please the court my name is frank patrick and with me at counsel table and who will provide to be participating in argument is richard gaines we would like to reserve five minutes for a bubble i will argue for seven and mr games will this case is really a continuation of the saugus of this plaintiff and these appellants to obtain the refunds or as mr reichman points out in his reply or response are not over charges well for the commoners such as my clients the whole issue is really kind of a moot point they haven't gotten the money back that they were told they were going to get back by whomever c c orders parted they were told to get back by see order to be paid back which were not paid back their the fun's that is the difference between a rate that was not compliant with law and i'm not asking what you clearly to be the payment that's due but i heard you say that the p u c has ordered payment refunds that have not been paid back is that entered in two thousand and those are the fees that you're trying to refund you're trying to get they were ordered in two thousand that's correct but you can't calculate those fees those refunds until the final order on you you weren't paid those refunds in two thousand no you didn't know how much they would be could be determined let me ask you a question sir suppose i have an accident point of and i have a broken leg and i can't get back to work right away do i have to wait until my leg is healed to get back to work to know that i've been injured in that particular absolutely does no i don't because i file for medical expenses to be proven right that's correct which was to be proven i don't know what the medical expenses are going to be i don't know what the wage laws are going to be that's what i know i've been injured that's correct you knew that you hadn't gotten paid back in two thousand but we didn't know because the liability for that obligation has to first be established by the setting of a final rate that's been the administrative law in this country in the state at your attention you don't have a lot of time i'm sorry i thought was that he was asking mr no not i but later ok talking about when he gets up there ok let me let me focus your attention on it on a couple of matters that are that of concern to me as i understand the case has a very long history and i try to make sense out of it we you know we we think we have historical part of this ok but as i understand it so were you were at the point where you  filed this current case raising state law claims and the issue is the problem here is that on the state law claims now the district court basically determines that they were untimely i believe that's correct for pretty much yes although there are some other questions about a stop all our collateral estoppel and whether you state a claim with some of these cliffs but by and large they were untimely so that gets us the whole idea of a cruel of each cause of action and tolling yes correct yes all right so each one of these statutes each one of these cars state causes of action has a different accrual da just about i mean i saw you get some of them have the same time period and under this oregon statute it's where the where the when you read it was judge bear was suggesting was when you reasonably should have known that you had a claim not the full extent of the claim is that correct i understand his question yes there's a response to that though ok so would you to and i don't want to spend a whole lot of time on this but what's your best argument stablish the difference between how much is owed when you change the rate that they were being charged and actually paying every month until two thousand and three when qwest voluntarily reduce the rate but intel you have a judicial determination of what the rate is fair and just by the p u c no one can go to court and say pay us that money in fact that's part of the stipulation if you look at it a word specifically says i think it's page nine in ten words specifically says the parties agree the p u c at qwest agree that intel there's a final rate nobody can make a claim is that the fundamental problem from your perspective with the district court judges analysis and she went through each one very carefully sure but she got it wrong because she wanted to start an accrual date that was six years before the final rate was established in can't have an  accrual in administrative law of a final rate or eight and action to obtain funds for a refund until you actually have the standard meaning the final rate established in other words when the in it's a ford ordered quest to file a rate case everybody knew that the rates were going to fall at least we all believe that i wasn't here mr r whatever you have a claim on the or there was no federal claim or whatever out of it whatever she did and she dismissed she said i'm not going to assert supplemental git jurisdiction over all those other state law claims correct correct correct in the meantime and you don't file in the plaintiff don't go over to state court and file another lawsuit that's actually what this lawsuit does right but not at the time she dismissed you didn't run right over to state court and filed a lawsuit no losses and eventually we get to this less correct correct and you ledge all these claims so let's just assume for a minute if you get if you're completely correct on the a quarrel do you need with judge brown's or cruel determinations do you need tolling i don't believe so with respect except with respect to one of the cases one of the one of the claims is based on the organ statute for unfair labor practices and that's under that would be under a six year statute so you don't you don't need any tolling under twenty eight u s c section thirteen sixty seven we believe that twenty eight u s c thirteen sixty seven ok they were appealed and i think that's what the issue that mr brightman has raised questions raised is that somehow or another of those came to get appealed but we believe that in fact it is told you're entitled to the  because it holds it tolls things it tolls the running of the of the matter until the mandate has been issued and i didn't say that literally you have a case that says that it says the period of limitations for any claim asserted under subsection a which is the pendant or supplemental state law claims and for any other claim in the same action that is voluntarily dismissed or after the dismissal of the claim under subsection a where the judge says i'm not asserting supplemental jurisdiction shall be told while the claim is pending correct so you're saying that pending in federal court no matter what as long as the mandate from the one thirteen it's appeal your view that should be read to mean until the mandate issues well if it's on appeal is the case still pending that's the question i think you're asking well are the claims still pending in the state l ok the state law claims in other words the proposal would be or you're supposed to bifurcate your case take your cause of action do stay call like the law claims in some different proceeding and go forward with the federal claims that you you know look i get rid of all these federal claims they're gone this case should really what's left are nothing but state law claims they really belong across the street who so by  the court's decision not to assert supplemental jurisdiction and if this court reverses the federal client versus than just a court's ruling on the federal issue we ask you to reenter you know we ask you to bring back those state law claims the way i read the notice of appeal in the way the requirements for that as long as you appeal all the orders of the of the district court which we did that's in the notice of appeal then those matters are all on appeal and they're that means they're still pending that's the way i understood it but you did not argue the dismissal the state more claims was incorrect in your opening brief no we didn't but that matter was already resolved by the ninth circuit your honor the ninth circuit took mr reich means motion on that and and basically denied it and never read never revisited again so we believe that that issue was resolved in fact us we that's one of our four points or the ninth circuit found state law claims were repealed and so twenty eight u s c does thirteen sixty seven does apply meaning they were being held and told while the appeal was in process paid and that's what this litigation is all about really really sick it's all about people who paid money that were not later determined to have owed that money when the rate fell ok and that's the money that we're looking for that you're he thinks i think he's getting very anxious over here i can see that because of the dismissal of the state law claims from your original case because that then required us to wait until the federal appeal with spanish we cite the beat case the district court was mistakenly learned to believe that a case was overturned by two cases that are clearly distinguishable that beecham case which said we hear exactly what happened here federal claim dismissed with prejudice state law came dismissed without prejudice for lack of jurisdiction excepted beecham the plame of their did exactly what the district court said you had to do file them in state court file them in state court subsequently appeal to federal dismissal state quick ted the statute is pending in the federal court on appeal therefore you of the case here and i had to refile in state court and if you don't reply tolling instead of starting the big eight november two thousand and nine we end up with a date in twenty thirteen and a date under state law which we could not have brought sooner so correct me if i'm wrong but my understanding of the tolling provision under oregon law as it relates to the what the district court get that action is pending in the federal court and you cannot we commence an action in the state court because you have another action pending so what happened in  is exactly what the district court said you're supposed to do and under them it's clear that's wrong that's exactly would be them says it's wrong man the reason you need the to is because if you start back in november of two thousand and nine which is when it should have been deemed to be file obviously the claims that accrue in two thousand and eight as we maintain scuse me and i want to address for a moment your honors first hypothetical i think it's the wrong hypothetical assume that the clue arises unjust and under reasonable under oregon law you have no claim on a till two things occurred one you must bring a case before the p u c is a case still damages you either don't really see the found to be unreasonable or it's not if it's not if it's a reasonable weren't you have no damages if it's not reasonable you do they could not be not fine you have no damage claim so good to respect to that that means throughout that period the rates were not fin oregon statutes that require that same process seven fifty seven dot seven twenty two and seven six sixty five require that ok so as i good morning or honors me please the court lawrence reichman for defending qwest corp we haven't talked about remand so i'll wait and see if the court has any questions about that but let me address judge bay has questions about the refund order and fundamental problem here is that plaintiffs are completely mischaracterizing the nature of the refund that qwest was required to make by the p c in two plaintiffs state that qwest was ordered to refund the difference between the rates it charged during the rate case and the final rate set by the p u c for every single service that's hundreds if not thousands of services that is entirely incorrect the p u c ordered quest to make a refund in a lump sum at the conclusion of the first phase of the rate case which established quests and revenue requirement it did not require any additional refunds at the conclusion of the second case called rate design when rates were specifically set the refund that the p c ordered quest to make was in the total amount of two hundred seventy two million dollars and that was divided among customers in a very rough fashion to achieve sort of rough justice and in fact many customers got refunds for services that did for which the rates did not change during the rape case and that was the way of providing compensation to those customers for what it considered to be bad service so for example the rate for residential service was twelve dollars and eighty cents per month before the rate case started the rate ten day is twelve dollars and eighty cents per month those customers for residential services received a refund of over one hundred dollars as compensation that was how the refund was ordered so their argument that the p u c ordered quest in two thousand to make a refund based on the difference between the rates charged during the rate case and the rates established at the end the rate case is a complete figment of their imagination they're making that up and that's what they base their cruel argument on and it's just completely wrong and your honour's can be certain if qwest had not made the refunds it was required to make by the pc's order we would have been hauled in front of the p u c to answer for that the commission does not abide violations of its orders and protects its customers so your position is that qwest was ordered to refund two hundred seventy two correct and they did they filed a claim in may of two thousand and one basically saying qwest did not comply with its obligations under federal law to file new service compliance rates and that they're entitled to refunds under federal order under f c c order they that was the very first case they filed and that was the refund case as the so called refund case closed what happened in that case that case was filed that the p u c it was stated for a court this is not in the breeze because this happened just this year and the oregon supreme court has denied review so the plaintiffs did sue in two thousand and one at the p u c correct representing the interests of the state of oregon that was actually i think what we're calling in p c c three three what was in p c c one in p c c one is the case that we were talking about here where they filed eighteen claims five claims clearly based on federal law thirteen claims based on state law that's the case the judge brown dismissed the federal claims on statute of limitations declined to exercise supplemental jurisdiction on that was that case and then we came comes up here correct we have further correct in the meantime they don't file a lawsuit in state court not replying jurisdiction correct right they did not file a lawsuit in state court immediately in fact they filed another case in federal court they filed a third case in federal court which is the i'm sorry the fall the third case that we removed to federal court that was the one filed purportedly on behalf of the state of oregon to enforce these orders and then they filed there's a fourth case this case yeah right so when do claim that the court considered in n p c c one in the first federal lawsuit it's the same essential type of claim that they were on notice of when they filed the refund case in two thousand and one it's all based on their two thousand and one they said they had powerful evidence that qwest had not complied with with the requirements they could certainly have filed all of these claims at that time they chose to file one clearly what would be required to file a claim first  see i don't think so i think they could have gone to court in fact when there was a change of counsel from prior counsel to mr patrick he asserted that the p c actually didn't have jurisdiction over the claims that his client had filed at the p u c he claims that those claims should have been filed either in court or at the federal communications commission so they were not required to file the p u c in fact he kind of read resisted p u c jurisdiction over the claims that were filed on behalf of his client kicking and screaming because that's when they become aware of the cost dad and whatnot that's right ten and eleven are really an entirely different type of claim they have nothing to do with refunds they have nothing to do with rates paid these pay phone owners are claiming that they were denied certain services that were provided to other payphone owners those claims accrued in two thousand and four that's correct ok actually the same one i just talked about i may have misspoken claim twelve is the same one where they said they were denied access to advance services and that would have happened in two thousand  interference with business correct yeah i guess i'm using this anonymously but again they claim they were denied access to certain services that other pay phone owners were offered clearly they would have been on notice in two thousand and four because they should have that they would have asked for those services and been denied them and that's what judge brown found so if those if claims ten and eleven cru of those claims have two year limitations periods i believe so those would have expired before they filed the first lawsuit well i said well if they if they get the benefit of to under the federal tolling statute wouldn't that say those claims no why not because in p c c one was filed in two thousand and nine so if their claims accrued in two thousand and four they would i thought that you know i'm checking my little cheat here that the statute of limitations for a claim ten and claim eleven were both was six years unfortunately i don't have that my cheat sheet i apologize  so i can't respond to that and there were other reasons why those claims are not well stated we think that's so that's a whole nother issue but i'm just talking about limitations breath and i think there was one of i think the court did consider tolling for one of those claims i think it might have been claimed twelve and it did do the analysis and concluded that even if they got the benefit of tolling those expired remember that the the court decided that that the  tolling period terminated as soon as the district court entered its order or judgment not on peale so that was in two thousand and ten and then they didn't file this case till two thousand and thirteen why shouldn't they get the benefit of  tolling the federal tolling statute in the instance the federal tolling statute also talks about when the claim is dismissed i believe and that should apply to that should apply to when the when the order of dismissal is entered by the district court just as the limitations period for any claim a syringe that subsection a and for any other claim in the same that is voluntarily dismissed or after the dismissal of the claim under subsection as when the district court declines to assert supplemental jurisdiction correct shall be told while the claim is  so i would i have two responses first i would say pending refers to pending prior to dismissal at the district court secondly if that were read to include the time of when those claims they were not on appeal plaintiffs agreed that though that the court should not exercise supplemental jurisdiction plaintiff did not raise and what any issue whatsoever about that so it did not appeal the dismissal of those claims well there you know lots of times and when you have a claim multiple claims in district court when you have state law claims that are directly related to the federal claims or intricately connected and lots of times it just a court will say i don't have federal jurisdiction or these federal claims fail for some reason and just says well you know what a rigid is we got rid of this federal claim i'm not going to fuss with the state claims i'm just going to and then goes up on appeal they're really they're really connected i mean the whole purpose of thirteen sixty seven if you would some of the history of it is you know it's intended to protect the federal courts should remain open to parties in this situation of both federal claims and state law claims and it's meant to give them one form where they can pursue the both their state claims and their federal claim your i first need to apologize that i  don't have the law on how that been interpreted whether that's considered to apply during on appeal i wish i did but i will also say i appreciate your comment about claims being intricately intricately connected these claims that we're talking about had nothing to do with the other refund claims these were claims for interference with their business they really had nothing to do with the rates the refund well right out of the failure to give them their refunds no relates refunds no in fact no nothing whatsoever to do with the claim to the refunds the refund claim is based on rates for certain services here they're saying that they were denied other services enhanced advance services that other got so they couldn't compete with them tiredly different types of claims and in fact one of the statutes that they rely on require it gives exclusive jurisdiction to the p c s so again there are other bases for dismissal of those claims besides stachel merely saying it's interesting to look in our case law and there are instances where we get in the situation just like this where the where the ninth circuit reverses we'll send it back to the district court and that could happen we do it could happen i know i've done it yeah that could happen here well i hope the court is not well that's not this case the court this court already affirmed that other on the possibility of amendment of some of these claims should we re men to allow amendment well i guess what i would say about that is this is the fifth case that plaintiffs abroad this is the fifth case that has been dismissed i honestly think they've been given they've had to take it and i don't think they've been given they've taken many opportunities to refine their claims and they've certainly morphed and changed over time but i  can't imagine that there's any anything to be served by giving them another chance to amend the comp claims these claims are old and they've been rejected soundly it seems to be like if any of these claims survive they're just state law claims that will eventually end up in state court well i would disagree with that i think that some of these claims pacifically the unjust enrichment claim which the district court analyzed have or have necessary federal issues well i guess it would depend w in the allegation of claim number two is that is a violation of the f c c new services test rates precisely the basis of that claim is that qwest was unjustly enriched in oregon law that is that means that you acquired property by wrongful act the only wrongful act alleged here is failing to comply with federal law and the f c c said that's unnecessary only if that claim accrued in two thousand and one would make any difference if they got to you have a number of misapprehensions this is governed by state law and these claims are exclusively state law when when we talk about the  b adoption of the original settlement agreement settlement order that was on speedy law grounds totally the adoption of the t c a and when we talk about the refunds initially granted they were granted on the basis of ques proposed with and the only reason we have the be confusion we do now is because the best settlement he wanted those refunds paid before there was a final rate determined in the absence of that what would have occurred was we would have appealed the order said an old one eight ten no refund would have been paid we would have gone through the entire process the final rates would have been set it two thousand and seven  those settlement owners ques was ordered to pay two hundred seventy seven million dollars of refunds and those refunds would have been allocated among the rate payers based on the c says we're going to pay the refund before the final rates and in order almost six five one five they go back and interpret those borders and say added we appreciate your arguments really do we spend this is a complex case and consumed a lot of time at least for me thank you very much counsel appreciate your arguments today the matter submitted and that entire session for today and for the week and thank you all very much