Northwest Public Communications Council v. Qwest Corp.

FILED
NOT FOR PUBLICATION AUG 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST PUBLIC No. 10-36077
COMMUNICATIONS COUNCIL;
UNIDENTIFIED PSPS A TO Z; NPCC D.C. No. 3:09-cv-01351-BR
MEMBERS, Central Telephone, Inc.;
Communication Management Services,
LLC; Davel Communications, aka MEMORANDUM*
Phonetel Technologies, Inc.; Interwest Tel,
LLC; Interwest Telcom Services
Corporation; NSC Communications Public
Services Corporation, National Payphone
Services, LLC; Pacific Northwest
Payphones; Partners in Communication; T
& C Management, LLC; Corban
Technologies, Inc.; Vally Pay Phones, Inc.,
Plaintiffs - Appellants,
v.
QWEST CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted May 7, 2013
Portland, Oregon
Before: GOODWIN, REINHARDT, and BERZON, Circuit Judges.
Plaintiffs-Appellants Northwest Public Communications Council, along with
numerous other groups (collectively, NPCC), appeal the dismissal of their federal
claims as barred by the relevant statute of limitations. We review de novo, Geweke
Ford v. St. Joseph’s Omni Preferred Care, Inc., 130 F.3d 1355, 1357 (9th Cir. 1997),
and affirm.
In this context, an action to recover damages must be brought within two years
of accrual, and an action to enforce an FCC order for payment must be brought within
one year of the order. 47 U.S.C. § 415(b), (f).
In Davel Commc’ns, Inc. v. Qwest Corp., 460 F.3d 1075 (9th Cir. 2006), this
court addressed the operation of § 415's time bar. The Davel court, agreeing with the
D.C. Circuit, found Davel was on inquiry notice of its claims against Qwest beginning
on the deadline by which Qwest failed to file fraud protection rates. Id. at 1091-92
(citing Sprint Commc’ns Co. v. F.C.C., 76 F.3d 1221 (D.C. Cir. 1996)). The Davel
court explained:
As soon as Qwest failed to file fraud protection rates . . . it was in
technical non-compliance . . . and Davel was on inquiry notice that it
might be paying excessive rates for fraud protection. . . . The fact that,
until Qwest filed its new fraud protection rates in 2003, Davel was not
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in a position to determine the precise amount of the overcharges, or even
whether the charges were excessive at all, does not change this result.
Id. at 1092 (emphasis added).
Here, NPCC’s filing of the “Rate Case” in 2001 is the most obvious example
that NPCC was on notice of its claims against Qwest. The district court correctly
found this date sufficient to trigger the running of the limitations period. We also note
that Qwest’s filing of new rates in the wake of the 2003 Wisconsin Order, and the
PUC’s approval of those rates, also put NPCC on notice as to its claims; the 2003 rates
indisputably notified NPCC that the rates it was paying earlier were too high.
NPCC raises a litany of reasons to support its failure to file the claims earlier.
None are persuasive.
NPCC’s separation of powers argument fails. Even if the district court lacked
the power to determine actual NST compliance, that is, what rate would bring Qwest
into compliance, that question bears only on damages and the court could still
rightfully determine liability. See Davel, 460 F.3d at 1092.
NPCC’s administrative exhaustion argument fails. There is a difference
between statutorily-required exhaustion, and exhaustion as a prudential doctrine. See
W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1195-96 (9th Cir. 2008). NPCC
has pointed to no statutorily-imposed exhaustion requirement. Cf. 47 U.S.C. § 207-3-
(suit for damages actionable in either FCC or federal court). Nor has NPCC provided
any authority to establish that if a prudential doctrine might have been invoked, it
prevents accrual of that claim. See, e.g., Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047
(9th Cir. 2001) (exhaustion of judicial and administrative remedies in § 2241 habeas
case is prudential, and therefore subject to waiver of the requirement), abrogated on
other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).
NPCC’s ripeness argument also fails. While the ripeness doctrine precludes
adjudicating premature disagreements over administrative policies before formal, final
determination, Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 461 U.S. 190, 200-01 (1983), the dispute here concerns Qwest’s obligation
to pay refunds, not the actual correctness of any determination as to proper NST rates
by the Public Utility Commission.
Finally, NPCC’s reliance on the filed rate doctrine fails. The filed rate doctrine
“bars suits challenging rates which ‘if successful, would have the effect of changing
the filed [rate].’” Davel, 460 F.3d at 1084. Again, this suit does not challenge filed
rates. Thus, none of NPCC’s cited doctrines would have had the effect of preventing
adjudication in federal court prior to the final determination of NST compliance, and
therefore they fail to establish that NPCC’s claims had not accrued.
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NPCC then argues for the application of equitable tolling, an argument the
district court properly rejected. NPCC was represented by counsel and, as discussed
above, had knowledge of its possible claim. See Johnson v. Henderson, 314 F.3d 409,
414 (9th Cir. 2002) (equitable tolling looks to whether reasonable plaintiff would
know of possible claim; retaining counsel typically ceases tolling). This case does not
support application of judicial estoppel either.
In sum, we affirm the district court’s dismissal of this case as time barred. We
do not reach other issues briefed and argued.
The parties’ outstanding motions to strike are all DENIED.
AFFIRMED.
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