                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NORTHWEST PUBLIC                                 No. 10-36077
COMMUNICATIONS COUNCIL;
UNIDENTIFIED PSPS A TO Z; NPCC                   D.C. No. 3:09-cv-01351-BR
MEMBERS, Central Telephone, Inc.;
Communication Management Services,
LLC; Davel Communications, aka                   MEMORANDUM*
Phonetel Technologies, Inc.; Interwest Tel,
LLC; Interwest Telcom Services
Corporation; NSC Communications Public
Services Corporation, National Payphone
Services, LLC; Pacific Northwest
Payphones; Partners in Communication; T
& C Management, LLC; Corban
Technologies, Inc.; Vally Pay Phones, Inc.,

              Plaintiffs - Appellants,

  v.

QWEST CORPORATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        Argued and Submitted May 7, 2013
                                Portland, Oregon

Before: GOODWIN, REINHARDT, and BERZON, Circuit Judges.

      Plaintiffs-Appellants Northwest Public Communications Council, along with

numerous other groups (collectively, NPCC), appeal the dismissal of their federal

claims as barred by the relevant statute of limitations. We review de novo, Geweke

Ford v. St. Joseph’s Omni Preferred Care, Inc., 130 F.3d 1355, 1357 (9th Cir. 1997),

and affirm.

      In this context, an action to recover damages must be brought within two years

of accrual, and an action to enforce an FCC order for payment must be brought within

one year of the order. 47 U.S.C. § 415(b), (f).

      In Davel Commc’ns, Inc. v. Qwest Corp., 460 F.3d 1075 (9th Cir. 2006), this

court addressed the operation of § 415's time bar. The Davel court, agreeing with the

D.C. Circuit, found Davel was on inquiry notice of its claims against Qwest beginning

on the deadline by which Qwest failed to file fraud protection rates. Id. at 1091-92

(citing Sprint Commc’ns Co. v. F.C.C., 76 F.3d 1221 (D.C. Cir. 1996)). The Davel

court explained:

      As soon as Qwest failed to file fraud protection rates . . . it was in
      technical non-compliance . . . and Davel was on inquiry notice that it
      might be paying excessive rates for fraud protection. . . . The fact that,
      until Qwest filed its new fraud protection rates in 2003, Davel was not


                                         -2-
      in a position to determine the precise amount of the overcharges, or even
      whether the charges were excessive at all, does not change this result.

Id. at 1092 (emphasis added).

      Here, NPCC’s filing of the “Rate Case” in 2001 is the most obvious example

that NPCC was on notice of its claims against Qwest. The district court correctly

found this date sufficient to trigger the running of the limitations period. We also note

that Qwest’s filing of new rates in the wake of the 2003 Wisconsin Order, and the

PUC’s approval of those rates, also put NPCC on notice as to its claims; the 2003 rates

indisputably notified NPCC that the rates it was paying earlier were too high.

      NPCC raises a litany of reasons to support its failure to file the claims earlier.

None are persuasive.

      NPCC’s separation of powers argument fails. Even if the district court lacked

the power to determine actual NST compliance, that is, what rate would bring Qwest

into compliance, that question bears only on damages and the court could still

rightfully determine liability. See Davel, 460 F.3d at 1092.

      NPCC’s administrative exhaustion argument fails. There is a difference

between statutorily-required exhaustion, and exhaustion as a prudential doctrine. See

W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1195-96 (9th Cir. 2008). NPCC

has pointed to no statutorily-imposed exhaustion requirement. Cf. 47 U.S.C. § 207



                                          -3-
(suit for damages actionable in either FCC or federal court). Nor has NPCC provided

any authority to establish that if a prudential doctrine might have been invoked, it

prevents accrual of that claim. See, e.g., Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047

(9th Cir. 2001) (exhaustion of judicial and administrative remedies in § 2241 habeas

case is prudential, and therefore subject to waiver of the requirement), abrogated on

other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).

      NPCC’s ripeness argument also fails. While the ripeness doctrine precludes

adjudicating premature disagreements over administrative policies before formal, final

determination, Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 200-01 (1983), the dispute here concerns Qwest’s obligation

to pay refunds, not the actual correctness of any determination as to proper NST rates

by the Public Utility Commission.

      Finally, NPCC’s reliance on the filed rate doctrine fails. The filed rate doctrine

“bars suits challenging rates which ‘if successful, would have the effect of changing

the filed [rate].’” Davel, 460 F.3d at 1084. Again, this suit does not challenge filed

rates. Thus, none of NPCC’s cited doctrines would have had the effect of preventing

adjudication in federal court prior to the final determination of NST compliance, and

therefore they fail to establish that NPCC’s claims had not accrued.




                                          -4-
      NPCC then argues for the application of equitable tolling, an argument the

district court properly rejected. NPCC was represented by counsel and, as discussed

above, had knowledge of its possible claim. See Johnson v. Henderson, 314 F.3d 409,

414 (9th Cir. 2002) (equitable tolling looks to whether reasonable plaintiff would

know of possible claim; retaining counsel typically ceases tolling). This case does not

support application of judicial estoppel either.

      In sum, we affirm the district court’s dismissal of this case as time barred. We

do not reach other issues briefed and argued.

      The parties’ outstanding motions to strike are all DENIED.

      AFFIRMED.




                                          -5-
