United States Court of Appeals, District of Columbia Circuit
October 25, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-00065)
Leggette argued the cause for Appellant. With him on the
briefs were Rosario C. Doriott Domínguez and Alexander
N. Rountree, Attorney, U.S. Department of Justice, argued the
cause for Appellees. With her on the brief were John C.
Cruden, Assistant Attorney General, and David Gunter,
Before: Brown and Srinivasan, Circuit Judges, and Randolph,
Senior Circuit Judge.
Randolph, Senior Circuit Judge
district court dismissed as untimely an action Continental
Resources, Inc. brought for judicial review of a decision of
the Department of the Interior. Cont'l Res., Inc. v.
Jewell, 134 F.Supp.3d 231, 237 (D.D.C. 2015). The
question on appeal is whether, as the district court ruled,
Continental filed its action more than 180 days after its
"receipt of notice" of Interior's "final
decision." 30 U.S.C. § 1724(j) & (h)(2)(B).
extracts gas from leased federal land and pays royalties to
the Interior Department. On May 5, 2010, an agency within the
Interior Department began an administrative proceeding
against Continental by issuing an order demanding more than
$1.7 million in additional royalties. Continental took an
administrative appeal to the agency's director. From the
date of the agency's order, the Secretary or a designee
had thirty-three months to reach a final decision in this
matter. See 30 U.S.C. § 1724(h)(1) & (2);
Murphy Exploration and Production Co. v. U.S. Dep't
of Interior, 252 F.3d 473, 480-82 (D.C. Cir. 2001).
Under § 1724(h)(2)(B), if the Secretary fails to reach a
final decision within that time, the Secretary "shall be
deemed to have issued a final decision" against the
lessee when the amount in controversy is $10, 000 or more, as
it was here. 30 U.S.C. § 1724(h)(2)(B).
33-month period may be extended by any period of time agreed
upon in writing by the Secretary and the appellant."
Id. § 1724(h)(1). In July 2010, Continental and
the Interior agency entered into such an extension agreement,
placing Continental's appeal "on hold from June 12,
2010 through December 13, 2010, pending completion of
settlement discussions." Joint Appendix 151. Extension
agreements are apparently common. See Agency's
Mot. for Recons. 7-10, Cont'l Res., Inc. v.
Jewell, No. 1:14-cv-00065-RDM (D.D.C. Sept. 25, 2013),
ECF No. 21-3. Continental's written agreement also stated
that the parties extended "for the same number of days
the 33-month time frame for processing appeals as set out in
30 U.S.C. 1724(h)(1), " but that either party could
terminate the agreement. Joint Appendix 151. Approximately
three weeks later, on August 18, 2010, the Interior agency
informed Continental that it had decided not to enter into
April 2013, Continental received an unfavorable decision from
the agency's director. The company filed an
administrative appeal to the Interior Board of Land Appeals.
The Board, concerned about its jurisdiction, issued a
show-cause order questioning whether the "deemed
final" provision had already been triggered, thus ending
all administrative proceedings with a final decision of the
Secretary. In response, Continental argued that the August
2010 letter from the Interior agency terminated their
extension agreement and that the deadline for the
Secretary's decision therefore passed on June 15,
2013. Interior argued that the letter had not
terminated the extension agreement and that the deadline
would not be reached until August 12, 2013. In a five-page
opinion, the Board ruled that the deadline passed on June 17,
2013, at which time the Secretary's non-decision became
"deemed final." Cont'l Res., Inc., 184
IBLA 59, 64 (2013). The Board issued its opinion on July 29,
30 U.S.C. § 1724(j), Continental had 180 days from
"receipt of notice" of the final agency action to
file its complaint. Continental filed the complaint in the
district court on January 16, 2014. Interior moved to dismiss
it, arguing that the complaint was untimely because more than
180 days had passed from the date of the Secretary's
"deemed final decision, " which Interior identified
as June 17, 2013, the date given in the opinion of the Board
of Land Appeals. The district court agreed and dismissed
Continental's complaint. Cont'l Res., 134
F.Supp.3d at 237.
180-day period begin on June 17, 2013, as Interior argued and
the district court decided, or on July 29, 2013, the date of
the Board's decision, as Continental argued? If June 17,
Continental's complaint is time-barred; if July 29, the
complaint is timely.
answering this question we understand that the 180-day period
for seeking judicial review did not run from the date of
final agency action. The 180-day period ran instead from the
date Continental received notice of that action. Section
1724(j) is quite clear about this. The provision states that
"a judicial proceeding challenging the final agency
action" is "timely so long as such judicial
proceeding is commenced within 180 days from receipt of
notice by the lessee or its designee of the final agency
action." 30 U.S.C. § 1724(j).
did Continental receive notice of the Secretary's
"deemed final" decision? The date of notice could
not possibly have been earlier than the ruling of the Board
of Land Appeals on July 29, 2013. Until then neither
Continental nor Interior could know what date the Board would
designate as the date of the Secretary's final decision.
Both sides had presented colorable arguments to the Board.
Needless to say, one cannot be on notice of final agency
action while the date of that action has not yet been
determined. Only when the Board ruled on July 29, 2013, did
Continental learn that § 1724(h) had converted
Interior's inaction into a "final decision in favor
of the Secretary" on June 17, 2013. The Board's
ruling, and Continental's "receipt of notice"
of that ruling, triggered the running of the 180-day period