 399, there must be a

special designated issue in order to

consider evidence of "bad character" or

deceit.

The record of this proceeding shows

that Ochoa was the victim of a "trial by

ambush." This is demonstrated by the

failure of the ALJ to ever put Ochoa on

. notice at the hearing that her

truthfulness or "character" was in issue

because of the testimony which she had

: given, or to confront Ochoa at the hearing

: with charges of disqualifying deceit and

; allow her to explain her previous

testimony with respect to such

disqualifying charges (App. 32a-33a, 145a-

151la).

Trials are not poker games in which

prosecutors can conceal their cards until

played. Williams v. Smith, 399 U.S. 78,

82 (1970). As noted in Zauderer v. Office

of Disciplinary Counsel, 471 U.S.626, 655,

n. 18 (1985), what was "particularly

offensive" in In Re Ruffalo was the

agency’s change of the charges against the

petitioner, such that the very evidence

put on by the petitioner in defense of the

-20-

original charges became inculpatory under

the revised charges. Thus, the original

charges functioned as a "trap," for they

lulled the petitioner into presenting

evidence that resulted in disqualification

under charges not then made by the agency.

id., 390 U.S. at 551, n. 4.

This same "offensive" and

unconstitutional tactic was used by the

FCC against Ochoa. It took testimony

given by Ochoa to demonstrate her

"integration" pledge under the "standard

comparative" issue and then after the

hearing concluded made it inculpatory for

purposes of disqualifying her, without

notice to her at the hearing that she was

charged with disqualifying deceit based

upon her testimony under the "standard

comparative issue" (App. 8a, 25a, 32a-33a,

125a, 141la-15la).

Both the FCC and the D.C Circuit

relied upon RKO General, Inc. v. FCC, 670

F.2d 215, 231-236 (D.C. Cir. 1981), cert.

denied, 456 U.S. 927 (1982), to disqualify

Ochoa (App. 58a, 100a, 131a-132a). To the

extent that this decision allows a Federal

agency to disqualify an applicant without

full and explicit notice at the hearing as

to charges of disqualifying deceit, it

should be overruled as in conflict with

the Fifth Amendment and as in conflict

with precedent of this Court in In Re

Ruffalo, 390 U.S. 544, 551-552, and in In

Re Oliver, 330 U.S. 257, 273-278.

RKO General, Inc. v. FCC, 670 F.2d at

235-236, moreover allows summary

-21-

disqualification where the petitioner’s

conduct was committed directly before the

agency and where a further trial or

hearing would presumably be an unnecessary

use of agency resources. However, In Re

Oliver, 333 U.S. at 260, n. 2, 274-276,

prohibits the use of summary imposition of

sanctions, even where the petitioner’s

misconduct was committed before the court

(except where there is an open threat to

the order of the court which must be

instantly suppressed) and even where

another trial would presumably be an idle

gesture. Thus, RKO General, Inc. v. FCC,

670 F.2d at 235-236, should be overruled

to the extent that it is in conflict with

the Fifth Amendment and with precedent of

the Court.

Accordingly, it is requested that

certiorari be granted. An important

question of Federal law is raised which

requires resolution by the Court. This

question is whether the action of the FCC

in sanctioning and disqualifying Ochoa

without notice to her at the hearing of

the charge of disqualifying deceit is in

conflict with fundamental principles of

"due process," as required by the Fifth

Amendment, and is in conflict with In Re

Ruffalo, and with In Re Oliver? Moreover,

an important question of Federal law is

raised as to whether certain aspects of

RKO Genera], Inc. v. FCC, 670 F.2d 215,

231-236, are in conflict with the Fifth

Amendment and with In Re Ruffalo and In Re

Oliver, and thus whether RKO should be

overruled in this respect?

-22-

(b) The petition for writ

certiorari raises an important

Federal question of law as to

whether a Federal agency’s

reliance upon "inferences" from

hearing testimony to find deceit

or conflicts in testimony to

serve as a basis to impose the

sanction of disqualification

against an applicant is contrary

to Steadman v. SEC, 450 U.S. 91,

101 (1990), which requires use

of the "preponderance of

[substantial] evidence" standard

to impose such sanction?

The petition for writ of certiorari

raises an important question of Federal

law as to whether the FCC’s reliance upon

"inferences" from Ochoa’s hearing

testimony to find deceit by her or

conflicts in her testimony to serve as a

basis to impose the sanction of

disqualification against her is contrary

to Steadman v. SEC, 450 U.S. 91, 101

(1981). That precedent requires use of

the "preponderance of [substantial ]

evidence" standard.

As held in Steadman, in order for a

Federal agency to impose sanctions, such

as disqualification for deceit, it must

demonstrate misconduct by a "preponderance

of [substantial] evidence," or weight of

the evidence, and not by the minimal

"substantial evidence" standard. Steadman

v. SEC, id. "Substantial evidence" is

something less than the weight of the

evidence. Consolo v. FMC, 383 U.S. 607,

-23-

620 (1966).

The FCC has acknowledged that in

disqualifying an applicant for deceit it

must demonstrate that it is more likely

than not that an applicant engaged in such

misconduct. It may not merely “infer"

that such misconduct occurred. Silver

Star Communications-Albany, Inc., 6 FCC

Red 6905, 6906, para. 18 (1991). However,

in spite of a clear legal mandate from

this Court to use the "preponderance of

[substantial] evidence" standard to impose

the ultimate sanction of disqualification

and the FCC’s own acknowledgement of that

standard, the FCC used the less exacting

"substantial evidence" standard to

disqualify Ochoa.

The decisions of the FCC are

improperly based upon "inferences" from

Ochoa’s hearing testimony which can only

be justified under the less exacting

"substantial evidence" standard (App.

132a). As an example, the FCC made the

inference from Ochoa’s hearing testimony

that she had told opposing witnesses of

her "commitment" to move to the city of

license if she was granted the license

(App. 123a, 145a-151a). The FCC also made

the inference from Ochoa’s_ hearing

testimony at the initial hearing that she

told opposing witnesses she would move to

the city of license and later "disavowed"

this testimony (App. 129a, 145a-15la).

The D.C. Circuit suggests’ that

Ochoa’s hearing testimony contains

"irremediable" conflicts, which mean

-24-

impossible to correct or to repair (App.

13la). Webster’s University Dictionary

(1984). However, purported conflicts

based upon inferences from hearing

testimony are by definition simply not

irremediable (App. 145a-15la).

Accordingly, certiorari should be

granted. An important question of Federal

law is raised which requires resolution by

the Court. This question is whether the

action of the FCC in disqualifying Ochoa

based merely on "inferences" from her

hearing testimony, to make findings of

deceit or to find conflicts in her

testimony, is directly contrary with

precedent of this Court mandating the use

of the "preponderance of [substantial]

evidence standard of proof by a Federal

agency, and not use of the less exacting

"substantial evidence" standard, to impose

the ultimate sanction of disqualification

against an applicant?

-25-

(c) The petition for writ of

certiorari raises an important

question of Federal law as to

whether a disqualified applicant

before a Federal agency, who is a

minority female, has standing as

a "private attorney general" to

challenge the grant of a

competing applicant in order to

raise issues of disparate and

discriminatory treatment by the

Federal agency, where it

improperly favored a white male

applicant over the minority

female applicant?

The Judgment of the D.C. Circuit

denied Ochoa standing to challenge the

grant of the application of Foothilis.

This was because she had been disqualified

by the FCC (App. 137-139).

According to the D.C. Circuit, as a

disqualified applicant, Ochoa can

challenge the grant of the application of

Foothills only if the FCC’ applied

disparate standards to their applications

with respect to the same conduct arising

out of the same factual circumstances.

Here, Ochoa and Foothills engaged in

similar conduct, but arose from different

factual circumstances (App. 137a~-139a).

The D.C. Circuit’s holding was based upon

Garden State Broadcasting L.P. v. FCC, 996

F.2d 386, 395 (D.C. Cir. 1993), citing,

Jacksonville Broadcasting Corp. v. FCC,

348 F.2d 75, 79 (D.C. Cir. 1965).

However, such an unduly narrow and

-26-

constricted holding limiting standing is

in conflict with broad principles

enunciated by the Court allowing standing.

Valley Forge __ Christian College _v.

United £ : i eC} ;

and State, 454 U.S. 464, 472 (1982), holds

that standing can be shown by a petitioner

demonstrating (1) some actual or

threatened injury that (2) fairly can be

traced to the challenged action and (3) is

likely to be redressed by a favorable

decision.

Ochoa’s application is in competition

with the application of Foothills. Thus,

she has been injured by the denial of her

application and the grant of Foothills’

application by the FCC based = upon

disparate standards and discriminatory

treatment.

Whether the FCC applied disparate

standards to the same misconduct arising

out of the same factual circumstances and

engaged in by both parties is not

dispositive of the issue of unequal

treatment. As recognized by Melody Music,

inc. Vsa roG, 345 F.2a 730, 732-733 (D.C.

Cir. 1965), the use of disparate legal

standards with respect to any aspect of

the same proceeding requires that the

decision be vacated or reversed.

In its "comparative hearing"

proceeding, the FCC engaged in disparate

and discriminatory treatment of Ochoa, an

Hispanic female, in comparison to

Foothills, a competing applicant composed

of white males, and thus engaged in racial

-~27=-

and gender discrimination in violation of

the Fifth Amendment. The FCC gave more

lenient treatment to Foothills, which was

found to have made disqualifying

misrepresentations with respect to its

"integration" proposal. Such disparate

and discriminatory treatment is a denial

of "due process."

In Initial Decision, 7 FCC Rcd 1861,

1863-1864, 1869, the ALJ disqualified

Foothills because it misrepresented the

role of one of its principals as to its

"integration" proposal. In so doing, the

ALJ made credibility findings with respect

to the testimony of Foothills’ principals

and found a logical motive to deceive ---

to maximize its "integration" credit ---

the same motive that the ALJ found as to

Ochoa (App. 18a-24a, 44a-46a).

The disqualification of Foothills was

based upon a properly and timely specified

issue charging it with misrepresentation.

Thus, there is no question that it had

notice at the hearing of the charge of

deceit (App. 10a).

In Decision, 7 FCC Rcd 6569, 6575,

the Review Board reversed the credibility

findings by the ALJ and found Foothills

qualified. According to the Board, it

could find no evidence of deceptive intent

or abusive conduct by Foothills. The FCC

affirmed this ruling (App. 69a-77a, 8la-

82a, 137a).

However, in a conflict between the

factual and credibility findings of an ALJ

-28-

and that of the Review Board, the FCC owes

its deference to the ALJ who actually

heard the testimony. Bechtel _v. FCC, 957

F.2d 873, 877-878 (D.C. Cir. 1992);

Faulkner Radio, Inc. v. FCC, 557 F.2d 866,

870 (D.C. Cir. 1977), credibility

resolutions by ALJ’s are entitled to great

weight on judicial review, unless

predicated upon material errors of law.

In the case of Foothills, the ALJ’s

factual and credibility findings were not

contradicted by other record evidence and

were not predicated upon a material error

of law. The FCC simply choose to ignore

the ALJ’s findings. This improper action

by the FCC was the only way in which it

could grant Foothills’ application.

In the case of Ochoa, the ALJ’s

factual and credibility findings were

based upon a material error of law. The

error of law was the ALJ’s failure to give

Ochoa notice at the hearing of the charge

of disqualifying deceit based upon the

testimony that she had given or others had

given against her. This error of law was

the only way in which the FCC could deny

Ochoa’s application.

The FCC thereby improperly

stigmatized as a "liar" an Hispanic female

applicant, with extensive broadcast

experience, seeking to be awarded an FM

radio broadcast permit in a small and

virtually all-white town. The FCC’s post

hoc characterization of Ochoa as a "liar"

resulted from her pledge at the hearing to

move to Lenoir, the city of license, with

-29-

her husband and children.

Thus, the FCC violated fundamental

"due process" rights of Ochoa. It engaged

in racial and gender discrimination by

improperly favoring an applicant composed

of local white males over an out-of-town

Hispanic female.

The D.C. Circuit arbitrarily cut-off

Ochoa’s right to raise these "due process"

issues of disparate and discriminatory

treatment based upon a narrow. and

hypertechnical view of standing.

Moreover, the D.C. Circuit ignored its

long-established precedent allowing

standing by a "disappointed" applicant to

act as a "private attorney general" in

order to prevent the granting of an

application through improper or "illegal"

agency action. National Federation of

Federal Employees v. Cheney, 883 F.2d

1038, 1052 (D.C. Cir. 1989).

Nothing could be more improper or

"illegal" by a Federal agency than to

engage in racial and gender

discrimination. "Disappointed" applicants

acting as "private attorney generals" can

be an effective instrument to expose and

prevent improper or illegal actions by

Federal agencies.

Accordingly, certiorari should be

granted. An important question of Federal

law is raised which requires resolution by

this Court. This question is whether a

disqualified applicant before the FCC, who

is a Hispanic female, has standing as a

-30-

"private attorney general" to raise issues

of disparate and discriminatory treatment

by the FCC, where it improperly favored an

applicant composed of white males over her

application? Moreover, the question is

raised as to whether Garden State

Broadcasting L.P. v. FCC, 996 F.2d 386,

395, should be overruled to the extent it

unduly limits standing by applicants to

challenge improper or illegal FCC actions?

CONCLUSIONS

WHEREFORE, in view of the foregoing,

the Court is urged to grant Ochoa’s

petition for certiorari and review this

case because of conflicts with the "due

process" clause of the Fifth Amendment and

conflicts with precedent of this Court.

Moreover, this case raises an important

Federal issue as to standing by a "private

attorney general" to challenge Federal

agency actions, which requires consistent

application by the Federal courts.

Respectfully submitted,

MARIA M. OCHOA

By:

Stephen T. Yelverton, Esq.

Counsel of Record

Yelverton Law Firm, P.C.

1101 30th St., N.W.,

Suite 500

Washington, D.C. 20007

Tel. 202-625-4321