which it approved wholesale electrical rates for did and as i like to point out and in fact the crux of our argument is that under m c i versus eighteen t when ferk changed the way rates were file i mean old system to the new system for act it inconsistently with section two hundred five of the federal power act in m c i vs eighteen t where the commission the f c c had given people the option filing rates the court said it's not up to the agency to change the way rates are filed it's up to congress in this case our primary argument is that because the filed rates did not comply with section two of five they did argument is that very simply the statute required rates to be filed in a certain way and they weren't filed that way for had no authority to permit any other kind of rate and therefore there never again so that the filed rate tariff doctrine is an exacting doctrine it's a strict doctrine if any element is doc applied with it doesn't exist and i think it's pretty clear if you look at what they did the regulation and post telecommunications cases on which you may be relying could where they really did abandon rate regulation well in this case hasn't abandoned some regulation but what they have of what they didn't abandon this compliance with went into force and people i guess i guess first answer to that is that well it's it's a filed rate if you say that you are going to charge the market you know what buyers and sellers reach and that that's what up before the supreme court has said over and over again that strict compliance with the filing requirement with a filing requirement is necessary before the file break can come into effect the b a again going to stretch it to a five seat to answer your question because i think it's important point it's the key point of our appeal is that you quote must show all rates and charges and they used to actually show you how they calculat the following first of all no one has said this but there is a period of time and that's the period of time october two thousand to the early part of the case about a six month period which firkin said there is no refund authority so there will never be any for a grammy for that period of time ok let's talk about a period where ok but i don't want to lose that because understand ok but i still want to know how you how you determine what is owed your client based upon your theory that there was no valid oh my client as we would in any normal and i trust case we will put and i trust economists on the witness stand it was that was what would have been a just and reasonable rate and don't difference will be measured damages will be the difference between that rate stablished by your experts and what what your client actually paid i respectfully beg to differ what and i trust economists will say as they do in every case is they will testify as to the but for world what price would have been without economic coercion or collusion that's a different standard and just an unreasonable i've never put and i trust economists understand it say what is a just a reasonable price that it's not their mission their mission is what would have been the price but for collusion and it's different it's a different it's what court i think it was justice scalia noted and the electrical just like number one case just this is where i think that's where they also erred there's three cases right on point i think the first is utter tail the second is honda and the third is the california supreme court and younger and they also say that you you have to have an actual conflict a potential conflict not a hypothetical conflict right now we don't have a conflict it could be that we go to trial the trial judge will be presented with judge wally i hope will be presented with the issue of we possibly arise the only dispensed to the filed rate tariff that we've heard from the other side is that these market based tariffs that have this language that we will establish a rate in the comply with section two of five c and i submit to the court that that can't possibly comply with the very strict requirements of the fives to the supreme court and security services here mark said another case on this point so that if you're missing even that when security service is kmart and one hundred ninety four supreme court cases and that's takes me to preemption we spend a lot of time in our brief talking about the legislative history of the federal tail wind of cases whether congress intended to occupy the field and as i was getting ready for argument i think that none of that this court should have to reach because there's a much easier answer and a correct answer and that's the team game entirely on the filing requirement and i repeat that on the filing requirement now the importance that we place on that is this if there was no valid filing which we believe i unquestionably the case here there cannot be any preemptive attack why is that because again the inquiry from the court on the issue of preemption is whether congress intended to occupy the field if congress never intended that there would be a period of time where the electricity market operated without any valid rate how could there be quick action or going back to just canby's question intended a market based scenario if congress never intended a market based scenario then congress could not have attended intended that there be preemption in this scenario as this remedies but under your theory of the case perks the existence of post deregulation is almost irrelevant it's sort of looks back on what the rates were charged without any impact on the setting of future rates for it is still regulating it's still dealing with these companies are now going forward basis and it's still regulating but since the whole school operated in an area under your theory to order refunds because it would be doing so on the basis of of rates that it had no authority to to prove you know that's a question not in front of her and i can't answer that but i think were federal and state laws complement each other it would be logical to conclude that congress intended to allow federal antitrust laws to go forward and not state and i trust laws and the younger decision came out the same way so e of a valid rate there can't be a filed rate that provides it's parts of this case in the absence of a filed rate if you follow the team case since we were in an area where congress never intended for thirty two related but separate grounds for dismissal filed rate and federal preemption both apply from a straightforward application of recent decisions of this court applying these doctrines to industries regulated like for i refer to three cases none of which i heard from the other side earlier the transmission agency of northern california your pacific power hotel electric power markets and issue here exclusively and that's state law claims like the ones played here are barred by the trail great file great document and are preempt i think tank in particular clarifies that the fact that there are market based ratings which seems to be the primary argument asserted by the appellant and is not part of the application o specific allocation of close quote electricity or transmission capacity to ninety five third at nine thirty all for did was to approve the operation of a separate transmission line there the alternatives in or tie that to the extent it was used had the effect of reducing capacity available to the plaintiff on the interconnected pacific recurring refer quarter eighty date the court explained that quote the order regulates rates not by selling them directly but rather by setting rules requiring open access to transmission lines and uniform openly disclosed rates and these open policies as to transmission capacity expects will mean little in rates so that at a competitive level that appears to ninety set by the market and recognize that the amount of transmission allocated the specific disputed issue would also be set by these market horses which would determine how much the new energy was used and how louisiana public service commission held the application of the filed rate doctrine in a case under the federal power act where perk approved an arrangement that left the cost allocation issue there to the discretion would not have decided this most recent case that way because obviously they're assuming that the commission has the authority to set marketplace i believe that that's correct now let me say that committee's decision to consider and you are asked you know to be available shall be based upon consideration of current and future resource needs the project or length of time the unit would be in th numerical cost based rate filed in advance that plaintiff is describing is required by the federal power is what i do know that the commission had to enter appropriate orders making well i guess i would say yes in this sense and i think it actually goes to the heart of the plaintiff's argument you know basically the argument is well wait a minute the problem a doctrine can't apply by a rate that merely says the rates are going to be set by the market well that's not what the rate in france complaint is limited to allegations of misconduct in quote markets operated by close quote the california power exchange and the california independent system operator that's in its complaint e r s double otunnu a paragraph or two brooke regulates these particular markets not only by means of the market rate tariffs issued to the defendants but also by means of terrorists filed with perc by the p x and i saw as the court recognized them a california power exchange corp case p x out the way in which the market works were the way in which it approved the transfer in california to this different system and if you look at the tariffs which we submitted as a part of the supplemental excerpts  detail good vision for how the prices adjusted for example just taking one market the iso imbalance in energy market there are two types of imbalance energy instructed and i'm instructed if you look at that you want to protect the agency's jurisdiction to determine the rate how did states interfere with it i agree that that part of the rationale is kind of also a rationale for field preemption and i think this is an area of field preemption and you should make that clear as a part of your decision because it'll lemony a lot of the argument over the confines of a final great doctrine if you just recognize that the field of wholesale power sales has been if we were dealing in the same ballpark they would have had to distinguish and deal with those cases the gammage is problem pointed out by judge harmon is a significant problem for the plaintiff to proceed they have to show that there is a  different price by which to measure damages that's precisely what the filed rate doctrine prohibits it doesn't matter that the n i trust economists is going to say something other than what the just and reasonable rate is going to be  is that under the doctrine the only rate that they're entitle to is the just in reasonable claims were barred without reference to the fall great doctrine because the purpose quote exclusive authority to regulate the transmission and sale at wholesale of electric energy you know interstate commerce to ninety five thirty nine twenty eight that to me illustrates a recognition by this court well preemption in this area i'd like to finish my commenting on  according to the supreme court between the area in which is preempted and the area governed by federal law i think that the law should be preempted even where federal law would be allowed how you accommodate federal law with federal regulatory systems is a different question i understand your point you are  but i believe one hundred million dollars of refunds have been ordered so far and they're working only they've set the rate for each hour during the period involved which is no small task and the hearings are being conducted to determine precise very well as no refund authority because congress gave it no refund authority that is a decision back congress as to how the federal energy regulatory commission acts with refunds of rights that is a congressional issue right there that a decision by park or congress not to act in an area is in fact a decision by the regulatory body i don't know how you get around and i'll read this rather quickly but i don't know how the plaintiffs or this court can get around the fact that the relief sought in this case directly conflicts as the united states brain court said and they got our case the fact that's the airbag case the fact that the nowhere bag lawsuit does in fact conflict with the with the jurisdiction and relief and authority of the federal energy regulatory commission in our case and i'll be glad to answer any questions on it but i don't want to prolong this anymore  filing and more importantly burke has said that those filings were not the filed rate in san diego gas and electric kirk said that the fines were the market based one sentence expectation we will enter into a contract in the future so the agency itself has rejected what they're trying to relying on as the from the file great and why they're trying to rely on as they know they haven't filed a valid rate here the cases they've cited the entergy  congress and made a special authorization which allowed for the intertie each type of arrangement that was an issue there here congress has made an express statement it told her that you must have rates that are pre approved the rates have to be specific they have to set forth the basis for calculating the rate that wasn't complied with here so tank is not on point as for the conflict the council just raised i think one of their own quote state laws preempted when it actually conflicts with federal law and the cases of said you have to wait for the actual conflict there is no conflict yet so we submit it would not be correct to dismiss this case by conflict bring action based on some potential conflict thank you clue i've made this point repeatedly i'm going to stand and fall by this point no court except for judge whaley has ever ever and there have been dozens of cases over decades on the far right tariff doctrine applied the file break tariff doctrine which the supreme court has recognized to be a harsh harsh rate or a harsh remedy in certain circumstances where there's never been