court actually powers for occidental chemical corporation this case is about what congress decided in the public utilities regulatory policy act otherwise known as that statute which is designed to protect certain alternative sources of energy known as qualifying facilities has two provisions that are relevant to this appeal first it vests exclusive jurisdiction in the federal district courts to hear claims that a state has failed to faithfully implement the requirements of purpose and second it specifically designates the role that the federal energy regulatory commission otherwise known as first will have in those proceedings it can either upon request bring litigation itself or it can have the intervention as a matter of only two places you can go at this court's cases of addressed it there's either as applied challenges which means you go to a state court or there's implementation challenges which means that you go to federal district court of this is an implementation challenge in federal district court in this case  louisiana has adopted new rules that we'll edge systematically strip qualifying facilities of their rights under purple we asked her to bring the lawsuit it said that it would not but recognized in doing that the that separate proceeding called an integration action can we call it that we could do it on any was it called integration action well your honor there's a there's a plan that has been put together that would allow entergy to integrate into the m which is the it's the you know system operator for the region right so we're going to just refer to it as the integration action what's the status of that integration action now it's on ice or on or in the sense that we filed th action in january two thousand and thirteen in march two thousand and fourteen start asked for some supplemental filing and since then nothing's happened well hence have the parties and again i'm asking what's on the record as occidental chemical leaflets happening here why aren't you moving on this with your own i understand that we've we've briefed everything before for these proceedings traditionally take a long time so it's not like we've gone in there and ask for emergency relief or for  honor there's two different things that are going on it's important and we emphasize that they're separate but this is correct that when we asked for to implement because there's of litigation against louisiana the l s p see the louisiana public service commission when we  to bring litigation against them burke decided not to and recognized expressly in this order that that meant that we would be able to go forward we need to be very careful about keeping these separate for this recording i really don't know what i'm asking about is what's going on in the integration action not the current action in federal court the purpose action but in the integration action you ask for fast track processing you tell me the briefing was completed what over a year ago  any additional pleadings asking them to to move forward motion you haven't they are now let's say fark started today what what what's next is there going to be a hearing in the integration action is there going to be evidence presented is there going to be live testimony what's going to take place with iran is typically the first to issue an order that would explain its views on the submissions before to make a finding as to whether or not there's been a violation of federal power many many years there's no way that we can force for it to take action often it's we're talking about five ten ten years for them to take action and the reason one of the reasons why i think may not take action is because congress has separated out these two proceedings and realizes that there is a district court action that's proceeding and our point about keeping the two separate your honor is that between the two of them the one that takes precedence is the purpose of action in the district court because the district court has to decide that issue and so one of our big complaints with what the the district court in this case did is that it is shifted the burden of inertia in a way that prompts for it to take more time and not express its views as opposed to if you follow congress's commands and allow the litigation to go forward it will provide an incentive for further to either intervene in the action as it's entitled to do express its views that way or if it wants to decide the issues in the the separate integration compl intervene when they have already intervene your honor that is that is our point that if one it to express its views it's had opportunities to do that certainly it hasn't foreclosed its ability to come back to the district court and ask to be able to participate but the essence of this case is that the district court invoked the primary jurisdiction doctrine on the theory that one of the first views the congress has specifically explain how those you shall be provided to the court which is either through bringing its own action or through intervening and the problem as we as we explain in our brief is that by staying in the action definitely the court is essentially violated this court's precedents in the mercury motor disorder what about what i opportunity in the next six months to discard the first action and if they don't do that then you have a right to come back and we'll try our case so you're on let me answer that in two ways just because i don't want  a question which i think has two parts to it one is that we certainly agree that the district court has usual discretion to manage its docket and so to some extent the district court can exercise that discretion but your honor if i took your question for all that it's worth i would still have the same problem which is that the one thing that the district court can't do is invoke primary jurisdiction as the basis for that as opposed to exercising just control over its docket the idea of primary jurisdiction would be to suggest that fork has a role to play here that is different from the role that congress assigned and so even under your hypothetical your honor we would still a problem with that if the basis for that was that the district court said well i i'm going to created a separate stack of the non statutory way for  case i i do know if you take a look at say like the heinz case a little case that we talk about it makes exactly that distinction which is as long as the district court is exercising its control over the docket then that's appropriate but if it's exercising a primary jurisdiction to state the proceedings particularly if they're indefinitely i mean i do think there's a big difference between the hypothetical and our situation because there is no stopping point here so although i think we would win under the idea that if the district court in both primary jurisdiction said well maybe for two years we would still have a case i think it is particularly telling here that we've been out for an indefinite period nobody knows when i'm glad to hear you that because i'm hear you say that because i thought you were saying that the di invokes primary jurisdiction it cannot impose some sort of deadline on the regulatory agency to take action your honor what are what i would say just to be clear is that under the merck remoter decision we think t they were involved with in that case preclude the study and purport under their i mean if that's the way out your honor with respect i think that is true that's a factual distinction between the two but i think if you read mark remoter it's broader than that and there's the key language in its opinion where it says look when you think about primary jurisdiction the reason you do that is to get the views of the agency and there's but it doesn't apply when one exclusive jurisdiction has been given to the district court if you think about that because in those cases the primary jurisdiction belongs to the court if it if anything should be the other way around the first should be deferring to the court not not vice versa and second that the the court also makes the important point that when congress is a side note here admittedly there isn't in the statute a specific reference to the state but it's very very clear what virtual will be congress is very specific about it it doesn't have to mention the word stay in order to make clear its intent the first will participate use that as the basis for staying case the answer that is no our second point to your honor is that if the disc if we're wrong about that in primary jurisdiction can be invoked in these circumstances where congress has assigned the roles of the agency and the courts then the district court has discretion has to apply away and as you can see from our brief our point here is that even if that's true the district court didn't gauge in the hard way and one of the reasons for that is because as long as the evidence in the record is that we don't know when for side and it's an open ended state which everyone agrees that it is at this point then the weighing has to be very questionable as to what benefit of work will provide and here in particular if you take a look for example at the d c circuit decision decision in niagara mohawk you realize that the expression of the views of first don't really count for much because the role that the district court has is not actual finding in the sense of making finds of how the markets works it's taking a look at whether the move rules that have been taken by louisiana comply with the statutory requirements of purpose and the regulatory requirements of the regulations that are on the books as the d c circuit recognizes those are legal judgments that can be made with or without fox news and first news of course can be offered through the mechanism that congress has provided i take your point about the district court give me an indefinite date but that gets me back to my point about about the brown case where if it does i don't see i mean that the district court clearly said that it would be very helpful to me to have her views on that first action have now been waiting three years since the integration complaint was filed almost two years since the start of the process of filing the litigation here i'm not sure at this point with has known all the time and judge tennessee pointed  first order when they said we're not going to file the litigation ourselves we recognize that occidental has the right to do so knows that this litigation is pending so to at this point give them additional time we think would be an appropriate like to save the rest of my time for a a sixty day period your honor that's exactly right the statute is very clear that in order to move things forward first had sixty days to decide whether to file the litigation or not one of the points we make in our brief is that that shows that lacks jurisdiction to review the district court's primary jurisdiction stay which is not a final order and second in the unlikely event that this court does reach the merits it should conclude that the district court did not abuse its discretion in determining further decision in a pending proceeding initiated by occidental which ferg has concluded rages largely the same issues as this proceeding would materially aid the court before it worked in resolving this dispute which has the potential to disrupt an electric power market that serves forty two million people in fifteen states though the crux of the just people between the parties relates to whether or not the money so q f integration plan complies with  at this point in light of code is questionable and this court has repeatedly confirmed that cone only applies where there is a stay in theater favor of state court proceedings and as in kershaw this court held that that federal agency proceeding that was precisely the issue presented in kershaw your honor and again in the same footnote where the supreme court mentions times in cone it simultaneously says that the cone considerations of effectively taking a plaintiff out of his chosen federal form don't apply only apply where the stay is entered into a vote of the state court proceeding so the effectively or out of court exception moving federal agency presented as being the slowest we have and i have to wait ten years only to walk with that affectively putting them out of court because that's not that's not this is course precedent your honor as i told you when president assad used top reality well your honor perhaps the court could evaluate the merits of an open ended stay in terms of whether or not the court appropriately exercised his discretion but that's something that would come  example on a petition for mandamus if the if the proceeding had been outstanding too long occidental remains free to move to have the stay lifted if at some point in the future that the ferg proceeding appears to have been stalled but on the record before the court at the time it entered the stay it was appropriate and reasonable for the court to conclude that it would be aided by a first decision in the underlying case and so the effect of the out of court exception as applied by this court after court has really been limited to some boilerplate language applied in administratively terminated preserve rights litigation which is the much of the case law that occidental relies upon neither just a collateral order exception apply here that is only available where substantial public interests are at stake with respect to the type of order at issue the case presented by accidental the stay here doesn't implicate any of the kinds of concerns that this court has recognized constitutional concerns in the like that provide a basis for collateral or to review and in addition there are three or parmesan accidental has to satisfy to invoke that exception first the stay order would have to conclusively determine a disputed issue that second that issue would need to  be completely separate from the merits of the underlying dispute and third it would have to be effectively unreviewable on appeal from final judgment in order to satisfy for collateral order review occidental would need to satisfy all three of those requirements and in fact it issues and there was an adequate record for the for that before the district court in fact the disputed questions that overlap oh very much to the heart of the matter here these are not ancillary questions that can be addressed on collateral order review they are the heart of the matter and for that reason several other circuits we discussed in our brief have found that primary jurisdiction referrals to agencies are not appropriate for collateral or to review occidental relies on the  is distinguishable on several grounds in that case the federal court review to stay in favor of hundreds of state and municipal proceedings which involved a defense of state action to an antitrust claim late case was expressly limited to the issue presented and it has not been cited in the thirty years since it was issued and it provides no guidance here where the state has been entered in favor of federal court proceedings with respect to the merits of the underlying primary jurisdiction stay the first argument that occidental makes is that the district court could not enter a primary jurisdiction stay consistent with purpose and that's incorrect that argument rests almost entirely on this court's decision in mercury motor which is judge davis you recognize it involves a very different statutory scheme from the purple regime at issue here mercury motor involved the interstate commerce commerce act which granted the agency the ability to stay the federal court proceeding it did not mention authority for the federal district court to enter a primary jurisdiction stay in for that reason this court concluded that the district court did not have that authority the court also noted that the uniques to escape and there are only authorized the district court to enjoin clear and patent violations and so for that reason the concern of uniformity in which is usually a key factor in deciding when a primary jurisdiction referral is appropriate was not at issue to the extent in the mercury murder case that it is it here is here and so for those two reasons that statutory rape regime is really quite different although it is true that purple authorizes firk to initiate an unfortunate proceeding that is not the same to say that that those in force when proceedings are the against the state commission that is not the same as to say that that is the only vehicle for fur to express a view about purpose and in fact accidental clearly believe that first had the ability to rule on purpose questions in the context of its integration complaint otherwise it would never have been invoked jurisdiction to do so and in addition fir clearly thought that it would have another opportunity to pass on these issues because in the same letter in which it declined to initiate enforcement action and found that the proceedings raised substantially the same issues it's said that they should be addressed at the same time meaning in the context of the pending my so integration complaint so given the very technical there was no legal bar to the district court entering the primary jurisdiction stay and given the tick technical complexity of the issues here where ferk is the agency that has the interpret ng has probably did the interpreting reg regulations a factor that weighed in favor of the primary jurisdiction and wagner brown it clearly has technical expertise that could assist the district court in this very complex matter and very important here the risk of conflicting rulings by furka and the district court was substantial and very real as this court recognized in mississippi power and light the case for primary jurisdiction is most compelling where there is a pending agency proceeding and that is the case here and that is also what creates this risk of inconsistent rulings mr darcy well we don't know how long they'll take your honor but one fact is definitely clear which is that my so is in front of her in the first proceeding my so is not a participant party to the district court proceeding below and so occidental has requested an injunction that precludes the l p s c and entergy from following any aspect of the my so integration plan that violates pur court to look at that question again in the first instruct interest again if that might actually have an ott benefit occidental in some respects if it wanted to present the district court with a more fulsome record as to what actually are the disadvantages it claims it's experiencing as a i don't care where they were not what's wrong with us and he did back in telling the court we want a time limit put on this state now let the parties present their positions and then fix about well your honor it's not clear why that would be a thank you no well d'arcy on behalf of the louisiana commission and its commissioners in their official capacity who are also sued in this matter you know might enjoy trying not to overlap with what she is already said but my argument is going to focus myself market is online and put them in a position where their order might be invalidated based on something that they don't control and did not control and that i'd like to i guess begin to sort of answer the question that you just  mr rabbit off you know why wouldn't it be appropriate to send it back it wasn't with a time limit and the one reason i can think of is because it still wouldn't solve the problem of the l p s it's going to have if the fur you know that is utilities in my so are allowed to choose to pay to us or q have puts that pricing prior to the time in my so was based on what the energy companies would have  produced themselves with their own generators a little went out and tried to buy from someone else and didn't because of that you have put the they were allowed to join my cell which is a regional market in two thousand and twelve but my so decision by the energy markets that that spanned over fifteen states and have generators that can provide fower to everybody who's in my so i said controls the transmission system but they have energy more now than energy is in my so cost price is invalid because the utilities are now in myself and have to follow my sos market rules the my so market rules were set up all my floor the energy utilities has to be it has to be rectified that one would what occidental is claiming is that the the the order that established what it costs are the things to it what is claiming is that the order  the case well that's what they do so they say now what will be decided in the case if the judge decides that the judge can't decide to change the my so markets you can't decide to change how my so operates its markings the judge can only decide that  order and it violates purposes that violates per well the reason why it's so important to let the fur is the allow the state to stay in place and to allow the fur to continue to make  decision in my full integration order what if the judge decides that we violated you no purpose by issuing an order that was based on our my so market rules my my so market rules and we can't fix my so market rules that we didn't before complaining for it slow to act at something but the first doesn't take ten years act on everything work x and some things quickly the vertex of something is very very slow you know anecdotal analysis of looking at the first website to see of cases are there are old counsel argument that occidental is not suffering any harm here or your honor that that's just wrong i think it's important distinguish between injury and damages there's no doubt that we've suffered injury every day since this order was in place we've been unable to exercise our rights under for purpose with walked into well there's rights in terms of how we sell energy and then the rights that it gets apply that so each time we sell energy there's a question of whether it's at the appropriate rate or not there are specific curtailment rights that we have one of the the the the way we would look at the case is that the actual issue of liability here is not that difficult it's a question as niagara mohawk says about interpret in the statutes in the regulations what is more challenging here is in part because of the way is the damages issue because you have to take a look at all of these sales that have occurred ever since the l p s see implemented this new scheme when you have to take a look at that and whether it's above the the rate that was prescribe or below and sort i'm sure you've taken a look at  any any any injury from there will your honor we have taken a look at it but what happened in the district court is we explain in our briefs is that part of us in order to figure out exactly what the quantum of damages we need discovery we started to get that discovery because the the case should go forward but then when the district court we started giving the discovery the district court state things one of the reasons i mention that is in terms of the remedy we really urge the court that the right remedy here is to send it back to the district court in force the statute that congress said but recognize that the parties still are in the early stages of the case there would be nothing wrong with the district court saying before you have a right to intervene we will give this to his attention this court's decisions of not the district court's decisions before the parties or even to the point of completing the initial stages of the case first would have more than you know ninety one hundred eighty days to decide to get into the case if i could your honor so i did want to make three points in response on rebuttal first very quickly  i don't know how much all i know is that every day we've been selling energy and depending on how the prices vary and other things will depend on how you calculate the damages but certainly we have proper rights that been stripped from us ever since the new scheme was in place with quickly to combined with the rule of orderliness means that hines is controlling here and lynn is also controlling course the way we look at these decisions is to say that there's something special about the fact that when congress has dictated how the scheme should work we really are as a practical matter judge barksdale that there is overlap in terms of some of the factual predicates that set the stage for the two cases but they're very different they're different claims they are between different entities with different parties and their different standard said could apply under the relevant statutes there's lots of circumstances where you get to go to different adjudicators to resolve different claims but that doesn't mean that you you have to wait for the other one in fact as i mentioned judge janice if there's any question the primary jurisdiction here the primary jurisdiction by the district judge he just said he'd be home for expertise your honor the obvious i should have said that as well because you're absolutely correct all the district court says i'd like the views well that's fine congress has set forth a process the district court can say for come before us likewise you honor i think this goes to opposing counsel's concerns about all this problems about might what might happen judge davis your question is exactly right and if it violates her but that's the issue before the court not whether it creates problems but the real answer is that why should we trust either of the parties there is a federal agency that could tell you if there's going to be a problem here that would be for that should be presented to the district court in the first instance i mentioned i wanted to clean up the record if i could just address a few things opposing counsel talked about on she refers to