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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1060

## Text

Supreme Court, U.S.
cn FILED

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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?

-iii-
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
ee
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 ’

Ee ee ee ees rae © |
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

Se

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

-4-

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

-12-

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0326%3A1. Public record. Not legal advice.