One word is conspicuously absent from the Federal Circuit's opinion in Alpine PCS, Inc. v. United States, No. 17-1029 (Jan. 2, 2017): "exhaustion."
We all know that exhaustion of administrative remedies isn't usually required before bringing a constitutional takings claim, but make no mistake -- despite the absence of the word in the opinion, the rationale of the court was that the property owner could not bring a takings claim under the Tucker Act in the Court of Federal Claims because it had not exhausted its administrative remedies.
The property owner asserted that telecommunications licenses it possessed had been taken, and the federal government breached a contract, when the licenses were cancelled after it didn't make required payments. The CFC dismissed the action for lack of jurisdiction, concluding the federal Communications Act provided a comprehensive statutory scheme under which Alpine could have raised its contract claim, thus depriving the court of Tucker Act jurisdiction.
The Federal Circuit agreed, concluding (sua sponte) that "Tucker Act jurisdiction over the
claim is displaced by the Communications Act." Slip op. at 14. The court held this conclusion applied to both the contract and takings claims:
The Communications Act, including 47 U.S.C. § 402(b), readily supports the conclusion that, as relevant ;to Alpine’s grievance, there is a comprehensive statutory scheme through which Alpine could present, and is directed to present, its takings claim, to the exclusion of the Tucker Act under the Horne analysis. As for relief at the agency level, there was no procedural impediment to Alpine’s presenting a takings claim to the FCC. The FCC did not suggest that it lacked the authority to review the license cancellation and take steps to provide compensation. Nor would Alpine’s takings claim have been futile in agency proceedings; for example, Alpine’s claim would not have required the FCC to question the constitutionality of a statute. And the FCC is generally under an obligation not to take action contrary to the Constitution and to hear properly presented constitutional claims.
Slip op. at 18-19 (citations omitted).
Thus, the court concluded, "Under the comprehensive statutory scheme, then, Alpine could have raised a constitutional takings claim; the FCC had the authority to grant relief; and the D.C. Circuit had jurisdiction to review whether a taking occurred and, if so, whether the FCC decision “yield[ed] just compensation.” Slip op. at 20 (citing Williamson County, 473 U.S. at 194).
That's exhaustion of administrative remedies by another name.
Alpine PCS, Inc. v. United States, No. 17-1029 (Fed. Cir. Jan. 2, 2017)
