just a message on your screen sometimes when the bandwidth that is automatically assume message you should be ok oh thank you very much i'm sorry every what i think and we can still hear you and see you all right good morning the morning your honor may i please the court christiane waiting appearing on behalf of the defendants pelleas rebecca cameron voc and michael hips your honour's these defendants are being sued in their official capacity and they are therefore protected by the th amendment sovereign immunity doing that's a great question and he obviously has no ability to do anything with respect to the claims that they're calling it for action against bare he was a former commissioner at the time and i've been in it in an official capacity suit underwrites party young if there's a change in the office holder the previous office holder is dropped from the case and the new office holder is substituted in who was the new p s e commissioner who were the new p s u commissioner is commissioner here they have not made a claim to substitute commissioner he and the nature of these claims also make that problematic for the plaintiffs their claim is with respect to bias that supposedly was held by commissioner hips and it is inappropriate to try to find that bias to a new commissioner but there are the case and the new commissioner is substituted and we do that automatically frankly in other similar suits if there's a change in the office holder but you're exactly right but what are they trying to enjoin what would they be enjoining commissioner cheaper or commissioner voc or commissioner no act from doing going forward they haven't asked for any perspective relief they aren't asking them to do anything to stop violating federal law in any way what they are asking  to void or vacate the prior decision of the commission that's not ex parte on ex parte young the purpose of x party young is a premise or a fiction a virginia office case as it well is to allow a claims her to proceed where it's not really an action against the commission itself challenging a prior order but it's asking a a particular official to stop doing something that violates federal law virginia office says it rests on a premise less delicately called the fiction that when a federal court commands a state official to do nothing more than refrain from vetter violating federal law he is not the state for sovereign immunity purposes that doctrine is limited to that precise situation in does not apply when the state is the real substantial party in interest here what they're asking for is they don't like the prior decision that the agency made and they want to be voided or vacated they're not asking for these commissioners to stop enforcing any particular provision in the permit that they say violates federal law which was the case in verizon or m c i or the barnstable case they haven't pointed to any way in which the order requires parties to do something that will violate federal law such that the federal courts have to step in to protect federal supremacy that's not the case here what they're claiming is that they had an issue with the process that occurred in a prior action that happened already that is completed and that's not  so this is clearly an attack on the prior agency decision and that's why these three factors are in place for the ex parte young test they require and a violation of federal law st of all they require that that violation be ongoing and they require choir that they be asking for prospective relief they can actually do something to remedy that problem they can't meet any of those st of all they have been violated they haven't alleged that there's any been any federal law that's been violated as i just said there isn't anything in the order or the permit they're claiming violates federal law and what they are claiming is that their property has been taken well the commission isn't taking any property that would be the transmission company somewhere down the line and they may never have to go there if they negotiate with the parties to come to some sort of agreement on compensation they might not ever have a taking they might not ever take any parts of the particular property of these plaintiffs they also claim the private takings claim was dismissed or the district court's order was frankly a little unclear as to what they did with the th amendment takings claim it seems like you sort of conflated that with the due process claim but all of the harm that they're talking about throughout the complaint all relates this property interest if they don't and right well i mean it's not clear to me whether count two was entirely dismissed or not or whether it still has some he was clear that he dismissed count three on the private taking it was unclear as to whether there is a th amendment taking claim still there but either way we think that they don't have anything because they aren't alleging a taking all that's been done is that the commission has made a legislative determination that the project can be built right we don't have regular cl no and if we did it would have to be substantially all of the property interest would have had to be taken they haven't alleged that they haven't that's not in their complaint what they've complained is that there was a due process violation that resulted in the commission giving the transmission companies permission to use eminent domain later on and there is no authority saying that giving a party permission to use eminent domain later on is a taking in fact the danforth case and the delaware river keepers case and at the charles aren't case all say that a legislative determination is not a taking so we haven't done anything with respect to their press their property interests and that's the only thing that they say is how they've been injured they haven't been injured in any way that is a continuing harm going forward their claims of bias are also way below the standard of what could be actionable and in order to get under expert and you have to have violated a federal law in the st place and all they've said is that commissioner docket that's correct but there's no ellen thank you sixty percent it's quite a percentage there was a relationship she recused herself from all of the actions in which she was substantially and personally involved in any of her prior work and there's no allegation that the entities that she did work for actually did support this project we don't know that there's and with respect to commissioner hips all they have allege is that he went to some meetings with myself which is where he learned about general issues in the utility industry and if we had a standard that you couldn't work with the regional transmission organization in your role as a commissioner to keep abreast of the issues in the industry that would be extremely problematic and we'd have this challenge in every single case before the commission or now in this case is coming to us on a motion to dismiss right that's correct so we have to assume the truth of the plaintiff immunity they have pled that ex parte young is an exception to sovereign immunity and one of the elements of that exception is that there has been a violation of federal law that is continuing and the ashcraft well case explains that in that circumstance where the exception of the immunity question includes a question of whether an element has been pled then you can consider in fact you must necessarily consider the validity of those claims as you are or where they've been properly alleged you don't have to go to the ultimate merits but you have to see if they have an adequate allegation of a violation of federal law and they don't have that here you're right we do have to take actually well pleading facts in their favor but theirs are purely speculative they're saying that she might have been there might be an appearance of bias due to her relationship with these other entities and with respect to commissioner hips they haven't found any particular communications that were on to the carnal hickory creek line they say that they're on the subject matter of course there were they talk about transmission in general at my so meetings that cardinal hickory creek line was discussed at myself ten years ago in the early twenty ten's and twenty's eleven that's when they had a role in the cardinal hickory creek transmission line and i think it's important to as well the commissioner hips does not have fiduciary duties toward my so when he's in those meetings he's there as required by federal law to bring in the state's interests and to be there and to you know keep the interests of his constituents in mind not to advocate for any particular result that doesn't have the state's interest in mind but you are correct that there accusations are not enough but the plane is invalid much more than bare allegation position representing a sixty percent owner of one of the parties on a friday and join the commission presiding over the case on a monday it's a little unsu just to your point about whether there's that the sufficiency of those allegations it's important to remember that they've ignored the presumption of impartiality you have to start from the position these people are able to get over those presumptions of impartiality and they go through a confirmation process all this information was known there recusal statements all kinds of other due process things but more importantly your point ex parte young does not apply they are not claiming that there is continuing violation of law there is not a continuing bias what are they pointing to that these defendants are continuing to do that the federal courts have to stop to step in to stop to protect federal supremacy which they're claiming about a due process violation they can pursue that in the state court process and there are all kinds of procedural safeguards hear i have trouble understanding what the ongoing violation of federal law is the violation was the failure to recuse themselves that occurred in the past or was it the bias that occurred in that process that again occurred in the past that was a prior violation not an ongoing violation in the cases in which ex parte young has been applied they have been circumstances under which the officials are going to continue in forcing a regulation that was seen to violate federal law i it was a contract that those commissions would be enforcing that required the parties to follow the terms of that contract which would require them to violate federal law there is a preemption issue here they're complaining about the process a prior act and what they want is a void or vacate so they don't have the ongoing violation and they don't have the prospective relief they want void or vacate they say enforcement but that's just window dressing what enforcement do they want to stop these defendants from doing what actions are these defense going to do these defendants are done with the eminent domain question they said that this project can be built and then from there on any of you know to me it happens in chapter thirty two with respect to the transmission companies the commission made its determination based on and ninety six four hundred and ninety one to determine whether this project was necessary and was complied with the public interest that's a legislative determination they have to apply the statutory criteria but they have not they're not continuing to do anything that violates federal law  he still has regular through the whole groups during the course of the projects it does and if you look carefully at the final decision it lays out terms and conditions that the permit holders must follow if you were to enjoin the commission from enforcing the permit that would just take those protections away the only enforcement authority going forward is to say applicants you need to make sure that you're following these best management practices you need to make sure that you're protecting the environment you need to make sure that you're not making a minor rod adjustment that's going to affect other land owners that has to be the ones who've already gotten notice an opportunity to be heard those are all protective of these plaintiffs they don't cause any injury to them that is ongoing commissioner between the constitutionally inappropriate decision and then claim the constitutional violation of some are wiped out that just simply can't be right well it is right if this is a the arm of the state the commission that's correct and so i think you know it doesn't matter whose name you know you name the the commission or the office holder but this is simply you know certain brings to the surface the problem with this claim as an ex parte young claim because your focus is on the conflicted commissioners who presided over the retrospective relief and the fact that the the current members of the commission the commission itself has a limited ongoing in forstmann authority against the permit holders to the extent that the permit holders violate the terms of the permit doesn't make this an ongoing violation against your clients the firearm with your clients was complete when the permit was issued assuming that there was a due process violation here your honor we do respect we do we think the district court got this correctly and here is why we differ because the commission has explicitly rechange jurisdiction the commission has i'm going in for smith already including changes which they've already exercise the commission has supervisory review many aspects of compliance the commission can grant or deny proof or project doesn't make what the commission is currently doing a due process violation against your client ongoing nature of the current commission is not conflicted you're in you're out or  the commission has i'm going to force already of course we couldn't to challenge that if the commission's decision before it was d written in spirit really what you're doing is challenging a commission decision that in this case was made in decision but for the ticket the thing got from the commission the transmission companies could not go for it was an adjudicatory decision by the commission not legislative decision and the commission admits that age have to have received approval d from the commission that submission decision was constitutionally flawed and i'll get to just a couple d of the facts here because that flawed decision is the but for followed and some of the factual context here just because it's become a little bit sanitized says judge wrote in it was referring to the commissions that you took a tour in just six was contaminated by commissioner experts in meetings hundreds of phone calls and regulatory d socializing the transmission company executives and it gets worse from there as judge rotary pointed out he joined the my so transmission groups advisory committee while my so was an active litigating party before the commission if you was regularly meeting but the presence of my son is four directors myself and the three transmission companies entered into a common interest agreement regulatory or her or permanent commission and in several of them it was you know public service commissions like the one that we have an issue here but it the telecommunications context and the workers in question were required the plaintiffs to have to perform services and pay money duties that they were claiming were preempted or that were contradicted by federal law so there was an ongoing federal law while asian that was real and and and concrete and in fact ongoing in those cases because they the carriers had to had the money and to and to engage in this interconnection arrangement here is very different your claim is is a claim for for a due process violation that occurred because allegedly conflicted p s c commissioners issued a permit that's all in the was completed in september of two thousand and nineteen when the permit was issued there is no ongoing violation of the due process clause by virtue of conflict of decision makers making a decision that impacts your client except i guess perhaps with respect to commissioner bulk to the extent that that she's still on the commission and maybe have the same sort of conflict that you're raising here but with respect to the commission itself it's not doing you know the order is have been issued part of what you raised in terms of the party where that is what the supreme court said and now let me turn to the ongoing violation there is a order issued by the commission that we believe and what we did fax content is unconstitutional it's the but for aspect of that order but for that order the commission and its continued solidity the transmission companies would not be allowed to go forward in condemning transmission companies could not go forward period the commission explicitly retain jurisdiction and we all know what it means when a commission or when a court retains jurisdiction that's only commission sor commission says it has continued jurisdiction to assess route changes and it's already done that was the commission that we describe in the page thirteen and fourteen are briefing for tigris and i'm not going to go over each of them he says but the commission is still in the game the key point here is the but for the continued the liberty we think invalidity but but for the continued operation of the commission's order the seizing of all and the private eminent domain could not be done here so the relief we are seeking is prospective we are seeking to enjoin the enforcement of or did allows the transmission companies to take my client's land and impair and harm my clients and others interests and that's what the district court we believe appropriately found that there's a nexus there's an inextricable connection between the order which is very much like some of the contracts order of the d commission the transmission companies could not in fact continue to exercise eminent domain that's their ticket that's the ticket that they have to  us interests will be protected and not harmed and i would suggest with your respect chief judge sykes that it would be just a significant departure and out of line with the four utility cases  has retained jurisdiction and if the order that is constitutionally plot is found to be employed and isn't forced prohibited from having an effect going forward then the transmission compan simply as a matter of law do not have the authorization to move forward with the transmission line an exercise privacy and we've addressed it further in our priests i realize my clock is running out and trying to respond to your honor's questions thanks for the reasons we've described this morning and in our griefs this court should affirm that it's your court's ruling on the motion to dismiss with regard to some unity and to the extent that well not that they have alleged they have not alleged anything that would have any harm to the plaintiffs what they have alleged is that the commission entered an order which gives permission to the transmission companies to take their land and that does not re perspective really whatever the commission does by way of a final order never know the m c i case is the horizon cases those were cases in which there was a requirement that the parties to those agreements would have to charge the rates that they put into place and there could be enforcement going forward they would be required to charge those and so there could be a prospective action but that's not the case here there's nothing in this order that they're at alleging is illegal i do not abide by the terms of permit and they begin building ok where they were given permission and the commissioners once again say we're not going to think but it's a hypothetical right this is a motion to dismiss though so we're looking at what they actually alleged and they didn't allege that there's ongoing bias that's being used to enforce the permit but you understand her out well what if the commissioner does something so outrageous that you know all of our eyes right and i want to is that decision thank you days later she leaves the commission are you saying that that's it i'm saying that there's no federal cause of action necessarily so the courts need to step in when there isn't a remedy for a do process violation here if they have an issue where they think that there was some bias that occurred in this process they can go through chapter two hundred and twenty seven and make those allegations it's not that they can't make due process claims they just don't have a federal cause of action where the federal courts don't have to stop step in to stop a continuing violation of federal law or where there isn't an adequate process for pursuing those claims in the state process that's not this case this circuit in the bradley case said the one hundred and eighty three due process actions appropriately belong in the federal courts we have filed the federal court federal constitutional issues in the federal court the state issues in the state court and that's what the operative law is here but as a practical matter to answer judge rotenberg the st part of your question there is continuing enforcement by the commission the commission has retained jurisdiction to do that that's explicitly in their order and with due respect to judge sykes chief judge sykes earlier question to me that retention of jurisdiction in the actions that the commission  is taking in allows the transmission companies to take the but four point that i made once the squarely in the barn stable ameritech versus macand m respectfully just to address the next citation i think when you look at that case is the case judge as you should understand that that was where there was a taking we're not talking about a taking here in the next case there was a cemetery that the ordinance said starting now people can use your cemetery on an ongoing basis we don't have a taking and so the neck what nick stands for doesn't have application here and i would just repeat again that there is no case law establishing a but for test for ex parte done you need