as in the martin case which i i realize is an unpublished ninth circuit case but it is one of the few cases that has shed light on the interplay between bivins on the a p a after the supreme court's wilkie decision the facts there are similar that in martin the alleged retaliatory actions were quote perpetually open rendering the a p s provision for judicial review of quote final unquote agency actions perpetually a loser e and thus unavailable here the district court erred in finding that the plaintiff had alleged final agency actions in all of his claims that were therefore reviewable under the a to the contrary the allegations regarding many of the forest service communication sites involve a perpetual failure to act on plaintiff's applications placing him in administrative l because in that case number one the case law had not yet developed about when specifically of its action would be available when there could also have been  say that with regards to the other claims which which i know we'll get to if i think then the court would have to look at the whole picture as to whether at the summary judgment stage as to whether there had been a constitutional violation those other finally agency actions could be used as evidence but they are not separate claims under bit ok so you agree with my first question did with your provisos with respect to the actions and i'm not sure here the a challenge anything  challenging something that's not a final agency action doesn't that mean your a p a claims fail it no with respect i think that means there is no available a p remedy but you are you have a bunch of claims in your complaint as i read it that say the agency was arbitrary and capricious in not doing certain things correct failure to act player to act and if those are not final agency actions how are they i don't think they are because of the situations in which they are not then my next question which is the one i really wanted to get into is don't you have to establish that you had a right to some action let me give you an example identify a duty on the part of the government to act yes however under bivins under the constitution i would submit your honour's under the willowbrook case which was from the supreme court from twenty something years ago and under put my question is still the same if if the agency has no do you do something for your client does it matter if they're not doing it because they don't like them i think what  the case said is that the government has a duty to not discriminate against people when they grant some permits and others they never grant or they sit in limb about you know making an equal protection claim you're not arguing that somebody else treated better than you you're just claiming you were treated badly actually that's not true there and that's what a question one claim is right well that's the one place i was discriminated against i can't i can identify somebody else who is favored not a class  ok difference between equal protection class of one in the and the classic racial let's say equal protection is that you know equal protection class when you don't have a class of people who were discriminated against there's only you but there are other people who are treated better than you so here we have the other communications companies that these sites that are being given lease renewals and that are being allowed to proceed as they have in the past decades and here he is not so it is we are alleging an equal protection class of one  was it was antagonistic to the local government and the local government retaliated allegedly by not acting on permits and that was one of the types of retaliation  he filed suit he was he had a full range of administrative appeals going on here the district quit noted at thirty two thirty seven forty that there was no appeal for denial of lease lease  r thirty four that there was no appeal available for the trespass notice there was no appeal for failure to review plaintiff's development proposal that c r thirty eight even if there's no appeal is there i don't think there a you would you deal with the claim as it is but you're just subject to whatever the agency does in that particular matter and it isn't a big enough deal because you really don't have anything in your contract to give you out that the the district kind of glossed over the claims that involved in complete failure to act which was in the complaint in paragraph twenty but the failure to act i don't think the court just record cost over them but whether it did or didn't doesn't matter the for you to act was the failure to give you something that you thought you were entitled to write a renewal of the lease permit etc correct well if you're saying it is  duty to give somebody illegally a school duty i'm asking a very simple question or your failure to act claims were that the agency failed to do something that you wanted it to correct correct there was an application that was to the actual final and action which is all the leases being taken away from my client but in the meantime there were these failures to even look at certain applications my client had submitted and that  was to look as effective denial of your application then we could review them under the a p a right i think that's correct and then we could determine whether or not there was some substantial basis in the record for the agency it affected  year application because he didn't act on it correct and then the other thing that was was not reviewed by the district court was that we had challenge to the forest services new interpretation that made all of these decisions on that allowed the forest service to basically literally put mr oberg our friend western radio in limbo for many years until they figured out a way to take away his entire system of leases and i  good morning your honors may please the court sean martin for the defendants and for the u s senate's counter claims i ask that you affirm the district court's judgment now on the on the bivins there really isn't any daylight we can't really say you don't have a bit of a dramedy because the a p a covers it so i was raising i would say the great majority of these a p a claims are challenges to decisions and denials right and those those are easy the question is with respect to challenge action are those reviewable under the a p a should we treat them in effect as deny all of the applications and review and see whether or not the agency had a substantial basis for doing so we're i'm not i'm not sure which ones w talking about but as an example let's i know that one of the western radio claims was there was a supposed duty by the forest service to remove its own facilities around a mountain and the amended complaint that's in the record before this court alleged that there was a duty and a requirement that to remove you know supposedly unused facility from around mountain but the forest service didn't do that now then fast forward to the briefing on that very claim before this court there's simply no mandatory duty identified in a to that you know the reason you didn't remove it even though you didn't have a duty is because you hated me what would work now could put the bivins claim back into the context of our prior litigation and it doesn't go away because there's a remedy do we have to rule on its merits or i don't think so judge i mean first of all we view it as a failure on western radio's part to support that potential failure to act claim under section seven zero six one right may have been available claim but western radio failed to do its part to tether that claim to an actual mandate in a statute or regulation so that's how we look at it we would also say that and you know as the as this court and observed in the western radio decision in two thousand and nine even though the a p a may not be a comprehensive scheme or comprehensive remedy it's still available and it need not cover every single claim or provide monetary damages so here when you have so many of these claims squarely covered by a record that was reviewed in great detail by the district court you know that there was an administrative process provided and the district court reached the merits and looked carefully at that the machine that's why i am inclined to look at these in actions and treat them is as effect is agency action and review to see whether the agency had a reasonable basis for doing so so for example with respect to removal of the of the equipment they asked the a g m the agency said we're not going to do it and perhaps the agency had a very good reason to do so but why don't we just review it on that basis that that's certainly a rational way to look at it judge you know if there's a rational basis for an agency to make it well we have no duty to do so there's nothing in the law so if we treat one way to deal with the billings claims in my view and i said this your colleague used to treat everything she's complaining about as a p a reviewable and see whether or not the agency was or richard capricious in doing it  well you know and that's essentially what the district court did it you know it looked that's why i said i'm not sure that just record glossed over this stuff i think just court dealt with it i think it dealt with it by saying let's not deal with technicalities about whether or not there's an e process they had a good reason for doing all of this stuff i think that's right you know not only were the claims available they were brought in they were viewed in great detail by the district court now i don't know if we need to go there as well but on the on the bench claims i also believe the district court got it right on that you know it's really not ok to name ten individual federal employees in a complaint and yet not even specify what they specifically did that was in violation of constitutional rights defendants western radio only alleged kline cannot and heizer allen that they were involved in processing a ministry of appeals so in other words it really just doing their job so there's really no notice provided of how that would be a constitutional violation beyond that the district court didn't reach it but there's also qualified immunity concerns you know if anything the forest service officials here were on notice from this court's prior ruling in two thousand and nine or the two thousand and fourteen ruling on devon's claims that administering these permits and leases on these sites is something that's reviewable by a court under the a p a that doesn't give rise to bivins remedies when these officials are doing their jobs to administer these hundred seventy nine dollars fifty on these trespass claims approximate approx twenty nine and change yes ok and as i understand it this was the that the twenty nine thousand some odd dollars is for the total amount of time they would have had to lease rather than if you will the amount of time they left the propert in other words we've got the told police for a certain period of time but if it's an unjust enrichment claim which is what i was thinking about it doesn't seem to me that the form that the forest service suffered the total amount of money they would have had to pay for the lease but only the amount if you will of time by under which the property would have remained extra on the lease so i'm not thinking it ought to be the total amount of the lease mild but maybe just a portion of that amount well a few points in that your honor first you know the issue that sort of dispute about how the forest service made the calculations you now was before the district court and as a district court noted in its ruling on those for a bit of counter claims western radio didn't dispute the calculations it didn't dispute the sum and nor has it done so on appeal so those types of questions were you know western radio could have raised those disputes about the methodology about the dollar amount reached but didn't and they're not really now beyond that my basic working understanding your honor is that what the forest service did in kathleen that number in those calculations or in you know this court's record was it looked at the occupants the uses that were on the western radio permits and leases for those three sites you know and it carried them forward you know as you know and to the district court's judgment because after all western radio was still there was still running its business without authorization and because those leases their permits had ended you know wasn't paying the fees it had in the past so that the four service credited what had been paid you know and then western radio stayed there i understood what they  paid for the lease that they had but because they held over right they didn't get any more money but they held over and use that ground to how their equipment or whatever they had on there period of leith and the amount they would have had to pay for the you know i don't think that's right your honor you know i believe that the forest service did was look at you know running total up into the yeah it was year by year you know so it's up to that i missed that because i was trying to look through your gargle age yes so this wasn't saying hey we're paying it forward ten years or fifteen years this was looking year by year and carrying forward the continuing  you know western radio during these your best argument is the one you just gave which is that's a pretty good argument ok you're on is you have other questions about the counter on circumstantial evidence at the motion to dismiss face that's you know that's all we have taken together you know it could have tried to allege failure to act under the a p a to stop the ongoing investigation but as here and there was no mandate for there's no at the t is the defense counsel's term no mandate on the government to act in a certain way and therefore the a