Alpine Pcs, Inc. v. United States , 878 F.3d 1086 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
ALPINE PCS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1029
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00001-CFL, Judge Charles F.
Lettow.
______________________
Decided: January 2, 2018
______________________
NORMAN PATTIS, The Pattis Law Firm, LLC, Bethany,
CT, argued for plaintiff-appellant.
PATRICIA M. MCCARTHY, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR.
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
2 ALPINE PCS, INC. v. UNITED STATES
TARANTO, Circuit Judge.
In 1996, the Federal Communications Commission
(FCC) awarded spectrum licenses to Alpine PCS, Inc., for
use in the provision of wireless telecommunications
services. Alpine’s failure to make required payments for
those licenses in 2002 triggered automatic cancellation of
the licenses under FCC regulations. In addition to taking
other steps in response, Alpine sought relief from the FCC
and, on review under the Communications Act, 47 U.S.C.
§ 402(b)(5), from the United States Court of Appeals for
the District of Columbia Circuit. Eventually, in 2016,
Alpine filed this action against the United States under
the Tucker Act, 28 U.S.C. § 1491(a)(1), in the United
States Court of Federal Claims. Alpine alleged that the
FCC breached contractual obligations in canceling the
licenses and that the cancellation was a taking for which
Alpine was entitled to just compensation under the Tak-
ings Clause of the Fifth Amendment to the U.S. Constitu-
tion. The Court of Federal Claims dismissed both of
Alpine’s claims for lack of jurisdiction under the Tucker
Act. We affirm, concluding that the Communications Act
provides a comprehensive statutory scheme through
which Alpine could raise its contract claims and could
challenge the alleged taking and receive a remedy that
could have provided just compensation in this case, fore-
closing jurisdiction under the Tucker Act.
I
A
In May 1996, Alpine submitted bids in an FCC spec-
trum-license auction and won two 10-year “personal
communication services” licenses. Alpine bid approxi-
mately $8.9 million for one license and approximately
$17.3 million for the other.
As a small business, Alpine was eligible to pay its bid
amounts in installments over the term of the licenses.
ALPINE PCS, INC. v. UNITED STATES 3
See 47 C.F.R. § 1.2110(e) (1995); 59 Fed. Reg. 44,272,
44,298–99 (Aug. 26, 1994), amended by 60 Fed. Reg.
52,865, 52,865 (Oct. 11, 1995). In September 1996, Alpine
issued promissory notes to the FCC, providing for quar-
terly payments from December 1996 through September
2006. Alpine also executed security agreements designat-
ing the licenses as collateral to secure the payment obli-
gation.
The notes contain two provisions highlighted by the
parties. One describes the process of default:
A default under this Note (“Event of Default”)
shall occur upon . . . non-payment by [Alpine] of
any Principal or Interest on the due date as speci-
fied hereinabove if [Alpine] remains delinquent
for more than 90 days and
(1) [Alpine] has not submitted a request, in writ-
ing, for a grace period or extension of pay-
ments, if any such grace period or extension of
payments is provided for in the then-
applicable orders and regulations of the
Commission; or
(2) [Alpine] has submitted a request, in writing,
for a grace period or extension of payments, if
any such grace period or extension of pay-
ments is provided for in the then-applicable
orders and regulations of the Commission, and
following the expiration of the grant of such
grace period or extension or upon denial of
such a request for a grace period or extension,
[Alpine] has not resumed payments . . . in ac-
cordance with the terms of this Note . . . .
J.A. 21–22; J.A. 29–30. A second provision states that the
“Note[s] shall be governed by and construed in accordance
with the Communications Act of 1934, as amended, the
then-applicable orders and regulations of the Commis-
4 ALPINE PCS, INC. v. UNITED STATES
sion, and federal law . . . , and nothing in th[ese] Note[s]
shall be deemed to release [Alpine] from compliance
therewith.” J.A. 25; J.A. 33.
The security agreements incorporate the notes’ provi-
sions regarding the process of default and identify auto-
matic cancellation of the licenses as one of the FCC’s
remedies upon default. The security agreements also
state that they “shall be governed by and construed in
accordance with [the] Communications Act of 1934, as
amended, then-applicable Commission orders and regula-
tions, as amended, and federal law.” J.A. 42; J.A. 50.
The regulations in effect in September 1996 provided
that a licensee “making installment payments . . . shall be
in default” if a payment “is more than ninety (90) days
delinquent,” but could “request that the [FCC] permit a
three to six month grace period, during which no install-
ment payments need be made.” 47 C.F.R.
§ 1.2110(e)(4)(i)–(ii) (1995). The FCC could “consider[]
whether to grant a request for a grace period” or “ap-
prove[] a restructured payment schedule.” Id.§ 1.2110(e)(4)(ii). If the request was denied or the grace
period expired without payment, the licenses would
automatically cancel and the licensee would be subject to
debt collection. Id. § 1.2110(e)(4)(iii).
The FCC then amended the regulations, the amend-
ments taking effect in 1998. See In re Amendment of Part
1 of the Commission’s Rules – Competitive Bidding Proce-
dures, 13 FCC Rcd. 374 (F.C.C. 1997); Celtronix Teleme-
try, Inc. v. FCC, 272 F.3d 585, 586 (D.C. Cir. 2001). The
1998 regulations, instead of requiring a request for a
grace period upon default, provided for a 90-day non-
delinquency period and a subsequent 90-day grace peri-
od—effectively, two 3-month grace periods—as a matter of
course. 47 C.F.R. § 1.2110(f)(4)(ii) (1998) (“If any licensee
fails to make the required payment at the close of the 90-
day period set forth in paragraph (i) of this section, the
ALPINE PCS, INC. v. UNITED STATES 5
licensee will automatically be provided with a subsequent
90-day grace period,” and “[l]icensees shall not be re-
quired to submit any form of request in order to take
advantage of the initial 90-day non-delinquency period
and subsequent automatic 90-day grace period.”); see also
63 Fed. Reg. 2,315, 2,346 (Jan. 15, 1998), corrected by 63
Fed. Reg. 12,658, 12,659 (Mar. 16, 1998). But if the
licensee did not pay the installment, plus late fees, after
the second grace period, the licensee would be declared in
default, have its licenses “automatically cancel[ed],” and
be subject to debt collection. 47 C.F.R. § 1.2110(f)(4)(iii)–
(iv) (1998).
In January 2002, Alpine failed to make its quarterly
payment. Under the regulations in effect at that time,
Alpine received two 3-month grace periods as a matter of
course, and its new payment deadline was July 31, 2002.
See 47 C.F.R. § 1.2110(g)(4)(i)–(ii) (2000). 1 Unless Alpine
paid the full amount, plus late fees, by that date, it would
be declared in default, have its licenses “automatically
cancel[ed],” and be subject to debt collection. Id.§ 1.2110(g)(4)(iii)–(iv).
On July 24, 2002, a week before the deadline, Alpine
asked the FCC to restructure the payment plan, invoking
31 C.F.R. § 902.2. The FCC acknowledged receipt of that
request on July 30, 2002. On July 31, 2002 (the payment
deadline), Alpine asked the FCC to waive the automatic
cancellation provision of the regulations. In re Alpine
PCS, Inc., 22 FCC Rcd. 1492, 1495 (W.T.B. Jan. 29, 2007).
In October 2002, a few months after the expiration of
the grace periods, the FCC changed its public database to
1 The relevant provisions of the regulations in effect
in 2002 were substantially the same as those in effect in
1998, although appearing in slightly different form and
moved from subsection (f) to subsection (g).
6 ALPINE PCS, INC. v. UNITED STATES
show that the licenses had reverted to the FCC. Accord-
ing to Alpine’s allegations in this case, however, the FCC
assured Alpine that the database change was a clerical
error, and the FCC continued to discuss possible payment
restructuring with Alpine.
The FCC ultimately denied both the payment-
restructuring and waiver-of-cancellation requests. On
January 16, 2004, the FCC told Alpine that Alpine was in
default and “advised Alpine that the Restructuring Re-
quest was being returned to Alpine ‘without action.’” J.A.
14; see also In re Alpine PCS, Inc., 25 FCC Rcd. 469, 474
(F.C.C. Jan. 5, 2010). Three years later, on January 29,
2007, the FCC’s Wireless Telecommunications Bureau
issued an order denying Alpine’s waiver and restructuring
requests. In re Alpine, 22 FCC Rcd. at 1503 & n.2. Alpine
timely filed a petition for reconsideration of the Bureau’s
decision, which the FCC denied on January 5, 2010. In re
Alpine, 25 FCC Rcd. at 509 (citing 47 U.S.C. § 155(c)(5);
47 C.F.R. § 1.106). Alpine appealed that decision to the
D.C. Circuit under 47 U.S.C. § 402(b). The D.C. Circuit
summarily affirmed the FCC’s decision. Alpine PCS, Inc.
v. FCC, 404 F. App’x 508 (D.C. Cir. 2010).
B
Several other events and proceedings are relevant
here. On April 4, 2008, while Alpine’s petition for recon-
sideration regarding waiver and restructuring was pend-
ing before the FCC, the FCC announced a new auction of
the licenses, to be held on August 13, 2008. In re Alpine
PCS, Inc., 23 FCC Rcd. 10,485, 10,486 & n.1 (F.C.C. July
7, 2008). On April 18, 2008, Alpine asked the FCC to stay
the auction until the FCC ruled on the reconsideration
petition, but the FCC refused. Id. at 10,486, 10,488–92.
In August 2008, Alpine filed for bankruptcy and
moved for an automatic stay of the FCC auction. Debtor’s
Emergency Mot. to Enforce Automatic Stay, In re Alpine
ALPINE PCS, INC. v. UNITED STATES 7
PCS, Inc., No. 08-00543 (Bankr. D.D.C. Aug. 18, 2008).
The bankruptcy court denied the stay motion, determin-
ing that the licenses were not part of the bankruptcy
estate. In re Alpine PCS, Inc., No. 08-00543, 2008 WL
5076983, at *4 (Bankr. D.D.C. Oct. 10, 2008), aff’d, 404 F.
App’x 504 (D.C. Cir. 2010). The FCC re-auctioned the
licenses in 2008.
In January 2013, Alpine sued the FCC in the U.S.
District Court for the District of Columbia, alleging
breach of contract, unjust enrichment, fraud in the in-
ducement, and breach of fiduciary duty, and seeking
declaratory judgments of no default and no debt. Compl.,
Alpine PCS, Inc. v. FCC, No. 1:13-cv-000006, at 8–11
(D.D.C. Jan. 3, 2013). Alpine argued that the case was
properly before that court because the promissory notes
include a forum-selection clause stating that “any legal
action or proceeding relating to th[e] note[s], the security
agreement[s], or other document[s] evidencing or securing
the debt transaction evidenced hereby may only be
brought in the United States District Court for the Dis-
trict of Columbia.” J.A. 24; J.A. 32. The district court
rejected Alpine’s argument and dismissed the claim for
lack of jurisdiction, concluding, among other things, that
the contract claims were essentially an attack on an FCC
licensing decision, review of which is committed by stat-
ute, 47 U.S.C. § 402(b), to the exclusive jurisdiction of the
D.C. Circuit. The D.C. Circuit affirmed the district court’s
decision. Alpine PCS, Inc. v. FCC, 563 F. App’x 788, 788–
89 (D.C. Cir. 2014).
C
On January 4, 2016, Alpine brought the present ac-
tion against the United States in the Court of Federal
Claims. Alpine alleged breach of oral and written con-
tract, breach of contract implied in fact, and breach of the
duty of good faith and fair dealing (the contract claims).
According to Alpine, the FCC breached its contractual
8 ALPINE PCS, INC. v. UNITED STATES
obligations under the notes and security agreements and
breached its duty of good faith and fair dealing by auto-
matically canceling Alpine’s licenses after the two grace
periods, as provided in the amended regulations (de-
scribed above). Alpine also asserted a constitutional
claim under the Fifth Amendment (the takings claim)
based on the FCC’s alleged regulatory taking of property
in canceling the licenses under the amended regulations,
for which Alpine was seeking just compensation. 2
The government moved to dismiss the case for lack of
jurisdiction: it argued that the claims, filed in 2016, were
untimely under the six-year statute of limitations, 28
U.S.C. § 2501, which is a jurisdictional provision, see John
R. Sand & Gravel Co. v. United States, 552 U.S. 130(2008). The court dismissed for lack of jurisdiction.
Alpine PCS, Inc. v. United States, 128 Fed. Cl. 303 (2016).
The court dismissed the contract claims on the ground
that Tucker Act coverage of those claims was displaced
(“preempted”) by the Communications Act, which directs
an aggrieved “holder of any . . . station license which has
been modified or revoked by the Commission” to the D.C.
Circuit for judicial relief. Id. at 308 (quoting 47 U.S.C. §
402(b)(5)). The court determined that the takings claim
was untimely, holding that claim to have accrued no later
than 2008, when the licenses were re-auctioned, more
than six years before 2016. Id. at 309.
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
2 Alpine’s complaint also alleged fraud in the in-
ducement, which the Court of Federal Claims dismissed
as a claim sounding in tort and outside its jurisdiction.
Alpine does not challenge that ruling on appeal.
ALPINE PCS, INC. v. UNITED STATES 9
II
A
We review de novo the court’s dismissal of claims for
lack of subject-matter jurisdiction under the Tucker Act.
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.
2004).
As relevant here, the Tucker Act waives sovereign
immunity for, and provides for Court of Federal Claims
jurisdiction over, monetary claims against the United
States “founded [] upon . . . the Constitution . . . or upon
any express or implied contract with the United States.”
28 U.S.C. § 1491(a)(1). On its face, therefore, the Tucker
Act encompasses Alpine’s contract claims and its takings
claim.
The Supreme Court, however, has described the
Tucker Act as serving a “gap-filling role” by allowing “for
an action against the United States for the breach of
monetary obligations not otherwise judicially enforcea-
ble.” United States v. Bormes, 568 U.S. 6, 12–13 (2012)
(footnote omitted). In accordance with that characteriza-
tion, the Court has held that the Tucker Act does not
apply in various circumstances in which Congress has
provided “a precisely drawn, detailed statute” that “con-
tains its own judicial remedies.” Id. at 12 (internal quota-
tion marks omitted). Where it has found those
circumstances, the Court has held that the “specific
remedial scheme establishes the exclusive framework for
the liability Congress created under the statute” and
“displace[s]” the Tucker Act. Id.The Court has found such circumstances in a number
of cases. See, e.g., Horne v. Dep’t of Agriculture, 569 U.S.
513, 526–28 (2013) (holding that Agricultural Marketing
Agreement Act of 1937 displaces Tucker Act); United
States v. Fausto, 484 U.S. 439, 454–55 (1988) (holding
that the Civil Service Reform Act, which “established a
10 ALPINE PCS, INC. v. UNITED STATES
comprehensive system for reviewing personnel action
taken against federal employees” and which “deliber-
ate[ly] exclu[ded] employees in respondent’s service
category from the provisions establishing administrative
and judicial review for personnel action of the sort at
issue here,” displaces Tucker Act jurisdiction over claims
based on such personnel actions under the Back Pay Act);
United States v. Erika, Inc., 456 U.S. 201, 208 (1982)
(holding that Tucker Act jurisdiction over certain claims
involving Medicare Part B payment decisions was dis-
placed by “precisely drawn provisions” of the Medicare
statute); Brown v. Gen. Servs. Admin., 425 U.S. 820, 834–
35 & n.10 (1976) (“precisely drawn, detailed statute” of
Section 717 of the Civil Rights Act of 1964 provides the
exclusive judicial remedy for claims of racial discrimina-
tion against the government, withdrawing jurisdiction
under Tucker Act).
This court has drawn the same conclusion in several
cases, recognizing that “[w]hen such a ‘specific and com-
prehensive scheme for administrative and judicial review’
is provided by Congress, the Court of Federal Claims’
Tucker Act jurisdiction over the subject matter covered by
the scheme is preempted.” Vereda, Ltda. v. United States,
271 F.3d 1367, 1375 (Fed. Cir. 2001) (quoting St. Vincent’s
Med. Ctr. v. United States, 32 F.3d 548, 549–50 (Fed. Cir.
1994)); see, e.g., Tex. Peanut Farmers v. United States, 409
F.3d 1370, 1373–74 (Fed. Cir. 2005) (district courts’
exclusive jurisdiction over claims against Federal Crop
Insurance Corp. in 7 U.S.C. §§ 1506(d), 1508(j), withdrew
Tucker Act jurisdiction over claims for breach of crop
insurance contract); Telecare Corp. v. Leavitt, 409 F.3d
1345, 1349 (Fed. Cir. 2005) (noting precedent that, as to
certain claims arising under the Medicare Act, Tucker Act
jurisdiction is displaced by the comprehensive “specialized
administrative and judicial review process” for those
claims, but holding that the particular claims at issue, for
ALPINE PCS, INC. v. UNITED STATES 11
which that process was unavailable, did not arise under
the Medicare Act and hence remained within Tucker Act).
B
The Court of Federal Claims concluded that Tucker
Act jurisdiction over Alpine’s contract claims is displaced
by the comprehensive scheme for review provided in the
Communications Act of 1934. We agree.
“To determine whether a statutory scheme displaces
Tucker Act jurisdiction, a court must ‘examin[e] the
purpose of the [statute], the entirety of its text, and the
structure of review that it establishes.’” Horne, 569 U.S.
at 527 (quoting Fausto, 484 U.S. at 444). In Horne, the
Court determined that the Agricultural Marketing
Agreement Act of 1937 provided mechanisms by which
handlers could file a petition directly “challeng[ing] the
content, applicability, and enforcement of marketing
orders . . . , including constitutional challenges, in admin-
istrative proceedings.” Id. (citing 7 U.S.C. § 608c(15)(A)–
(B)). After receiving an administrative ruling by the
Secretary of Agriculture, the handler aggrieved by the
order could request review by a district court, sitting in
equity. Id. (citing 7 U.S.C. § 608c(15)(B)). The Supreme
Court concluded that those statutory provisions, 7 U.S.C.
§ 608c(15)(A)–(B), “afford handlers a ready avenue to
bring takings claim[s] against the [United States De-
partment of Agriculture]” and displace Tucker Act juris-
diction. Id. at 527–28.
In Folden, we examined in detail the Communication
Act’s “comprehensive statutory and regulatory regime
governing orders of the [FCC],” including the remedial
scheme of administrative review under 47 U.S.C. § 155and judicial enforcement and review under §§ 401–02.
379 F.3d at 1355–58. We held that the comprehensive
scheme displaces Tucker Act jurisdiction for, inter alia,
12 ALPINE PCS, INC. v. UNITED STATES
FCC decisions and orders falling within 47 U.S.C.
§ 402(b). Id. at 1358.
Here, the key question is whether Alpine’s contract
claims fall within § 402(b). That subsection provides for
appeals to the D.C. Circuit of FCC “decisions and orders”
“[b]y the holder of any . . . station license which has been
. . . revoked by the [FCC].” § 402(b)(5). Alpine’s contract
claims, which challenge the validity of the FCC’s cancella-
tion and revocation of its station licenses, fall squarely
within that provision.
The D.C. Circuit came to the same conclusion in 2014.
That court affirmed a district court order dismissing for
lack of jurisdiction the same contract claims we now have
before us. The D.C. Circuit explained: “Although camou-
flaged as a contractual dispute, Alpine’s suit really chal-
lenges the FCC’s decision to ‘revoke’ the licenses for non-
payment and thus falls squarely within subsection
402(b)’s bull’s-eye.” Alpine, 563 F. App’x at 789.
Alpine contends that it is not challenging the revoca-
tion of its licenses, but rather “the breach of a contract
that resulted in forfeiture of [the] licenses.” Alpine Reply
Br. 9. That distinction is an empty one. Subsection
402(b)(5) is not limited to review of the act of revocation
but rather allows for judicial review of the FCC’s underly-
ing revocation decision. In particular, § 402(b)(5) provid-
ed Alpine the opportunity to argue that the FCC’s
decision was contrary to the terms of the contract. See
Biltmore Forest Broad. FM, Inc. v. United States, 555 F.3d
1375, 1382 (Fed. Cir. 2009) (affirming dismissal of a
contract claim brought in the Court of Federal Claims
because “the District of Columbia Circuit not only has
exclusive jurisdiction to review the grant or denial of FCC
licenses [under § 402(b)], but also has exclusive jurisdic-
tion to adjudicate the underlying issue of FCC rules
compliance necessary to the licensing decision”—the
“exact issue [decided] in Folden”).
ALPINE PCS, INC. v. UNITED STATES 13
Alpine also argues that its contract claims are not
within the scope of § 402(b) because the D.C. Circuit is an
appellate forum “ill-equipped” to handle matters that
require “discovery, trial, and other relevant procedures.”
Alpine Br. 19–20. That contention is unpersuasive. In
addition to its powers to order supplemental briefing on
any relevant issue, that court has the authority to remand
the case to the FCC for any additional record development
that is necessary. See F.C.C. v. ITT World Commc’ns,
Inc., 466 U.S. 463, 469 (1984) (appellate court may “fairly
[] evaluate” even a claim of ultra vires agency action on
direct review under the Administrative Procedure Act
because, if the court “finds that the administrative record
is inadequate, it may remand to the agency” for further
proceedings); Harrison v. PPG Indus., Inc., 446 U.S. 578,
593–94 (1980) (direct review of agency action by court of
appeals under Administrative Procedure Act, even for
agency action without formal adjudication, is not irra-
tional because “an appellate court may always remand a
case to the agency for further consideration”).
Alpine itself, between 2002 and 2010, took advantage
of the Communications Act’s administrative and judicial
remedies and raised its contract claims before the FCC
and the D.C. Circuit. When the applicable regulations
threatened cancellation of the licenses in the summer of
2002, Alpine filed administrative requests for waiver of
those regulations and restructuring of the payment plan.
After the Wireless Communications Bureau denied those
requests, Alpine filed a petition for reconsideration by the
FCC, arguing, among other things, that the FCC
“breached fiduciary duties owed to Alpine,” including “a
duty of candor and good faith.” In re Alpine, 25 FCC Rcd.
at 506–07. The FCC denied the petition, and Alpine
proceeded to the next step in the remedial scheme—
review by the D.C. Circuit. There, Alpine argued that the
FCC breached its contractual obligations under the notes
14 ALPINE PCS, INC. v. UNITED STATES
and that “the FCC violated the implied covenant of good
faith [and fair dealing].” Final Br. of Appellant Alpine
PCS, Inc., Alpine PCS, Inc. v. FCC, No. 10-1020, 2010 WL
3253656, at *32, *35 (D.C. Cir. June 3, 2010). Alpine
asserted that the D.C. Circuit had “jurisdiction to hear
Alpine’s appeal pursuant to 28 U.S.C. § 2342(1), and[] 47
U.S.C. §§ 402(a) and 402(b)(5).” Id. at *1. The D.C.
Circuit summarily affirmed the FCC’s decision. Alpine,
404 F. App’x 508.
We hold that Alpine’s contract claims fall within the
exclusive jurisdiction of the D.C. Circuit under 47 U.S.C.
§ 402(b)(5) and therefore fall outside the Tucker Act
jurisdiction of the Court of Federal Claims.
C
We also hold that the same conclusion applies to Al-
pine’s takings claim: Tucker Act jurisdiction over the
claim is displaced by the Communications Act. The Court
of Federal Claims did not dismiss the takings claim on
this basis, and the government does not argue for lack of
jurisdiction on this particular ground. But we are inde-
pendently obliged to consider defects in the trial court’s
jurisdiction, even when not raised by the parties. See,
e.g., Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When
a requirement goes to subject-matter jurisdiction, courts
are obligated to consider sua sponte issues that the par-
ties have disclaimed or have not presented.”); United
States v. Cotton, 535 U.S. 625, 630 (2002); Mitchell v.
Maurer, 293 U.S. 237, 244 (1934). And the Supreme
Court has confirmed that federal courts have discretion to
choose which among several possible jurisdictional (or
even certain non-jurisdictional threshold) issues to decide.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584–
85 (1999); see also, e.g., Law Offices of David Efron v.
Matthews & Fullmer Law Firm, 782 F.3d 46, 51 (1st Cir.
2015). In this case, reaching the displacement issue is
particularly justified for at least two reasons taken to-
ALPINE PCS, INC. v. UNITED STATES 15
gether: first, the displacement issue is more straightfor-
ward than the timeliness issue, especially given that we
have already analyzed the issue for the contract claims;
second, the government’s brief argument in support of the
timeliness ground relies centrally on a decision, Soriano v.
United States, 352 U.S. 270 (1957), that itself leads to the
inquiry into whether another statutory regime displaces
the Tucker Act. Id. at 274–75 (holding that accrual of
takings claim was not postponed by the availability of an
Army Claims Service remedy where Congress “ha[d] not
so restricted the jurisdiction of the Court of Claims”).
Alpine’s takings theory is that the licenses are proper-
ty for purposes of the Takings Clause and that the FCC’s
cancellation of the licenses resulted, at some point, in a
taking for which Alpine was due just compensation. In
this court, the judgment on appeal is a dismissal for lack
of jurisdiction, not on the merits. And the government, in
its brief as appellee, has not contested Alpine’s premise,
which the Court of Federal Claims endorsed, that the
licenses are property protected by the Takings Clause.
Alpine PCS, 128 Fed. Cl. at 308–09. We take the premise
as a given (without deciding whether it is correct) for
purposes of assessing the jurisdictional issue.
What the parties have contested in their briefs is
when any taking at issue occurred and gave rise to a
claim for just compensation under the Tucker Act. The
government contends that the claim accrued before Janu-
ary 4, 2010—making the complaint in this case, filed on
January 4, 2016, out-of-time under the six-year statute of
limitations. In particular, the government contends that
the alleged taking occurred at one or more of the following
times: when the FCC canceled the licenses in 2002; when
the FCC informed Alpine that Alpine was in default and
that no action would be taken on the restructuring re-
quest in 2004; when the FCC Wireless Telecommunica-
tions Bureau denied Alpine’s waiver and restructuring
16 ALPINE PCS, INC. v. UNITED STATES
requests in 2007; or when the FCC re-auctioned the
licenses in 2008. The Court of Federal Claims agreed that
the taking, if there was one, occurred no later than 2008.
Alpine PCS, 128 Fed. Cl. at 309.
Alpine, on the other hand, contends that the alleged
taking did not occur, and the claim did not accrue, until
January 5, 2010, when the FCC reached a final decision
not to waive the automatic cancellation provision of the
amended regulations. Alpine relies on Supreme Court
decisions that have articulated two “ripeness” require-
ments applicable to certain regulatory takings claims
(against state or local government entities): a sufficiently
definitive decision about the injury to the complainant’s
property from the government entity alleged to have
committed the taking; and a sufficiently definitive denial
of just compensation for such a taking. See, e.g., Palazzo-
lo v. Rhode Island, 533 U.S. 606, 618–26 (2001); Suitum v.
Tahoe Reg’l Planning Agency, 520 U.S. 725, 733–34
(1997); Williamson Cty. Reg’l Planning Comm’n v. Hamil-
ton Bank of Johnson City, 473 U.S. 172, 186, 194 (1985).
The Court has also discussed the Williamson County-
based ripeness requirements in Horne, 569 U.S. at 525–
26, a case involving the federal government. The parties
here dispute the scope of those decisions and whether and
how they apply in this case to identifying the accrual date
of a claim for Tucker Act compensation, notwithstanding
the availability of relief from the FCC and the FCC’s final
denial of such relief on January 5, 2010.
The government relies for its pre-2010-accrual argu-
ment on the Supreme Court’s decision in Soriano—which
the cited Williamson County line of cases does not discuss.
The Court in Soriano held that a Tucker Act claim for just
compensation accrued at the time of a war-time requisi-
tion of material from the plaintiff (by Philippine Army
units assertedly acting under the authority of the U.S.
Army), whether or not the plaintiff had yet sought com-
ALPINE PCS, INC. v. UNITED STATES 17
pensation from another government entity, the Army
Claims Service. 352 U.S. at 274–75. The Court stated as
its ultimately decisive rationale that Congress “has not so
restricted the jurisdiction of the Court of Claims” to hear
a just-compensation claim for a completed taking based
on the availability of a potential other avenue of relief.
Id.Soriano thus suggests that, even to decide the timeli-
ness issue in the way the government has argued it, we
would have to examine whether the Communications Act
remedy displaces Tucker Act jurisdiction for the govern-
mental action challenged as a taking here. In any event,
an examination of that question leads to a conclusion of
no jurisdiction in this case without routing that conclu-
sion through a determination regarding timeliness. Just
as we concluded that the Communications Act displaces
Tucker Act jurisdiction over Alpine’s contract claims, we
conclude that, as relevant to Alpine’s quest for relief
under the Takings Clause, the Communications Act
provides “a ready avenue to bring [a] takings claim” and
“withdraws Tucker Act jurisdiction.” Horne, 569 U.S. at
527–28. Finding such displacement of Tucker Act juris-
diction, we need not further explore the timeliness issue.
There is no disagreement between the parties about
the proposition that the FCC had the power to grant
Alpine adequate relief, by eliminating the taking, provid-
ing compensation, or some combination. Thus, Alpine
insists that the FCC could have done the following:
forgiven any amounts still owing on the licenses,
concluded that Alpine was entitled to a refund of
some or all the amounts it had already paid, pro-
vided equivalent spectrum or other compensation
to the holder of the spectrum [after re-auction]
and awarded the [original] spectrum to Alpine,
awarded Alpine licenses of equivalent value, pro-
vided Alpine with a voucher representing the
18 ALPINE PCS, INC. v. UNITED STATES
amount to which Alpine was entitled and permit-
ting the value of the voucher to be used or as-
signed to third parties in future spectrum
auctions to acquire alternative spectrum, or taken
any number of other remedial steps had it con-
cluded that the [Wireless Telecommunications]
Bureau decision was erroneous.
Alpine Br. 24. The government, for its part, has not
denied that the FCC could have provided Alpine adequate
relief. 3 Significantly, compensation in a form other than
monetary damages can be constitutionally adequate. See
Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 150–51 (1984)
(“No decision of this Court holds that compensation other
than money is an inadequate form of compensation under
eminent domain statutes.”). The displacement question
before us therefore is limited to a situation in which the
parties do not dispute the adequacy of the non-Tucker Act
remedial regime both to adjudicate the takings claim and,
if a taking is found, to provide the constitutionally re-
quired relief (by curing the taking, providing just compen-
sation, or some combination).
The Communications Act, including 47 U.S.C.
§ 402(b), readily supports the conclusion that, as relevant
to Alpine’s grievance, there is a comprehensive statutory
scheme through which Alpine could present, and is di-
rected to present, its takings claim, to the exclusion of the
Tucker Act under the Horne analysis. As for relief at the
3 See also Oral Argument at 28:40–29:00,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
17-1029.mp3 (during oral argument government counsel
stated, regarding Alpine’s list of compensation options,
that, “Yes, then that would be the case. . . . I cannot say
that there’s nothing that the FCC could have done to
provide them any sort of remedy.”).
ALPINE PCS, INC. v. UNITED STATES 19
agency level, there was no procedural impediment to
Alpine’s presenting a takings claim to the FCC. The FCC
did not suggest that it lacked the authority to review the
license cancellation and take steps to provide compensa-
tion. See generally In re Alpine, 25 FCC Rcd. 469 (FCC
review of Alpine’s requests to waive the automatic cancel-
lation rule and to restructure the payment plan); see also
In re Alpine, 22 FCC Rcd. 1492 (Wireless Telecommunica-
tions Bureau review of Alpine’s requests). Nor would
Alpine’s takings claim have been futile in agency proceed-
ings; for example, Alpine’s claim would not have required
the FCC to question the constitutionality of a statute. See
Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (noting
general rule against agency authority to deem statutes
unconstitutional). And the FCC is generally under an
obligation not to take action contrary to the Constitution
and to hear properly presented constitutional claims. See
5 U.S.C. § 706(2)(A), (B) (providing for reviewing court to
set aside agency action that is contrary to law, including
Constitution); FCC v. Fox Television Stations, Inc., 556
U.S. 502, 516 (2009); Graceba Total Commc’ns, Inc. v.
FCC, 115 F.3d 1038, 1041–42 (D.C. Cir. 1997) (“The
Commission has an obligation to address properly pre-
sented constitutional claims which, like this one, do not
challenge agency actions mandated by Congress.”).
In any event, the judicial review scheme under the
Communications Act squarely covers Alpine’s grievance.
Alpine’s takings claim (like its contract claims) is based
on the FCC’s cancellation of the station licenses, a deci-
sion that falls squarely within the judicial-review provi-
sion, 47 U.S.C. § 402(b)(5). The very purpose of the
provision is to provide a remedy for licensees, like Alpine,
that have suffered an injury from an FCC licensing deci-
sion. Such parties are the “one[s] likely to be financially
injured by the issue [or revocation] of a license” and “the
only [ones] having a sufficient interest to bring to the
20 ALPINE PCS, INC. v. UNITED STATES
attention of the appellate court errors of law in the action
of the [FCC] in granting [or revoking] the license.” F.C.C.
v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940);
see also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 394 n.8
(1987) (noting that § 402(b) “grant[s] an explicit right of
review to all persons adversely affected or aggrieved by
particular . . . licensing actions by the [FCC]”). That
remedial scheme provides for judicial review of constitu-
tional challenges to the license cancellation. See Alvin
Lou Media, Inc. v. F.C.C., 571 F.3d 1, 8 (D.C. Cir. 2009)
(“This court ‘permit[s] both constitutional and statutory
challenges to an agency’s application . . . of a previously
promulgated rule, even if the period for review of the
initial rule has expired.’”) (quoting Graceba, 115 F.3d at
1040)). And upon review of Alpine’s takings claim, the
D.C. Circuit was capable of ordering any appropriate
relief, whether on appeal or on remand to the agency.
See, e.g., QUALCOMM Inc. v. F.C.C., 181 F.3d 1370, 1381
(D.C. Cir. 1999) (ordering FCC “to take prompt action to
identify a suitable spectrum and award QUALCOMM the
license for it”).
Under the comprehensive statutory scheme, then, Al-
pine could have raised a constitutional takings claim; the
FCC had the authority to grant relief; and the D.C. Cir-
cuit had jurisdiction to review whether a taking occurred
and, if so, whether the FCC decision “yield[ed] just com-
pensation.” Williamson Cty., 473 U.S. at 194. The statu-
tory scheme thus affords Alpine “a ready avenue” to bring
its takings claim and displaces Tucker Act jurisdiction
over that claim. Horne, 569 U.S. at 527–28. This conclu-
sion, though statute-specific, accords with similar conclu-
sions we have reached under other statutes. E.g.,
Innovair Aviation Ltd. v. United States, 632 F.3d 1336,
1342–43 (Fed. Cir. 2011) (holding that Tucker Act juris-
diction over takings claim based on forfeiture of property
seized pursuant to 21 U.S.C. § 881 was displaced by the
ALPINE PCS, INC. v. UNITED STATES 21
Controlled Substances Act’s scheme for administrative
and judicial review) (citing Vereda, 271 F.3d at 1375(same)); Lion Raisins, Inc. v. United States, 416 F.3d
1356, 1370, 1372–73 (Fed. Cir. 2005) (affirming dismissal
of takings claim for lack of jurisdiction under the Tucker
Act because the “administrative and judicial review
procedures available under 7 U.S.C. § 608c(15)(A) provide
a remedy to recover the value of the rights alleged to be
taken”).
III
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
AFFIRMED