[00:00:00] Speaker 03:
1029, Alpine, PCS versus United States.

[00:00:59] Speaker 03:
All right, Mr., is it Patis?

[00:01:01] Speaker 03:
How do I say your name?

[00:01:03] Speaker 01:
Any way you like, Judge Patis.

[00:01:05] Speaker 03:
How do I say your name?

[00:01:06] Speaker 01:
Norm Patis, Judge.

[00:01:07] Speaker 03:
Say the last name again.

[00:01:08] Speaker 03:
Patis.

[00:01:09] Speaker 03:
Patis.

[00:01:09] Speaker 03:
Mr. Patis, please proceed.

[00:01:11] Speaker 01:
Thank you.

[00:01:11] Speaker 01:
Please support.

[00:01:12] Speaker 01:
My name is Norm Patis.

[00:01:13] Speaker 01:
I'm here on behalf of Alpine PCS.

[00:01:15] Speaker 01:
I'd like to begin with the second issue that we briefed, and that is the issue relating to the takings claim

[00:01:23] Speaker 01:
It is our view that the takings claim was timely filed because it was just within a day, but within six years of the final agency decision.

[00:01:33] Speaker 01:
And I think what's significant here is the teaching of the Williamson County case, which distinguishes ripeness from exhaustion.

[00:01:42] Speaker 01:
The court well knows that in the 1983 context, Patsy versus Board of Regents says there's no exhaustion requirement.

[00:01:49] Speaker 01:
Practitioners in takings claims were caught by surprise when the court said, but there is a rightness requirement as to takings.

[00:01:55] Speaker 01:
And there is rightness for sound reasons, sounding in the Fifth Amendment.

[00:02:00] Speaker 01:
As Williamson teaches in Hodel versus Virginia Mining, what's involved in a Fifth Amendment claim is just compensation.

[00:02:07] Speaker 03:
So are you arguing that there was no rightness here of your takings case?

[00:02:12] Speaker 01:
Until January of 2010, correct, the claim was not right.

[00:02:17] Speaker 01:
the takings claim was not ripe until the FCC issued its final decision.

[00:02:21] Speaker 01:
I believe that date was January 5, 2010.

[00:02:24] Speaker 01:
The claims commission case was filed January 4, 2016.

[00:02:27] Speaker 03:
How do you really reconcile that with Martinez and its statement about permissive administrative remedies?

[00:02:37] Speaker 03:
And let me be really clear to understand where I'm focusing.

[00:02:42] Speaker 03:
You asked for a debt restructuring.

[00:02:44] Speaker 03:
You asked for a waiver.

[00:02:45] Speaker 03:
Your client did.

[00:02:46] Speaker 03:
These are permissive administrative remedies you are seeking, as opposed to compulsory administrative remedies, which must necessarily play out for exhaustion purposes.

[00:02:58] Speaker 03:
For permissive administrative remedies, which I think these clearly are, why doesn't Martinez govern?

[00:03:04] Speaker 01:
It seems to me that with respect to Martinez, in 47 CFR 1429A, it talks about what a party may do if it seeks relief.

[00:03:14] Speaker 01:
If it then wants to go on to the court,

[00:03:16] Speaker 01:
47 CFR 1.115 case that it is required.

[00:03:22] Speaker 01:
The parties shall get that relief if they intend to go to court.

[00:03:25] Speaker 01:
So while it may have been permissive to choose to take that course, it still puts before the agency the question of what to do with the request.

[00:03:35] Speaker 01:
Put another way, Judge Moore?

[00:03:36] Speaker 03:
Yes, but Martina says when you have a permissive administrative remedy, the plaintiff is not required to exhaust that.

[00:03:45] Speaker 03:
And it says, as a corollary of that rule, I'm quoting, the court has held that a plaintiff's invocation of a permissive administrative remedy does not prevent the accrual of the plaintiff's cause of action, nor does it toll the statute of limitations pending exhaustion of that administrative remedy.

[00:03:59] Speaker 03:
I don't see why that's not directly on point in this case, because what we're talking about today isn't rightness, it's accrual date.

[00:04:05] Speaker 03:
So I don't know why Martinez doesn't read exactly clearly and completely perfectly on this case.

[00:04:11] Speaker 01:
In a 1983 context, a litigant arguing that would be thrown out without relief because the rule in Williamson and the rightness requirement is that you must avail yourself of such process as you can in order to bring a Fifth Amendment claim because of the just compensation requirement.

[00:04:31] Speaker 01:
I didn't cite the law review articles in the brief because I didn't think this was an occasion to address that.

[00:04:37] Speaker 01:
But this court is well aware, I'm sure, of the conundrum that 1983 litigants faced with respect to rightness claims.

[00:04:43] Speaker 01:
You must avail yourself of such claims as state law permits in a state taking fine.

[00:04:50] Speaker 01:
By the time you have litigated each and every issue fully and fairly, everything you want to bring in a 1983 claim is raised judicata, because the issues have already been decided.

[00:04:58] Speaker 01:
And there is no effective federal form.

[00:05:00] Speaker 03:
I guess I'm confused.

[00:05:02] Speaker 03:
I mean, I just feel like if this is the rule,

[00:05:06] Speaker 03:
as you're articulating it, it would allow for a lot of gamesmanship to delay, delay, delay, delay the accrual date of the claim.

[00:05:14] Speaker 03:
You could file a motion for waiver.

[00:05:18] Speaker 03:
And then when that's denied, you could file a motion requesting debt restructuring.

[00:05:23] Speaker 03:
And then you could maybe ask them to reconsider both of those motions.

[00:05:26] Speaker 03:
I mean, just in this case, it stretched out over so many years.

[00:05:31] Speaker 03:
You knew that your

[00:05:33] Speaker 03:
licenses were taken, they auction them off and gave them to someone else over your objections.

[00:05:39] Speaker 03:
So I'm just really confused by why, I guess I don't understand this distinction that you're drawing between Williamson and Martinez for accrual date purposes.

[00:05:51] Speaker 01:
I'm sorry, if I was unclear, let me try again, if I may.

[00:05:53] Speaker 01:
Exhaustion is not the same as rightness.

[00:05:56] Speaker 01:
Rightness is a separate legal doctrine.

[00:05:59] Speaker 01:
Take a look at Patsy versus Board of Regents, where the Supreme Court explicitly held that the two were analytically distinct.

[00:06:08] Speaker 01:
And they're analytically distinct in a Fifth Amendment context to avoid gamesmanship.

[00:06:12] Speaker 01:
We don't want to evoke the takings clause and the just compensation requirement unless there's been a full review of what's beneath.

[00:06:18] Speaker 01:
So the gamesmanship that the Williamsons and the Virginia and the Hodel decision

[00:06:24] Speaker 01:
eliminate is sitting on a claim and trying to perfect it in another forum before there's a full record before that forum.

[00:06:30] Speaker 01:
So we don't think Martinez applies in a rightness case.

[00:06:33] Speaker 01:
We think it applies in an exhaustion case.

[00:06:36] Speaker 01:
Implicit in the question you've asked me, Judge Moore, I gather, is your disagreement with Judge Letow on whether exhaustion was mandatory or permissive here, or whether the course the plaintiff sought was mandatory or permissive.

[00:06:48] Speaker 01:
We took the position it was mandatory.

[00:06:50] Speaker 01:
But even if we're wrong on Martinez, we're right on Williamson.

[00:06:54] Speaker 01:
And I don't see this court having squared the rightness jurisprudence with the exhaustion jurisprudence.

[00:06:59] Speaker 01:
So we've raised that claim here, because we think under Williamson, we did exactly what was required.

[00:07:06] Speaker 01:
Look, Northwest Louisiana, for example.

[00:07:10] Speaker 00:
Why didn't you file a lawsuit right after the licenses were taken back and re-auctioned?

[00:07:17] Speaker 00:
I mean, at that time,

[00:07:19] Speaker 00:
Arguably, if we're going to set up all the different points, different dates where accrual could have happened, that stands out, that you lost your licenses.

[00:07:29] Speaker 00:
They've been notched off.

[00:07:31] Speaker 00:
They've been sold to somebody else.

[00:07:33] Speaker 00:
Why did you file a lawsuit then, just to preserve your claim?

[00:07:38] Speaker 01:
There were various suits, and this case has been in and out of one quarter after another.

[00:07:43] Speaker 01:
This will probably be the last one, unless we're sent back.

[00:07:47] Speaker 01:
But I think what happened is the auction was won in 96.

[00:07:52] Speaker 01:
New regulations were promulgated by the FCC in 98.

[00:07:57] Speaker 01:
Alpine was asked to restructure.

[00:08:00] Speaker 01:
It chose not to.

[00:08:02] Speaker 01:
It then went ahead and paid on its licensees until it got involved in some financial difficulties in 2001, incident in 9-11.

[00:08:11] Speaker 01:
Then the FCC changed the playing field and evoked an automatic cancellation.

[00:08:17] Speaker 00:
I'm sympathetic that the playing field was changed.

[00:08:20] Speaker 00:
Right.

[00:08:22] Speaker 00:
But the record shows that along the way, you were taking steps to preserve the claim.

[00:08:29] Speaker 00:
You were filing before the FCC.

[00:08:32] Speaker 00:
You were doing everything that a prudent, reasonable licensee would do in order to preserve their interest in the licenses.

[00:08:39] Speaker 00:
Except when it came to the time that your licenses were re-auctioned, you didn't do anything.

[00:08:44] Speaker 01:
Well, I don't think that's true.

[00:08:46] Speaker 01:
In 2007, there was pending before the Telecommunications Bureau the motion for waiver and so forth.

[00:08:54] Speaker 01:
In 2002, the FCC said, you can go ahead and operate on these licenses until there is a decision.

[00:09:00] Speaker 01:
In 2008, these were sold out from underneath.

[00:09:03] Speaker 01:
And my client then went and declared these as pre-petition assets.

[00:09:08] Speaker 01:
And the bankruptcy court disagreed.

[00:09:09] Speaker 01:
The DC Circuit disagreed.

[00:09:11] Speaker 01:
And so they waited for the 2010 decision.

[00:09:14] Speaker 01:
In 2010, they then went to the choice of forum, FORA, that the FCC directed them to, only to have the FCC claim, wait, we can't waive sovereign immunity, only Congress can.

[00:09:24] Speaker 01:
By the time that issue worked its way through the appellate courts, it's now 2014.

[00:09:28] Speaker 01:
So there was a two-year hiatus.

[00:09:30] Speaker 01:
Could that takings claim have been raised any time after 2010?

[00:09:34] Speaker 01:
I believe it could have.

[00:09:36] Speaker 01:
The question before this court was not whether it was efficaciously raised, but whether it was timely raised.

[00:09:41] Speaker 01:
And under Williamson County, I think that they had until the stroke of midnight on the last day they filed the claim.

[00:09:47] Speaker 01:
I don't see a decision from this circuit that eliminates the ripeness requirement.

[00:09:53] Speaker 01:
And indeed, I don't think this circuit can do so under Williamson County.

[00:09:56] Speaker 02:
Can I ask what precisely was at issue in your, let's call it, appeal to the commission of the wireless bureau's dual rejections

[00:10:10] Speaker 01:
There were several issues, and if this case ever went to trial, I think a fact finder and the court would have to reach six issues, and I'll call them issues, sometimes a fact, issues of law, in fact, and issues of law.

[00:10:22] Speaker 01:
What regulations actually applied at the time the licenses were taken?

[00:10:26] Speaker 01:
Were they the ones that were the then existing regulations?

[00:10:29] Speaker 02:
What relief was being requested from the commission?

[00:10:35] Speaker 01:
The licenses themselves, initially.

[00:10:38] Speaker 01:
But in the claims court, we're now looking for money damages because those licenses have long since been given away in 2008.

[00:10:44] Speaker 01:
So we're not exactly asking for the commission to take them back.

[00:10:49] Speaker 01:
But Alpine, as is pled, invested some $90 million in reliance on what the FCC had to say.

[00:10:55] Speaker 01:
When the FCC auctioned the license out from beneath them, they got a $5.3 million asking price.

[00:11:01] Speaker 01:
So there's $95 million at least that can be argued on a breach of contract claim, which has nothing to do

[00:11:08] Speaker 01:
with licensure authority at the FCC.

[00:11:11] Speaker 01:
So I was looking for an occasion to get into the first issue, and here we are.

[00:11:14] Speaker 01:
Is this a 402b5 claim?

[00:11:17] Speaker 02:
Can I ask this?

[00:11:18] Speaker 02:
Yes, sir.

[00:11:18] Speaker 01:
I'm sorry, Judge.

[00:11:19] Speaker 02:
No, no, maybe this might be more appropriate for the government.

[00:11:22] Speaker 02:
But pursuing is something that I guess at least Judge Raina was just talking about.

[00:11:27] Speaker 02:
If you had filed a court of claims taking suit while the FCC proceeding was pending,

[00:11:35] Speaker 02:
Would there or would there not have been a Section 1500 objection from the government?

[00:11:41] Speaker 01:
I think there might have been.

[00:11:42] Speaker 01:
But more fundamentally, I think that there would have been a Williamson County claim, that it wasn't right for adjudication.

[00:11:48] Speaker 01:
I don't think we could have made a Fifth Amendment claim until January of 2005.

[00:11:54] Speaker 02:
And you read Williamson.

[00:11:55] Speaker 02:
Williamson itself was a case in which I think the facts were that whether the claimant

[00:12:04] Speaker 02:
could even be permitted to use the land in such a way as to avoid there having been a pen central taking was still open.

[00:12:16] Speaker 02:
It wasn't, yes, we know there's a pen central taking, but there's still a remedy for money.

[00:12:23] Speaker 01:
Well, yes and no.

[00:12:24] Speaker 01:
I mean, I think the issue in any Williamson-related claim is, what is the relief?

[00:12:29] Speaker 01:
And as Williamson stresses that what's important in this line of jurisprudence is not the takings claim so much as the just compensation.

[00:12:37] Speaker 01:
That's what drives it.

[00:12:39] Speaker 01:
So at any point up until 2010, the FCC could have given a waiver.

[00:12:43] Speaker 01:
It could have given a refund.

[00:12:44] Speaker 02:
Has the Supreme Court said that?

[00:12:46] Speaker 02:
That is, has it gone beyond Williamson and said, even though a piece of property has been taken from you, given to somebody else, you cannot get it back as long as you have a remedy for money

[00:13:00] Speaker 02:
then the takings claim is not right.

[00:13:03] Speaker 01:
No, it hasn't used those exact terms, sir.

[00:13:05] Speaker 01:
But what it has said is a claim is not right until the government entity charged with implementing the regulations has reached a final decision.

[00:13:12] Speaker 01:
That's at 473 US 186.

[00:13:14] Speaker 01:
This circuit in 2006 in the Northwest Louisiana case said all events which fix the government's liability must, I've inserted the must, have occurred.

[00:13:26] Speaker 01:
And so it's our view that...

[00:13:29] Speaker 02:
fix the existence of a liability, not the amount of the liability.

[00:13:34] Speaker 01:
That may be where this creates an issue of first impression.

[00:13:36] Speaker 02:
And that's, I guess, partly why I was asking about precisely what was pending before the FCC.

[00:13:42] Speaker 02:
If what was pending was request for something that could not conceivably have been just compensation for the irrevocable loss of the license, which we will assume it was irrevocable after

[00:13:58] Speaker 02:
2008 when it was in somebody else's hands, then there was a liability that was fixed even if you might have come away from the FCC with something partially compensatory.

[00:14:10] Speaker 02:
That's why I'm interested in whether full compensation was actually non-speculatively possible, was part of the request in

[00:14:21] Speaker 02:
the appeal to the Commission from the Wireless Bureau.

[00:14:25] Speaker 01:
The FCC lacks the statutory authority to give monetary damages for the investment that Alpine put into it.

[00:14:31] Speaker 02:
Something else, as you say, might have been compensatory.

[00:14:34] Speaker 02:
Yes, sir.

[00:14:37] Speaker 02:
You said that the Wireless Bureau should have granted a waiver of the automatic cancellation and should have, I think there was a second request, a request for

[00:14:47] Speaker 02:
general restructuring.

[00:14:49] Speaker 02:
You couldn't have gotten restructuring once the licenses were gone.

[00:14:53] Speaker 01:
That's a conundrum that I don't think the FCC can resolve.

[00:14:59] Speaker 02:
So what's the force, what is the scope of the challenge to the waiver of automatic cancellation after the licenses have been sold to somebody else?

[00:15:09] Speaker 01:
Among the steps the Commission could have taken before its final decision that would have changed the posture going into a takings forum

[00:15:15] Speaker 01:
is whether it was going to forgive anything under the restructuring or waiver request, whether it was going to offer refunds, whether it was going to offer equivalent spectrums, which would have had an economic or market value and could have been used as an offset against what the Alpine had invested, whether it was going to provide them with the vouchers.

[00:15:33] Speaker 00:
But it couldn't give you your licenses back.

[00:15:37] Speaker 00:
And that's what you

[00:15:38] Speaker 01:
That's what Alpine wanted initially.

[00:15:42] Speaker 01:
But by the time this litigation had evolved and the FCC had left them at the altar so many times, I think they were looking for a new suitor.

[00:15:49] Speaker 00:
So what's the focus of the takings here?

[00:15:51] Speaker 00:
It's the licenses.

[00:15:53] Speaker 01:
No, the focus of the takings are the consequential damages that Alpine incurred being led down a primrose path by the FCC for some 10 years, the $90 million it put in.

[00:16:03] Speaker 00:
But those damages accrue from what?

[00:16:05] Speaker 00:
It's from your loss of the licenses.

[00:16:07] Speaker 01:
In part, yes, but also from the expectation that we were free to use them and we had the right to seek their restoration.

[00:16:15] Speaker 01:
Yes, these are not actions that we undertook unilaterally.

[00:16:19] Speaker 01:
They were assurances that the FCC gave the clients, at least as pled.

[00:16:23] Speaker 01:
And we think those are among the issues of material fact that would need to be sorted out before the trial court.

[00:16:29] Speaker 03:
All right, Mr. Prattis, we need to move on to Ms.

[00:16:31] Speaker 03:
McCarthy.

[00:16:37] Speaker 05:
Good morning.

[00:16:37] Speaker 05:
May I please, the court?

[00:16:40] Speaker 05:
If I may, I may start with the Supreme Court's decision in next way, which I believe is cited in the brief.

[00:16:47] Speaker 05:
In that case, the FCC had already re-auctioned the licenses, which resulted in litigation, which this court referred to in Selco, in which other bidders were filing claims against the government and the Court of Federal Claims.

[00:17:05] Speaker 05:
related to the reaction licenses and the FCC's demand for the deposits back or decision to deal with those licenses.

[00:17:15] Speaker 05:
But the point is that the Supreme Court in NextWave gave the licenses back to NextWave because NextWave entirely preserved its ability to challenge the revocation of its licenses.

[00:17:28] Speaker 05:
And unlike here, Alpine, by the time it had sought to challenge the auctioning of its licenses,

[00:17:35] Speaker 05:
Those licenses, as the DC Circuit held, weren't part of the bankruptcy estate because they had been automatically canceled, subject to the Commission's regulations.

[00:17:45] Speaker 03:
But then isn't the question just whether, I mean, yes, the next way they gave the licenses back, but I didn't, isn't the question here whether just compensation is necessary?

[00:17:53] Speaker 05:
Well, to be clear, in 1940, the Supreme Court held in FCC versus Sanders that there's no property interest.

[00:18:01] Speaker 03:
That's not an issue in appeal.

[00:18:03] Speaker 05:
No, it's not an issue of appeal.

[00:18:04] Speaker 05:
Judge Leto incorrectly, in our view, held that there was a property interest, but that's never been resolved.

[00:18:12] Speaker 03:
If anything, we vacate and remand for further proceedings.

[00:18:16] Speaker 03:
We're not going to decide this case on the basis of...

[00:18:19] Speaker 03:
Or have you asked us in your brief to alternatively affirm in your favor on that property rights issue?

[00:18:25] Speaker 05:
No, because Judge Leto properly viewed the takings claims as untimely, assuming for argument's sake, which our brief does, that there is an existence of a property right.

[00:18:35] Speaker 05:
I guess the reason why I started with the next wave decision, the Supreme Court's decision, the next wave, is that there are plenty of remedies here for Alpine had it chose to litigate them

[00:18:48] Speaker 02:
I guess I'm a little confused about the point you want to draw from NextWave.

[00:18:56] Speaker 02:
What I thought I heard you say was the Supreme Court in NextWave said that even after the licenses had been re auctioned to somebody else, the FCC had the authority to give them back to NextWave.

[00:19:09] Speaker 02:
So why doesn't that make their request for a remedy pending before the commission until January of 2010?

[00:19:18] Speaker 02:
a request for, among other things, the possibility of getting the license back.

[00:19:24] Speaker 05:
Because they were too late.

[00:19:25] Speaker 05:
Because by the time their licenses were automatically canceled in 2002, and this is final conclusive ruling by the DC Circuit, they were not part of the bankruptcy estate.

[00:19:36] Speaker 05:
So by the time they went to challenge the auctioning of the licenses in 2008, they had long lost them.

[00:19:41] Speaker 05:
They had been automatically canceled by virtue of the commission's regulations.

[00:19:47] Speaker 05:
And to the extent that we're not addressing the merits here, but since it did come up by Alpine, Joint Appendix page 42 and Joint Appendix page 50, on pursuant to the security agreement, Alpine agreed to be subject to the commission's regulations under the Communications Act of 1934 as they are amended from time to time.

[00:20:10] Speaker 05:
So to the extent that they're complaining about the automatic cancellation regulation that was

[00:20:16] Speaker 02:
changing the playing field, they bargained for that, to the extent that this is a... Right, but I guess I was remembering that what they had, what they sought from the wireless bureau, and then were denied and were appealing, was the refusal to waive those provisions.

[00:20:35] Speaker 02:
Right.

[00:20:35] Speaker 02:
So, if the Commission had the authority to waive the automatic cancellation and pursue it to next wave,

[00:20:43] Speaker 02:
take the licenses back from whoever was using them in California or something and give them back to Alpine, why was that not the same sort of thing that was at issue in Williamson?

[00:21:00] Speaker 02:
Namely, the alleged taker might end up not taking.

[00:21:06] Speaker 02:
So why litigate before you knew whether the taker was going to take?

[00:21:12] Speaker 05:
Well, we're assuming that first of all, they'd have to establish or articulate a claim which has been resolved that they haven't been able to do.

[00:21:22] Speaker 05:
In next wave, the Supreme Court held that the FCC had not followed the Communications Act.

[00:21:30] Speaker 05:
And here, there's no even allegation.

[00:21:32] Speaker 05:
The allegation that Alpine is making that somehow the very existence of the automatic cancellation rule

[00:21:38] Speaker 05:
is a violation of the terms of the security agreement, which it clearly is not because they expressly agreed to have the automatic cancellation allowed.

[00:21:48] Speaker 05:
And so to the extent that they could have challenged, I suppose, in district court under the APA, they could have challenged the validity of the automatic cancellation regulation, but they didn't do that.

[00:21:59] Speaker 05:
There's simply no claim anywhere.

[00:22:02] Speaker 05:
that to be resolved.

[00:22:04] Speaker 02:
Tell me why what you just said is something different from on the merits they don't have a takings claim.

[00:22:11] Speaker 05:
They haven't articulated.

[00:22:13] Speaker 05:
As Judge Leto correctly held below, they knew that their licenses were automatically canceled in 2002.

[00:22:22] Speaker 05:
And they could have gone to bankruptcy court and preserved that.

[00:22:26] Speaker 05:
They could have done something to challenge that claim, or they could have brought a takings claim at that point.

[00:22:32] Speaker 05:
if they could, to the extent that they have a property interest, which they don't.

[00:22:36] Speaker 05:
And then they certainly, as Judge Leto correctly held, they certainly knew that the taking claim would have accrued when it was auctioned off to other bidders.

[00:22:51] Speaker 05:
They could not obtain the next wave remedy at the Supreme Court or in bankruptcy court because they were too late.

[00:23:00] Speaker 05:
Their licenses were no longer part of the bankruptcy estate, which the DC Circuit held, because they were far too late.

[00:23:07] Speaker 05:
They waited four years, six years.

[00:23:10] Speaker 05:
My math is wrong.

[00:23:11] Speaker 05:
Six years to try and challenge something that was already gone.

[00:23:18] Speaker 05:
It was no longer there.

[00:23:20] Speaker 05:
It was elaboration of the rules.

[00:23:23] Speaker 02:
Can I ask on the Martinez page, there's a string site following the sentence that

[00:23:30] Speaker 02:
Judge Moore read earlier, are some or all of those cases takings cases, or are they all, say, contract cases?

[00:23:39] Speaker 02:
And Martinez?

[00:23:43] Speaker 02:
As a corollary of that rule, the court has held that a plaintiff's invocation of a permissive administrative remedy does not prevent the accrual of the plaintiff's cause of action, nor is it told the statute of limitations tending the exhaustion of the administrative.

[00:23:55] Speaker 02:
That's page 1304.

[00:23:57] Speaker 02:
And then there's, I don't know, five

[00:24:00] Speaker 02:
six cases.

[00:24:02] Speaker 05:
I honestly can't honestly answer.

[00:24:04] Speaker 05:
I furthered their contract cases, not taking these cases, but I don't know.

[00:24:09] Speaker 03:
OK.

[00:24:11] Speaker 03:
Am I missing something?

[00:24:14] Speaker 03:
Am I on the same page?

[00:24:17] Speaker 05:
We're on page 12, 1304.

[00:24:19] Speaker 05:
That's what I'm looking at.

[00:24:22] Speaker 02:
OK.

[00:24:28] Speaker 02:
We're arguing about how many.

[00:24:31] Speaker 05:
In any event, certainly Judge Aletta's decision regarding the preemption, the fact that these contract claims are controlled directly by this court's precedent.

[00:24:42] Speaker 03:
The law is recovering a claim until the government's liability is fixed, right?

[00:24:51] Speaker 03:
Yes.

[00:24:54] Speaker 03:
I'm trying to figure out what to make of their brief, which the government completely did not respond to at page 24, where they have this laundry list of remedies the government still could have provided them in response to their two requests, the waiver and the debt restructuring.

[00:25:11] Speaker 03:
This laundry list of remedies, which I guess they're saying could have been the just compensation for the taking and that were still on the table and could have been provided to them by the government

[00:25:24] Speaker 03:
in response to their requests even after the time when the licenses had been re-auctioned.

[00:25:31] Speaker 03:
And so since this hadn't been resolved yet, this list on page 24, does that mean liability hasn't been fixed such that the claim hasn't started to accrue?

[00:25:41] Speaker 05:
The liability for the takings claim?

[00:25:45] Speaker 05:
And we're assuming that there's a property interest in that?

[00:25:47] Speaker 03:
Yes, yes, because you assumed it in your brief.

[00:25:49] Speaker 03:
So stop talking about that.

[00:25:50] Speaker 05:
OK.

[00:25:53] Speaker 05:
These were permissive appeals under the FCC to the extent that they're articulating a takings claim.

[00:26:01] Speaker 05:
And if I may note, Judge Horne and Folden held that there's no regulatory takings in the context of these FCC licenses cases because of the lack of reasonable investment back expectations.

[00:26:20] Speaker 05:
And this is a highly regulated field, putting all that aside.

[00:26:23] Speaker 05:
These were permissive remedies to the extent that they can articulate a property interest and a license for which they haven't paid, because they only paid for six-tenths of the license.

[00:26:33] Speaker 05:
They were able to enjoy use of this license.

[00:26:35] Speaker 03:
Are you still arguing the property interest point, despite the fact that you didn't argue it in your brief, and I've asked you to move away from it and respond to my question?

[00:26:44] Speaker 05:
The license is our position, Your Honor, is that although there was permissive remedies that the FCC could have provided,

[00:26:54] Speaker 05:
They were permissive and their licenses were canceled in 2002 and they therefore... My question is specific.

[00:27:05] Speaker 03:
Has the liability been fixed?

[00:27:07] Speaker 03:
The Supreme Court says claim the instructor crew until all liabilities been fixed.

[00:27:11] Speaker 03:
Has the liability been fixed when these requests have not been ruled upon?

[00:27:20] Speaker 05:
Yes, because once the license are automatically canceled, they could have negotiated.

[00:27:25] Speaker 05:
FCC had the authority to negotiate.

[00:27:26] Speaker 03:
OK, but let me be clear.

[00:27:27] Speaker 03:
You said earlier that Judge Leto held that they could have in 2002.

[00:27:31] Speaker 03:
I didn't read his opinion that way.

[00:27:32] Speaker 03:
I read his opinion to say they claimed they were unaware of the cancellation of licenses in 2002.

[00:27:38] Speaker 03:
And so I didn't understand him to make a fact finding about whether they are aware or not, because then he said, alternatively, at least as of 2008, they were aware.

[00:27:46] Speaker 03:
So I think you misspoke earlier when you're talking about 2002 and when you claim that Judge Leto held in favor of the government.

[00:27:51] Speaker 05:
Well, he was assuming for arguments that he was taking them at their word that they were unaware of the automatic cancellation.

[00:27:57] Speaker 03:
Correct.

[00:27:57] Speaker 03:
So he didn't hold that as of 2002.

[00:28:00] Speaker 05:
If I misspoke, Your Honor.

[00:28:01] Speaker 03:
But anyway, it's actually my point, which is, did the liability get fixed or not?

[00:28:05] Speaker 03:
That's what I'm trying to figure out.

[00:28:06] Speaker 03:
I'm trying to reconcile Williamson.

[00:28:08] Speaker 03:
And I don't know what to do about it.

[00:28:10] Speaker 03:
Because the rule doesn't make sense to me, as you can tell from the questions I've been asking as applied to this case.

[00:28:16] Speaker 03:
It doesn't make sense if I extracted that rule from Williamson and apply it to this case.

[00:28:21] Speaker 03:
I'm struggling with the idea that this is what the Supreme Court wanted from Williamson.

[00:28:25] Speaker 03:
But so I'm trying to find a way to make sense of this.

[00:28:29] Speaker 03:
And you're not helping, especially when you keep going back to the property interest thing.

[00:28:33] Speaker 03:
They've got a list of remedies which amount to just compensation they think the government could have given them that were still in play

[00:28:41] Speaker 03:
Does that mean liability is not fixed?

[00:28:45] Speaker 05:
Assuming all those cases, then yes.

[00:28:47] Speaker 05:
Then that would be the case.

[00:28:48] Speaker 05:
We would disagree with that liability.

[00:28:51] Speaker 05:
We believe that their tase claim was untimely.

[00:28:53] Speaker 05:
But I cannot say that there's nothing that the FCC could have done to provide them any sort of remedy.

[00:29:01] Speaker 03:
I guess what I was kind of hoping you were going to say is there's a difference between fixing liability and assessing remedy.

[00:29:06] Speaker 03:
That's kind of where I was hoping you were going to go.

[00:29:08] Speaker 03:
I was hoping you were going to say yes in response to that question.

[00:29:11] Speaker 03:
Any chance you want to think about that more?

[00:29:14] Speaker 05:
I mean, I don't know.

[00:29:21] Speaker 05:
I think our position is pretty clear.

[00:29:25] Speaker 05:
Their license is automatically canceled in 2002.

[00:29:27] Speaker 05:
They claim that they were unaware.

[00:29:29] Speaker 05:
They certainly knew that their licenses were gone from them when they were being re auctioned when they challenged the bankruptcy court.

[00:29:37] Speaker 05:
Those licenses were not part

[00:29:41] Speaker 05:
of the bankruptcy estate because they had been automatically canceled in 2002.

[00:29:45] Speaker 03:
How is it you don't think William Senn has any application to this case?

[00:29:51] Speaker 03:
I mean, he's argued that William Senn changed the state of takings law.

[00:29:57] Speaker 05:
Because the remedy was really, in order to challenge, they tried to challenge the cancellation of their licenses in 2008 when it was too late.

[00:30:07] Speaker 05:
There wasn't any

[00:30:09] Speaker 05:
remedy through the court system.

[00:30:11] Speaker 05:
This is not an applicant, this is not a license holder, who has been asleep at the switch.

[00:30:20] Speaker 05:
They have litigated and challenged everything at every step in the way.

[00:30:24] Speaker 05:
They've been into the DC Circuit several times.

[00:30:27] Speaker 02:
Can I ask you this same question I asked?

[00:30:32] Speaker 02:
Your counterpart.

[00:30:36] Speaker 02:
This is my 1,500 question.

[00:30:39] Speaker 02:
At what point could Alpine have filed a takings claim in the Court of Federal Claims and not met a 1,500 objection?

[00:30:52] Speaker 05:
You know what I mean by 1,500.

[00:30:55] Speaker 05:
Yeah, I do know what you mean.

[00:30:56] Speaker 05:
So we're talking about a takings claim that wouldn't be preempted.

[00:31:03] Speaker 05:
They weren't really presenting, talking about the same facts and circumstances.

[00:31:12] Speaker 05:
I'm not sure what their takings claim is.

[00:31:18] Speaker 02:
We have to assume that they have a meritorious takings claim.

[00:31:23] Speaker 05:
They've articulated some sort of plausible takings claim that they have some sort of property interest that has been withheld from them without just compensation.

[00:31:32] Speaker 02:
I mean, with the pendency of the proceedings before the FCC up to January of 2010, in which they were seeking something that I think you agree, have they gotten it, might well have been just compensation for the assumed taking, that have triggered a meritorious 1,500 objection, or because the FCC is not

[00:31:58] Speaker 02:
A court, would it not?

[00:32:00] Speaker 02:
But then they would have gone to the DC circuit and then it would have, presumably.

[00:32:06] Speaker 05:
After 2010 or before 2010?

[00:32:09] Speaker 02:
It was pending before... Didn't they appeal the January 2010 denial of relief from the commission to the DC circuit?

[00:32:19] Speaker 02:
So at that point, once they file their petition for review, assuming that's what it is, they have a proceeding in court.

[00:32:27] Speaker 05:
I'm not sure that they appealed to 2010.

[00:32:30] Speaker 05:
I won't be precise about this.

[00:32:31] Speaker 05:
I'm not sure they appealed to 2010.

[00:32:32] Speaker 05:
What they appealed was the denial of the relief and bankruptcy court.

[00:32:36] Speaker 05:
And then they appealed the rejection of their contract action filed in the DC.

[00:32:41] Speaker 02:
I think the DC Circuit ruled against the DC in December of 2010.

[00:32:46] Speaker 05:
The DC Circuit.

[00:32:51] Speaker 05:
Right.

[00:32:51] Speaker 05:
I'm sorry.

[00:32:54] Speaker 05:
Karen.

[00:32:56] Speaker 05:
So after December 20, while it was pending before the DC Circuit?

[00:33:00] Speaker 02:
I assume that I don't have $1,500 in front of me.

[00:33:04] Speaker 02:
So I'm just assuming for current purposes that there might be a distinction between a court proceeding and an agency proceeding.

[00:33:11] Speaker 02:
But I don't know how.

[00:33:13] Speaker 05:
We wouldn't have made it.

[00:33:14] Speaker 05:
I'm not sure we would have made a $1,500 objection during the time when it was pending before the agency, but before the DC Circuit.

[00:33:23] Speaker 05:
that were the same, presuming the same facts and circumstances.

[00:33:26] Speaker 00:
I understood that at the time of the re-auction of the licenses, that the only thing pending before the SSC was a motion to reconsider, a request to reconsider the staff decision with respect to the installment payments to change those.

[00:33:43] Speaker 00:
Is that correct?

[00:33:44] Speaker 04:
Yes, that is true.

[00:33:45] Speaker 04:
That's correct.

[00:33:47] Speaker 00:
At any time after that, could they have moved to amend somehow to try to bring

[00:33:53] Speaker 00:
some sort of allegation with respect to the re-auctioning.

[00:33:59] Speaker 00:
Those are two different issues.

[00:34:01] Speaker 00:
Re-auctioning of the licenses and this motion for reconsideration that they were pursuing.

[00:34:07] Speaker 00:
That's the only thing left to pursue before the government, correct?

[00:34:11] Speaker 05:
Well, the re-auctioning claim raises judicata.

[00:34:15] Speaker 05:
They lost the re-auctioning claim by fully litigating that in the bankruptcy court.

[00:34:22] Speaker 00:
They could not have raised a reaction issue.

[00:34:26] Speaker 05:
No, they could not have.

[00:34:27] Speaker 05:
That was decided.

[00:34:29] Speaker 05:
The only thing that was pending was their petition for some sort of relief before the full commission.

[00:34:42] Speaker 02:
Can you just talk for a minute about the Soriano case which you cited?

[00:34:52] Speaker 02:
the Supreme court case from 1957, kind of in the same vein as Martinez, but I don't have in my head.

[00:35:00] Speaker 02:
And that I think actually was a takings claim.

[00:35:02] Speaker 02:
Is that right?

[00:35:03] Speaker 02:
Yes, that was a takings claim.

[00:35:04] Speaker 02:
And the point is that if... So on the assumption that Martinez is owned, Martinez's comment was only about contract cases.

[00:35:15] Speaker 02:
What does Soriano do for you that Martinez on that assumption doesn't?

[00:35:22] Speaker 05:
It doesn't, other than it's a takings.

[00:35:24] Speaker 05:
The reason why we cited Seriano is it's a takings claim, and it stands for the proposition that at some point in time, the plane has to come into court and allege a takings claim, that drawing out administrative remedies in perpetuity, that's why we cited it.

[00:35:45] Speaker 02:
Has it been the government's position in other takings claims

[00:35:53] Speaker 02:
the claim is not ripe until permissive administrative avenues for some or even all compensation have been pursued to their end?

[00:36:10] Speaker 05:
I'm not aware that our position is that a claim is not ripe until all permissive means are exhausted.

[00:36:17] Speaker 05:
No, I'm not aware that that's ever been our position.

[00:36:23] Speaker 05:
For these reasons, I see I'm well over time.

[00:36:26] Speaker 05:
For these reasons, primarily because of the preemption doctrine application to the contract claims, we expectly request that the judgment will be upfront.

[00:36:37] Speaker 03:
Thank you, Ms.

[00:36:38] Speaker 03:
McCarthy.

[00:36:39] Speaker 03:
Mr. Pandis will give you the three minutes of rebuttal time that you requested.

[00:36:43] Speaker 01:
Thank you, Judge.

[00:36:45] Speaker 01:
Three comments.

[00:36:46] Speaker 01:
With respect to the remedial issue that you raised, Judge Moore,

[00:36:50] Speaker 01:
Our view is that the liability is not fixed until potential offsets are set.

[00:36:54] Speaker 01:
And that's the entire point of the Williamson Doctrine, that before you're going to seek just compensation as a remedy for an unlawful taking, you need to know the extent of that compensation.

[00:37:07] Speaker 01:
So that, in our view, is the simple answer.

[00:37:12] Speaker 01:
Judge Taranto, with regard to the Martinez issue,

[00:37:15] Speaker 01:
I went back the other day to look through the Williamson decision in 1989 and Hodel versus Virginia surface mining in 1981.

[00:37:25] Speaker 01:
And I saw no real discussion of Soriano in those cases.

[00:37:29] Speaker 01:
And I don't know if this is one of these anomalies in the law where Soriano was decided in 57.

[00:37:35] Speaker 01:
So I will take the view that Soriano is really an exhaustion case and not a rightness case at all.

[00:37:44] Speaker 01:
If it were otherwise, I think the Supreme Court might have said so.

[00:37:48] Speaker 01:
But again, it's not clear to me.

[00:37:49] Speaker 01:
And this case may be the case that clears that up.

[00:37:52] Speaker 01:
As to the automatic cancellation, there were issues, Judge Raina.

[00:37:57] Speaker 01:
In fact, the Circuit Court in an unpublished decision in 2010 did say the licenses were canceled in 2002, well before the bankruptcy filing in 2008.

[00:38:11] Speaker 01:
It's an unpublished decision.

[00:38:12] Speaker 01:
I think in the facts that we pled in the claims court, we talked about a communication from the FCC saying that the cancellation notification to the public at large was in error and that Alpine could continue to use those.

[00:38:25] Speaker 01:
That's one of those mixed questions of law and fact that we think makes the case trial worthy.

[00:38:30] Speaker 01:
2008, they were canceled.

[00:38:32] Speaker 01:
but they were re-auctioned, excuse me, but they were re-auctioned within a year of having filed for relief that was not acted upon by the Telecommunication Bureau for some years thereafter.

[00:38:43] Speaker 01:
Again, why that's the case, whether there is an economic consequence to that that would permit us to seek money damages remains to be seen.

[00:38:53] Speaker 01:
Whatever the picture here, and I regret that we didn't have the time to talk about 402B5, and I know the rebuttal means keeping my comments within the comments that my adversary has made, so I will.

[00:39:02] Speaker 01:
I think that with respect to the takings claim, this court has yet to give teeth to the holding of Williamson and Hodel versus Fertinia Mining Company.

[00:39:12] Speaker 01:
We look forward to this decision, and we ask you to remand.

[00:39:15] Speaker 02:
Can I just ask you when the cancellation occurred?

[00:39:21] Speaker 02:
Was it August, I think?

[00:39:23] Speaker 01:
It was in 2008.

[00:39:24] Speaker 02:
No, no, the cancellation.

[00:39:27] Speaker 01:
There is a dispute of fact about that, but there is a date of August 1, 2002.

[00:39:30] Speaker 01:
Yes, sir.

[00:39:31] Speaker 02:
So what is your substantive reason for why that was a taking?

[00:39:38] Speaker 02:
Forget about compensation.

[00:39:40] Speaker 02:
Why was that a taking?

[00:39:41] Speaker 01:
It was in contravention to at least one reading of the contract that Alpine had signed, which bound the FCC to certain regulations.

[00:39:49] Speaker 01:
When they were approached and asked to adopt the 290-day default rule, the Alpine refused.

[00:40:00] Speaker 01:
there no further questions thank you.

[00:40:02] Speaker 03:
I thank both counsel the case is taken under submission.