ok mr estrada we will hear from you first think you go to dolly and me please the court the fundamental question in this case is where the firk most go to federal district court when it seeks monetary penalties often  thousand b is only available to review orders of the commission when they are final and in the context of into look at dory appeals of non final agency orders even if the agency is otherwise engaged in some in some case and that is not allowed the rule in the context of section one thousand is that the review must await the end of the case it is because of considerations of rightness that have to do with the administrative process itself and it seems to me that the fundamental difference is and this is why even the district court in this case did not believe that e t p was an apt case for the government here is that in that case they were using an appellate mechanism that could not come into being until the case was over that is not what we did here it is to be sure what the government thinks we should do which is going to the merits of the case really gets to the meat of basal cole thunder basin question now the district court believed that there was this is a whole thunder basing problem and in our view thunder basin and its progeny have nothing to do with this case in order to understand why i think it is important to ask what thunder basin and elgin and cases that apply this agency and there is absolutely no doubt whatsoever that the same statute expressly gives the only route to federal court to the court of appeals what cases like that do is you have somebody coming in and saying although we have a very believe we would like to have our constitutional claims adjudicated outside of that process and we don't believe that congress intended for our precious constitutional claims to go through the process now the nature of that problem is very different from the problem that we bring you because in those cases of channeling it is abundantly clear what the channel this in this statute or our contention is that since one thousand thirty eight congress has had two channels or the thunder basin cases that involve the general questions character the issue in this case is simply one of statutory construction and the recognition that congress in one thousand thirty eight said violations go exclusively to federal district court and orders go to the court of appeals now under the commission's view so long as they slap the title order on something twenty four will never come into being except as a mechanism for electing money that is we don't have a view that section twenty four completely each section nineteen we think that there is an appropriate role for each of the sections on the basis of the contemplation of the into the congress and the appropriate division is as follows if the agency is trying to do something that it believes goes to a court of appeals it has to point to a part of the statute that has an active verb that allows them to look to the kate to find to determine to impose or to do the commission and the commission is seeking a criminal penalty or a monetary penalty or an injunction it seems very clear to us that those cases get channel to the federal district courts under section twenty four now and why it is in this situation that there's a what a show called ordered says they're proposing this fine and asking for a response so we're we're still in the process of them deciding if you should be if your client should be fined and how that fine should be now i think in all practicality didn't intend to go to district court but but do we know yet if it's it if they're going to go if they could still go to district court and right now you're in the stages of them making a determination as to what type of wind there should be and then going to district court or are we premature in getting here because we don't know yet given the the history in the procedure anticipation of a lawsuit that could be or is threatened to be brought against him later so say for example i have a maritime contract for the shipping of widgets and it says that all of the disputes will be solved by a court in hong kong the other side sends me a letter saying actually i have a dispute with you and i'm going to see you in greene county alabama where the juries are very unfriendly to folks like you i run into federal district court on diversity and ask for a declaration of the correct form is hong kong order we're asking for a declaration of the correct forum for the prosecution part of their of the process that you actually just described the commission has undoubtedly and we don't question power to investigate him to bring charges and what this case is about is once they get to the point where they say we intend to bring charges in and in in house court and we don't think that's authorize that is the same as sending me the letter telling me i'm going to see you in the green county alabama even though the contract says hong kong and at that point where the investigation has concluded and they are in fact filing charges in effect filing the co point is they're authorized to act as a prosecutor but only the federal court can adjudicate and that's where when they made their intention clear to proceed in a forum that we believe is unlawful that is way why we went to the federal district court now that raises a question of rightness to be sure but is a different question a rightness than the question that was had an issue in the partners which has to do with finality and considerations that go with review of orders which is not what we're doing the view or the hypothetical that you just outlined you could conceivably say let's see how it turns out maybe we don't have to decide whether this should be class or individual because only a few moves without question be to be right in that  court swatted to the challenge based on rightness to the back of the hand saying look it's very different to have to undergo an unlawful process and have to incur the additional expense that is an injury that is occurring now  therefore there is rightness enough to decide the correct for on class arbitration or individual arbitration even though these questions may go away and it seems to me that that question is completely controlling and be correct and right point and it is ask you to look at footnote seven of the supreme court made immune case because what was at issue there was a variant of the government that the argument the argument of the government made under the district were adopt and we do we have a very concrete controversy on who gets to decide this question where the venue for this accusation is and the answer is enormously practical because if you confirm our view that this is merely an we don't have to spend a gross national product of what's what now defending in this forum just in case we can sit back and wait for the proper forum and use our resources for the defense of the action where it actually will be that's a very useful thing to ha if i could say something about the merits because i know that my terms of the meet there are on each side two more minutes each side two women think a good golly you know i said at the outset that in my view there is a way to actually deal with each of the alternative channels that congress provided and that is to ask the commission where do you get the authority to be in this venue what is the active verb in what provision of the now the commission says well if you read second twenty two a b and c you see a reference to a hearing and that means we've got a hearing and we get to decide they're reading the the statute in the wrong order but i think what is important to understand is that the hearing is not on the record is not a formal hearing it doesn't have to have any real process before you enter the cave is impossible of congress would authorize the confiscation of hundreds of millions of dollars based on an exchange of briefs and more relevantly here you know the test of tell me what is the the see john that would be fall under the statute as you interpret i believe that the commission has an investigation per power under sections fourteen fifteen sixteen etc then if we believe that he wants to accuse us it has a hearing like a grand jury has a hearing  you get invited to give your size your side of the of and it may or may not change you know the view of the prosecutor and then there was an accusation and the question in this case is and that's where the commission's role stops under section twenty two and section but million if you go to trial our experts may find that you always five billion and you may never see the inside of a federal court which in our view will be the court of appeals for the next five years there is no business that can operate that way and it seems to me that we're entitled to a declaration that that's not the way that he should be if i could just say one final point on the reading up statute which i think is key to understanding why the reading is implausible apart from the reasons that we give it keep in mind that congress has done just penalties in other for st two is copied at twenty eight twenty two a twenty two b twenty two c is copied from the first three sentences of section thirty one c of the power act under the commission's view those but only of the accused consents it cannot be that the same identical language in the federal power act does not confer the adjudicative process because otherwise it would be redundant but somehow having been lifted from the f p a into the n g a confers on a duplicate a process that is not mention it seems to us that the correct then friends is that both statues started from the one nine hundred thirty s with a background rule of exclusive jurisdiction for federal court section three seventeen in the power it was a natural gas company queues violating the market manipulation provisions of the natural gas act and they argued they mean exactly the argument if the court recounts in its opinion the plaintiffs make here they said hold on we're entitled under section twenty four to have you bring that case in the district court in the first instance this entire proceeding is unlawful from the outset that was the argument and this court said first nothing in the natural gas act so clearly precludes the commission interpretation that we can just stop this proceeding right now and second what this is like is the supreme court's decision in the standard oil case where again there was that was that trade commission there was an ongoing agency proceeding in a party similar to the plaintiffs here filed the district court action and said that whole proceedings unlawful we wanted to declare that the whole proceedings unlawful and what this court said in the tepee was this is just like standard oil and it can't proceed for the same reasons and as the supreme court s standard oil all of these objections can be raised at the end of the day if the commission issues an adverse order we haven't gotten anywhere near that and then we got to as you said judge came earlier the final sentence the opinion which says what were the final or litigate the case he says that you have the authority and power to conduct proceedings and investigations and make certain determinations and and have certain hearings and allow people to and then you come out w entitled to raise that argument well i mean there are certain words like exclusive jurisdiction that is correct yes it means exclusive exclusive means exclusive in the question is exclusive of what and i was glad to hear it as exclusive of all violations of this slave to your counsel this morning raise the manning case that's the merrill lynch versus manning case in the supreme court from just last term that was a case in the supreme court construing the equivalent provision of the securities and exchange act it is the bait him the same as the same exclusive language statutes they cited in the supreme court's opinion and in the district court opinion in this case the courts at first we read them all very similarly we read them to have the same meaning and they said what this does is create arising under jurisdiction in the federal courts now someone the excluded him from from participating in the securities exchange market and he said hey this in forstmann action has to be brought against me in district court under this language which says exclusive jurisdiction belongs in the district court and the second circuit said no that's not what that means this is the direct holding of the court and said that's not what that language means what that language means is it provides jurisdiction in the as opposed to state courts or to rethink nine forty your honor i don't know but you're right that was two years after the distraction was enacted and the supreme court said in manning at that that's also a long time before two thousand and five when we two thousand popping them and i'm glad to raise that because it's important understand the ramifications of plaintiff's argument they say oh it's all different because now in two thousand and five is when this changed what the natural gas act has had section twenty four and that exclusive language provision since one nine hundred thirty eight and since one nine hundred thirty eight the commission has been adjudicated violations of the natural gas act at least three instances which this court affirmed them using the word violation of the natural gas a raised this issue that under under their theory every single one of those cases had been brought in district court in the first instance and i would add as what i noted before that there are ten different federal statutes that include the same language in the supreme court said they should all be read together under none of them not one has a court a district court or a court of appeals held that it requires the agency to bring in an foresman action in district court in the first instance but now is it true that all of those federal courts have exclusive jurisdiction of all violations of this chapter your honor and what that means as the second circuit held in right and as the second circuit by the way held again in one nine hundred seventy nine in the case that they rely on is that the agency has its proceedings and that state courts have no role in the adjudication of such questions but i mean that seems to be made up of home no your honor that's not true because i mean ok tell me where you get and when congress provides that for example patent laws there's exclusive jurisdiction certain types of land cases exclusive jurisdiction and when congress provides for exclusive jurisdiction in the original jurisdiction of a district court what it means is exclusive provision that section twenty four of the supreme court also talked about it in the merrill lynch case from last term what that provision does is it expresses congress judgment during the new deal that disputes over the meaning of these ten new deal statutes are for federal courts alone to decide and remember in one nine hundred thirty eight there was still an amount of controversy requirement for the federal question jurisdiction the supreme court said in the merrill lynch case if the court itself observed that it's arising under jurisdiction at that time was confused and so what these statutes do is say look we are not doing all of these new new deal era statutes and disputes over their meaning are for federal courts to resolve their exclusive because normally as your honor is aware if we had a contract case and we disputed it comes and i'll drop here is that that's what you say it said not says that's what you say that appear on the face to be contradictory to what kind of lessons can we draw from that i think the lesson that we draw from that your honor is that congress was very well aware of how firk did in foresman proceedings that had they had been done for seventeen years before the two thousand amendments it had been adjudicating violations of the natural gas act for seventeen years and when congress in two thousand and five after the enron crisis in the western energy crisis in the sense that first didn't have sufficient authority to deal with market manipulation of exactly the type plaintiffs are accused here they said all right we're going to give you for additional our civil penalty authority if congress thought that for all of these years had been misunderstanding what section twenty four did that would have been the time you would expect them to say so but when congress reenact the statue in this is a familiar principle the lorillard principle when congress reenact the statute against a very long history of administrative adjudication under that statute and does not  and the court said that's effectively a civil penalty and although you can adjudicate these violations congress hasn't given you civil civil penalty authority that's what congress did in two thousand and five it said ok here's the civil penalty authority that had been missing from your statute it didn't change the way adjudications it happened this court in the cost of gas affirmed the commission's ability to find a violation and what it did was added an additional authority  if you accept their interpretation would you have to to hearing from him would a commission have a hearing and then you have a dyno trial before the district court and everything to happen before we would have to figure all that out because it's all made up no one has ever construed these statutes to work that way i think plaintiffs counsel in the district court transcript was asked about this by the district court who said how exactly do you think this is supposed to work and he said well the commission could have a hearing if they wanted or they could give up it wouldn't really matter and i think the fact that he can't point to any example of a statute that works that way is pretty telling and i was also glad  was saying is we would have a dress rehearsal and a commission and then we'd have a real the real mccoy in the district court right and there's no reason to think that that's what congress meant and if i am right it has not been for eighty years under this statute i would also add he puts a great deal of emphasis on the declaratory judgment act and i just want to go on two thousand and amendment and to the procedure that  violations of whoever violates this actual be subject to a civil penalty to the commission assesses the civil penalty after notice and an opportunity for hearing the practice before that the practice before then under the natural gas act was that there was no of that went to the court of appeal explicitly that's correct if that actually reminds me i'm glad you raised this tells a question whether the provision for direct review in this court is really exclusive under the natural gas act i think it's helpful to look the first this court has held so that's the atlantic gas case in the one nine hundred eighty s where the court held that a district court lacked jurisdiction to issue a declaratory judgment that a commission proceeding was unlawful a declaratory judgment was held unlawful and in permissible by this court in light of section one thousand b c i think that controls plaintiffs argument here that's the atlantic gas case but i also think it's helpful to look at the supreme court's decision cited in our brief in city of tacoma that's a case involving the federal power a the question there was was the direct review provision in the federal power act which is materially identical to the natural gas act explosive did it create ex an exclusive avenue for review in the court of appeals and the supreme court said it the avenue for reviewing this again interpreted the provision materially identical to the provision here was quote specific complete and exclusive and quote and that any objection to the commission orders had to be read as quote in the co of appeals or not at all and what and one thing i think is helpful about that again supreme court decision interpreted materially identical language is that of course as counsel stresses the federal power act has also has language that provision exclusive jurisdiction provision that the natural gas has so if he was correct that the that language and its plain meaning means that each of these have to bring actions in the district court then the supreme court was wrong in  city of tacoma and holding that there was exclusive appellate jurisdiction all but again i mean this issue has not been raised it's not been raised before but i don't think we ought to adopt indulge the assumption that the supreme court didn't read the rest of the statute in city of tacoma when it held that that was  and i think that this has been joined in d c circuit as well it's to be argued next it's going to be in banking and it but there are other constitutional issues here involving the seventh amendment because you indicated that for the first to that's not right the told decision in the supreme court holds that civil penalties don't have to go to a jury in that case they want a district judge but if they don't have to go to a jury then there's no seventeen an issue also more generally under the atlas case in the supreme court if a matter can be constitutionally given to an agency pup this is the so called public rights doctrine addressed by the supreme court most recently in stone versus marshall if a matter can be given to and article to an administrative agency for adjudication in the first instance then the seventh amendment does not impose any separate hurdle to that adjudication what's necessary and we agree with this is that there has to be an opportunity for article three review and no one disputes in this case that all of the arguments they want to raise can be raised under direct review if the commission actually concludes that they violated the act and they file a proceeding for direct review in this court and that brings me back to the tepee case that was the holding of this court in e t p and it would be pretty simple the constitutional take into account the fact that the commission in this very case has issued an order excluding every member of the enforcement team who was involved in the investigation of plaintiffs from advising the commission with respect to this investigation so it's just on its face statutory language and then you ask whether construction that would avoid the constitutional question that is i've never seen that principle invoked to hold that because there might be not yet in a proceeding not yet held a constitutional issue an proceeding that as a result we throw over the entire administrative scheme and go to district court because of course due process violations of the court knows can can happen again or tory judgement and end and i'm glad coming back to that because the declaratory judgment act is it an exception to the exclusive review provisions that in standard oil itself which this court held in in e t p that their argument was effectively the same as standard oil in standard oil itself the plaintiff sought  declaratory judgment that the f t c could not proceed and the supreme court was clear about that in a footnote they cite they would note the pleasure relying on section twenty two one does mr start on the side of this one but the court held that that was appropriately dismissed likewise this court's decision in atlanta gas involved a district court that was entertaining a request for a declaratory judgment that occurred ongoing commission proceeding was unlawful and this court said entertain that was appropriately dismissed because entertaining a declaratory judgment would be impermissible interference with an agency proceeding there isn't any question that they get to have review of this case these issues they're entitled to raise these issues but they're not entitled to do it before there's been any adjudication of violation  the supreme court in the maryland case last term talked about how all these provisions should be read to have the same effect effect section twenty four in all ten statutes in which they appear in none of those statutes has the language of those equivalent the equivalent provisions been held to mean that an agency must go to district court in the first instance the as we noted the second circuit has twice rejected that argument but there are lots of other agencies that would be affected and what he's asking for is the plain language holding that that that same language means that each and c's have to go to district court we are what far too much water under the bridge for that conclusion and that would disrupt administrative proceedings across the government i would only just add that  contention that the agencies are required to proceed in the disk or in the first instance is also at odds with a backup i think it's telling that in an argument in which they come to this court and say this is the obvious meaning of the statute they don't say a single case from any court holding so or holding that the district court may properly issue an injunction or even a declaratory judgment to stop a pending further proceeding this is a statute that's been around for eighty years it is not an accident that no one has ever done that this would be the first case in the court should reject that invitation and hold as it did in e t p that the correct resolution of the meaning of the natural gas act which the court does not need to decide if it prefers not to sho try to cover as much of the i am the less learned but i speak as quickly i hope let me start with d p p which i believe the government has read with a heavily wrestling lens i don't have enough time to do it full justice but  power act which is one of the statute they natural gas act and the very well known connelly hot oil act which i'm sure comes up every day in courts of the united states and this is not an issue for the following reason the f c c has his own statute that authorizes in housing education in cases like this the federal power act thirty one d authorizes it in certain context as i pointed out earlier and so the irony of this case is that they have an explicit  zation for educational penalties in a section that congress didn't lift into the statute they lift that thirty one thirty but not thirty one d it would be in congress to say that in this thing thirty one see i'm putting it in the statute congress also put in the out the where in the statute they get to impose determine fine order etc and he he was here for almost thirty minutes and did not point to any language in section four a or in section twenty two that allows them to impose a du determined fine etc but what's the purpose of section one thousand and it said that you have a right to appeal to the appellate court it seems to me that it's saying you have a right to appeal to the circuit court the decision of those cases when they exercise that authority would go to the court of appeals what's missing here is anything in section four a or section twenty two and like find determine or impose and if i could to make very important this point because there were two examples quoting impose a civil penalty if it finds you know the violation after hearing on the record very different from what we have here there is an expressed requirement of an expression of an on the record formal and so i am not saying that everything is going to go to federal district court i am simply saying if you have no language from congress telling you that you get to adjudicate in a case in which the constitution or otherwise would ordinarily require in  three court and where congress did not give a reason as to why it might want to take this cases out of the district courts as the supreme court said it should in the sheriff's case there that there is no basis for them to act in a way that has never been authorized by the congress i am out of time i have other things to say but here we are ready been very indulgent with us i thank you very much