Nycal Offshore Development Corporation v. Bernhardt ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
NYCAL OFFSHORE DEVELOPMENT )
CORPORATION, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-966 (RBW)
)
DEBRA HAALAND, in her official )
capacity as Secretary of the Department of )
the Interior, 1 )
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiff, Nycal Offshore Development Corporation, brings this civil action pursuant
to 28 U.S.C. § 2201, against the defendant, Debra Haaland, Secretary (the “Secretary”) of the
Department of the Interior (the “Department”). See Complaint (“Compl.”) ¶ 1, ECF No. 1.
Currently pending before the Court is the Secretary’s motion to dismiss. See Defendant’s Motion
to Dismiss (“Def.’s Mot.”), ECF No. 12. Upon careful consideration of the parties’
submissions, 2 the Court concludes for the following reasons that it must grant the Secretary’s
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
1
Debra Haaland is the current Secretary of the Interior, and she is therefore substituted for David Bernhardt as the
proper party defendant pursuant to Federal Rule of Civil Procedure 25(d).
2
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Secretary’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss
(“Def.’s Mem.”), ECF No. 12; (2) the plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss (“Pl.’s Opp’n”), ECF No. 17; and (3) the Secretary’s Reply in Further Support of Defendant’s Motion to
Dismiss (“Def.’s Reply”), ECF No. 19.
I. BACKGROUND
The following allegations are taken from the plaintiff's Complaint unless stated
otherwise. In 1982, the Secretary sold oil and gas exploration leases for lands offshore the
California coast, see Compl. ¶ 12, including “a pair of leases for oil and gas exploration in
Federal submerged lands offshore of Santa Barbara, California [(the ‘Leases’),]” id. ¶ 1. The
Leases were issued with a primary term of five years. Id. ¶ 12. The plaintiff purchased a
fractional interest in the Leases from a successor lessee in 1990. Id. ¶ 13.
Prior to and after the plaintiff’s purchase, the Secretary suspended the leases to allow for
completion of an oil and gas development study. Id. ¶ 14. These suspensions essentially
“continued the [L]eases in effect.” Id. On November 12, 1999, the Secretary, based on “a study
[ ] carried out concerning the status and future of oil and gas development offshore of
California[,]” granted an additional suspension (the “1999 suspension”). Id. ¶ 14–15. On
November 15, 1999, the State of California filed suit in the United States District Court for the
Northern District of California to invalidate the 1999 suspension claiming that the Secretary
lacked “authority to grant the November 1999 suspensions without first determining that those
suspensions would be consistent with California’s coastal management program[,]” in violation
of the Coastal Zone Management Act, 16 U.S.C. § 1456(c)(1). Id. ¶ 16. On June 20, 2001, the
United States District Court for the Northern District of California agreed with the State of
California and ordered the Secretary “to set aside its approval of the requested suspensions” and
“direct suspensions of the [Leases] . . . for a time sufficient” to complete its Coastal Zone
Management Act compliance obligations. Id. ¶¶ 16–17; Pl.’s Opp’n at 3 (citing California ex rel.
Cal. Coastal Comm’n v. Norton, 150 F. Supp. 2d 1046, 1057–58 (N.D. Cal. 2001), aff’d, 311
2
F.3d 1162 (9th Cir. 2002)). As ordered, the Secretary “issu[ed] the directed suspension.” Pl.’s
Opp’n at 4.
“In 2002, many of the lessees, including other factional interest holders in the [L]eases,
commenced an action in the [United States] Court of Federal Claims.” Compl. ¶ 21. Those
lessees, who did not include the plaintiff, prevailed and were awarded restitution, “which
required the return of these lessees’ leases to the United States.” Id. ¶ 22. On April 10, 2009,
those lessees assigned their leasehold interests to the United States. Id. (citing Amber Res. Co.
v. United States, 68 Fed. Cl. 535 (2005), aff’d, 538 F.3d 1358 (Fed. Cir. 2008)). The plaintiff
was not a party in the Court of Federal Claims litigation brought by the other lessees, was not a
recipient of the resulting restitution award, and, therefore, did not assign its interests to the
United States. See id. The plaintiff filed a separate suit in the Court of Federal Claims in 2005.
See Compl. ¶ 21. The plaintiff ultimately did not prevail in that case and its claim for lost profits
was dismissed. Id. ¶ 23.
In 2013, “the Regional Director of the [ ] Department’s Bureau of Safety and
Environmental Enforcement, Pacific Region, sent a letter [(the ‘Ming Letter’)] to [the plaintiff]
at its London headquarters[.]” Id. ¶ 24. The letter stated “that the [L]eases ‘[had] not been
relinquished nor ha[d] they expired due to the continued court-ordered directed suspensions on
those lease[s].’” Id.; see also Pl.’s Opp’n, Ex. 4 (Ming Letter). The letter further stated “that the
Department ‘[would] request permission to lift the court-ordered directed suspensions[.]”
Compl. ¶ 24. The letter “not[ed] that ‘[the plaintiff’s] leases [were] not in the primary term, no
production or operations ha[d] occurred on [the plaintiff’s] leases for more than 180 days, and
there [was] not a suspension request for these leases upon which [the Department] may act.’” Id.
(alteration in original). Although the plaintiff “received this letter[,]” it continued “to pursue its
3
damage[s] action, which was then awaiting briefing in the [United States] Court of Appeals for
the Federal Circuit.” Id.
“[O]n or about June 17, 2013, the United States moved to have the directed suspensions
[lifted], but it never served the motion papers on [the plaintiff].” Id. ¶ 25. On July 13, 2013, the
Northern District of California “granted what it denominated as the ‘Federal Defendants’
Amended Unopposed Motion,’ ordering that ‘[t]he lease suspensions ordered by th[at] Court in
its order of June 20, 2001, 150 F. Supp. 2d 1046, 1057–58 (N.D. Cal. 2001) are hereby
LIFTED.’” Id. ¶ 33 (quoting Order at 1–2, California ex rel. Cal. Coastal Comm’n, No. 4:99-cv-
04964-CW, ECF No. 180 (N.D. Cal. July 23, 2013) (order lifting directed suspensions) (“the
Northern District of California’s July 2013 order”) (capitalization in original).
On August 12, 2013, the Department sent another letter to the plaintiff . . . stating that,
“[a]s a consequence of the [Northern District of California’s July 13, 2013] order, [the
plaintiff’s] lease has expired, effective July 23, 2013.” Compl., Exhibit (“Ex.”) A (Letter from
Joan Barminski, Regional Supervisor, U.S. Dep’t of the Interior, to William G. Horn, Nycal
Offshore Dev. Corp. (the “Barminski Letter”)) at 1–2. 3 According to the plaintiff, it was not
aware of the 2013 proceedings in the Northern District of California, did not receive this letter,
and did not learn about either until 2017. Id. ¶¶ 35–37.
Once the plaintiff learned of these events, it filed a motion to intervene and void the
Northern District of California’s July 2013 order due to the “failure of the [United States] to
serve[ ]its motion paper []” on the plaintiff. Id. ¶ 37. The Northern District of California denied
3
As Exhibit A to its Complaint, the plaintiff attached a number of different documents, with no consistent page
numbering throughout the exhibit. See, e.g., Compl., Ex. A (Barminski Letter) at 1–2; id., Ex. A (Order, California
ex. rel. Cal. Coastal Comm’n, No. 4:99-cv-04964-CW (N.D. Cal. July 23, 2013)) at 3–4. Accordingly, for ease of
reference, the Court will refer to the documents in Exhibit A using the page numbers automatically generated by the
Court’s ECF system.
4
the plaintiff’s motion to intervene, concluding that the plaintiff “should have intervened years
ago in order to protect its inchoate interest” in the Leases. Id. ¶¶ 40–41. The plaintiff appealed
that ruling. Id. at ¶ 42. 4
On April 5, 2019, the plaintiff filed its Complaint in this Court, “seeking a judgment,
pursuant to 28 U.S.C. § 2201, declaring that [the plaintiff] is[,] and has been since 1990[,] the
owner of a fractional interest in [the Leases].” See id. ¶ 1. On September 27, 2019, the
Secretary filed her motion to dismiss based on Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). See generally Def.’s Mot.
II. STANDARDS OF REVIEW
A. Rule 12(b)(1) Motion to Dismiss
Federal district courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994), and therefore, “[a] motion for dismissal under
[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s
jurisdiction[,]’” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.)
(quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to
dismiss a claim if it “lack[s] [ ] subject[-]matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). And,
because “it is to be presumed that a cause lies outside [ ] [the Court's] limited jurisdiction,”
Kokkonen, 511 U.S. at 377, “the plaintiff bears the burden of pro[ving]” that the Court has
jurisdiction over the plaintiff's claims, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
4
The parties dispute the status of the plaintiff’s appeal of the Northern District of California’s July 2013 order,
compare Def.’s Mot. at 2 (asserting that the plaintiff has “since abandoned that appeal”), with Compl. ¶ 42 (alleging
that the plaintiff “is appealing that ruling”), however the Court need not resolve this dispute because the existence of
an appeal of the plaintiff’s motion to intervene in the Northern District of California case has no bearing on the
resolution of the Secretary’s motion in this case.
5
In deciding a motion to dismiss based upon a lack of subject-matter jurisdiction, the
Court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal
Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may
consider such materials outside the pleadings as it deems appropriate to resolve the question [of]
whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics,
104 F. Supp. 2d 18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth
of all material factual allegations in the complaint and ‘construe the complaint liberally, granting
[the] plaintiff the benefit of all inferences that can be derived from the facts alleged[.]’” Am.
Nat’l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas
v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the [p]laintiff's factual allegations
in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving
a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F. Supp. 2d at 13–14
(alterations in original) (internal quotation marks omitted).
B. Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can
be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a] reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
6
In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the
complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). While the Court must “assume [the] veracity” of any “well-
pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Also, the Court need not “accept legal conclusions cast as factual
allegations[,]” or “inferences drawn by [the] plaintiff if those inferences are not supported by the
facts set out in the complaint[.]” Hettinga, 677 F.3d at 476. The Court “may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the
complaint[,] and matters of which [the Court] may take judicial notice.” Equal Emp.
Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
The Secretary’s motion to dismiss contends that the Court lacks subject-matter
jurisdiction to hear the plaintiff’s claims, Def.’s Mem. at 10, and that the plaintiff has failed to
state a claim alleging final agency action, see id. at 12. The Secretary also argues that the
plaintiff’s claims constitute an impermissible collateral attack on judgments rendered by another
court, id. at 17, but the Court need not address this argument because the Court agrees that the
plaintiff has filed to state a claim alleging final agency action.
A. Rule 12(b)(1)
The Court must first consider the Secretary’s jurisdictional arguments. See Noel Canning
v. Nat’l Lab. Rel. Bd., 705 F.3d 490, 496 (D.C. Cir. 2013) (“[F]ederal courts, being courts of
7
limited jurisdiction, must assure themselves of jurisdiction over any controversy they hear[.]”).
The Secretary argues that the plaintiff “fails to establish that [the government’s] sovereign
immunity has been waived[,]” Def.’s Mem. at 11, because the two statutes cited by the plaintiff
in its Complaint, 28 U.S.C. § 1331 and the Declaratory Judgment Act, 28 U.S.C. § 2201, see
Compl. ¶ 7 (alleging that the “Court has subject[-]matter jurisdiction to adjudicate this action
under 28 U.S.C. §§ 1331 and 2201”), “do[] not provide a waiver of sovereign immunity[,]”
Def.’s Mem. at 11. In response, the plaintiff presents no argument that the Declaratory Judgment
Act confers subject-matter jurisdiction on the Court, see generally Pl.’s Opp’n, and only
cursorily argues that § 1331 confers jurisdiction on the Court because the Secretary “prematurely
terminate[d] the right of a lessee whose property interest derived from the statutes governing
production of hydrocarbons from Federal offshore lands” and “[n]o official has the power to do
that without being subject to judicial review[,]” id. at 11. As authority for this proposition, the
plaintiff cites “the discussion of the Larson-Dugan exception to the doctrine that the general
federal question statute does not waive sovereign immunity.” Id. (citing Swan v. Clinton, 100
F.3d 973, 981 (D.C. Cir. 1996)). The Court agrees with the Secretary that neither § 1331 nor the
Declaratory Judgment Act confer subject-matter jurisdiction to this Court over the plaintiff’s
claims.
First, the United States possesses sovereign immunity from suit “unless Congress has
expressly waived the immunity defense.” Z St., Inc. v. Koskinen, 44 F. Supp. 3d 48, 62 (D.D.C.
2014). “[T]he existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell,
463 U.S. 206, 212 (1983). As the Secretary correctly notes, see Def.’s Mem. at 10, the
Declaratory Judgment Act does not confer subject-matter jurisdiction. See Yee v. Jewell,
8
228 F. Supp. 3d 48, 53 (D.C. Cir. 2017) (“[T]he Declaratory Judgment Act is not a jurisdiction-
conferring statute.”).
Second, as the Secretary again correctly notes, see Def.’s Mem. at 11, § 1331 does not by
itself waive sovereign immunity. See Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996)
(noting that “[n]either the general federal question statute nor the mandamus statute by itself
waives sovereign immunity”). Nevertheless, as the plaintiff correctly indicates, see Pl.’s Opp’n
at 11, the Larson-Dugan exception “holds that sovereign immunity does not apply as a bar to
suits alleging that an officer’s actions were unconstitutional or beyond statutory authority, on the
grounds that ‘where the officer’s powers are limited by statute, his [or her] actions beyond those
limitations are considered individual and not sovereign actions[,]’” Swan, 100 F.3d at 981
(quoting Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949)) (citing Dugan v.
Rank, 372 U.S. 609, 621–23 (1963)).
However, for the Larson-Dugan exception to apply, the plaintiff must identify a
“statutory [or constitutional] source of authority that limits the defendant’s actions.” Maynard v.
Architect of the Capitol, Civ. Action No. 19-258, 2021 WL 2417350, at *10 (D.D.C. June 14,
2021) (Walton, J.). As the Secretary accurately notes, the plaintiff’s “passing reference to the”
exception “does not specify which statutory provision [was] allegedly violated [ ].” See Def.’s
Mem. at 4 n.1. Indeed, the plaintiff only alleges that its leases were terminated “in violation of
law.” See Compl. ¶ 3. And the plaintiff’s opposition merely asserts that “[n]o official has the
power to do [what was allegedly done] without being subject to judicial review.” Pl.’s Opp’n at
11. Accordingly, the plaintiff’s reference to the Larson-Dugan exception is unavailing.
Although the plaintiff’s Complaint does not reference it, the Secretary asserts that “the
only way [the plaintiff] can establish subject matter jurisdiction in this case is through [an
9
alleged violation of] the Administrative Procedure Act [(‘APA’).]” Def.’s Mem. at 12. The
Secretary is correct. In “[t]he absence of an express sovereign immunity waiver,” Mackinac
Tribe v. Jewell, 87 F. Supp. 3d 127, 141 (D.D.C. 2015), aff’d, 829 F.3d 754 (D.C. Cir. 2016), the
plaintiff “must look beyond the jurisdictional statute for a waiver of sovereign immunity with
respect to [its] claim[,]” United States v. Mitchell, 445 U.S. 535, 538 (1980). The APA
“eliminated the sovereign immunity defense in virtually all actions for non-monetary relief
against a U.S. agency or officer acting in an official capacity.” See Clark v. Libr. of Cong., 750
F.2d 89, 102 (D.C. Cir. 1984). “The APA expressly and unequivocally provides that, where a
plaintiff alleges that ‘an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority,’ the case ‘shall not be dismissed nor relief
therein be denied on the ground that it is against the United States[.]’” Mackinac Tribe, 87
F. Supp. 3d at 142 (quoting 5 U.S.C. § 702).
While the plaintiff fails to reference the APA in its Complaint, “a suit need not have been
brought pursuant to the APA in order to receive the benefit of that statute’s sovereign immunity
waiver; indeed, the ‘APA's waiver of sovereign immunity applies to any suit whether under the
APA or not.’” Z St., Inc., 44 F.Supp.3d at 64. Furthermore, “[p]leadings must be construed so
as to do justice.” Fed. R. Civ. P. 8(e). With this perspective, although neither § 1331 nor the
Declaratory Judgment Act alone confer a waiver of sovereign immunity, the Court will consider
the Secretary’s motion to dismiss based on the assumption that the plaintiff’s claim relies on the
APA to establish a waiver of sovereign immunity. Accordingly, the Court has subject matter
jurisdiction under Rule 12(b)(1). 5
5
Before proceeding to its Rule 12(b)(6) analysis, the Court will address the Secretary’s argument that “the APA
does not provide a basis for jurisdiction because [the plaintiff] has failed to identify the existence of any final agency
action.” Def.’s Mem. at 13. This assertion is included within the Secretary’s Rule 12(b)(1) arguments. See id. at
(continued . . .)
10
B. Rule 12(b)(6)
Having concluded that it has jurisdiction to consider the plaintiff’s allegations, the Court
turns to the Secretary’s argument that the plaintiff has failed to adequately state a claim under
Rule 12(b)(6). Because, as the Court noted previously, the plaintiff does not actually allege the
violation of a particular statutory provision or legal obligation, the Court will again consider the
Secretary’s motion to dismiss based on the assumption that the plaintiff’s claim relies on the
APA. 6 The Secretary contends that this case should be dismissed because the Secretary “took no
final agency action with respect to the Leases, and the Leases have automatically expired by their
own terms.” Def.’s Mem. at 3. In response, the plaintiff argues that the Ming and Barminski
Letters demonstrate that the Secretary took final agency action that caused the termination of the
plaintiff’s fractional lease interest. See Pl.’s Opp’n at 9. The Court agrees with the Secretary
that the plaintiff has failed to adequately allege final agency action.
(. . . continued)
10–17. Furthermore, the Secretary ultimately posits that the plaintiff’s purported failure to allege a final agency
action not only “[f]ails to [s]tate [a]n [APA] claim,” id. at 12, but also creates “the absence of any waiver of
sovereign immunity for the federal government[,]” id. at 17. However, the Secretary misconstrues the nature of the
APA’s waiver of sovereign immunity.
The District of Columbia Circuit has “previously, and repeatedly, rejected the [Department’s] [ ] argument.”
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 186 (D.C. Cir. 2006). Cases where, as here, “judicial review is
sought under the APA rather than a particular statute prescribing judicial review, the requirement of final agency
action is not jurisdictional.” Id. at 184 (quoting Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety
Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003)); see also Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261,
1267 (D.C. Cir. 2018) (“[T]he requirement of finality is not jurisdictional . . . .”). Thus, the Secretary’s final agency
action argument is properly considered under Rule 12(b)(6). See Stone v. U.S. Embassy Tokyo, Civ. Action No. 19-
3273 (RC), 2020 WL 4260711, at *4 (D.D.C. July 24, 2020) (“Although the court does not lose jurisdiction solely
because a claim under the APA lacks final agency action, the claim might not survive a motion to dismiss.” (citing
John Doe, Inc. v. Drug Enf’t Agency, 484 F.3d 561, 565 (D.C. Cir. 2007))). Accordingly, the Secretary’s final
agency action argument is only available under Rule 12(b)(6).
6
The parties’ submissions, considered collectively, support this conclusion. See Def.’s Mem. at 12; Pl.’s Opp’n at
8–9; Def.’s Reply at 3; see also . Furthermore, the APA permits review of a final agency action “for which there is
no other adequate remedy in a court [.]” Id. § 704. Indeed, alleging final agency action is required for a suit of the
nature that the plaintiff describes. Cf. Mackinac Tribe, 87 F. Supp. 3d at 145 (D.D.C. 2015) (evaluating whether the
plaintiff in that case exhausted administrative remedies after concluding that the APA independently provided the
requisite waiver of sovereign immunity).
11
The plaintiff asserts that the Secretary “directed the suspension of [the] Leases” in 2001
and “the termination of [the plaintiff’s] lease rights in August of 2013 by misinterpreting the”
Northern District of California’s July 2013 Order. Id. at 9. The plaintiff also argues that the
Ming Letter “explicitly invites a new request for suspension of production, albeit one that could
not be acted upon without [the Secretary] violating the then[-]extant 2001 Order,” and the
Barminski Letter constituted the Secretary’s “decision that [the plaintiff’s] lease was over . . . .”
Id. at 10. In short, the plaintiff posits that “what [the Secretary] did here was to prematurely
terminate the right of a lessee whose property interest derived from the statutes governing
production of hydrocarbons from Federal offshore lands.” Id. at 11.
“It is well established that ‘a court may not review a non-final agency action.’” Farrell v.
Tillerson, 315 F. Supp. 3d 47, 59 (D.D.C. 2018) (Walton, J.) (quoting Conservation Force v.
Salazar, 919 F. Supp. 2d 85, 89 (D.D.C. 2013)). Indeed, “[t]he APA . . . only provides a right to
judicial review of ‘final agency action for which there is no other adequate remedy in a court.’”
Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012) (emphasis in
original omitted) (quoting 5 U.S.C. § 704). “An agency action is final if it ‘[(]1) marks the
consummation of the agency’s decision making process’ and [(]2) affects the ‘rights or
obligations . . . [or the] legal consequences’ of the party seeking review.” Conservation Force,
919 F. Supp. 2d at 89 (omission and third alteration in original) (quoting Bennett v. Spear, 520
U.S. 154, 177–78, (1997)). “[T]he finality requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete
injury[.]” Darby v. Cisneros, 509 U.S. 137, 144 (1993) (alteration in original) (quoting
Williamson Cty. Regul. Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193
(1985)). “Agency action is considered final to the extent that it imposes an obligation, denies a
12
right, or fixes some legal relationship.” Reliable Automatic Sprinkler Co., Inc. v. Consumer
Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003) (citing Role Models Am., Inc. v.
White, 317 F.3d 327, 331–32 (D.C. Cir. 2003)).
The plaintiff identifies two concrete actions by the Secretary that it claims constitute final
agency action: the Ming Letter and the Barminski Letter. See Pl.’s Opp’n at 9. According to the
plaintiff, the Ming Letter confirmed that the Leases had not expired but expressed the Secretary’s
intent to seek the lifting of the suspensions, which would result in the expiration of the leases “in
accordance with 30 C.F.R. 250.180[,]” id. at 5, and the Barminski Letter “determine[d],
erroneously, that the [Northern District of California] had ended the plaintiff’s lease[,]” id. at 10.
Thus, the plaintiff posits, the Secretary’s “decision that [the plaintiff]’s lease was over is as final
as agency action can get.” Id. The Court disagrees and must conclude that neither the Ming
Letter nor the Barminski Letter constitute final agency action within the meaning of the APA.
1. The Ming Letter
The Court agrees with the Secretary that the plaintiff has failed to demonstrate that the
Ming Letter constitutes final agency action. See Def.’s Reply at 3–6. As the Court previously
explained, the Ming Letter states “that the [L]eases ‘[had] not been relinquished nor ha[d] they
expired due to the continued court-ordered directed suspensions on those lease[s,]’” Compl. ¶ 24;
see also Pl.’s Opp’n, Ex. 4 (Ming Letter), at 1–2, and “that the Department ‘[would] request
permission to lift the court-ordered directed suspensions[,]” Compl. ¶ 24. The letter also
“not[ed] that ‘[the plaintiff’s] leases [were] not in the primary term, no production or operations
ha[d] occurred on [the plaintiff’s] leases for more than 180 days, and there [was] not a
suspension request for these leases upon which [the Department] may act.’” Id. (alteration in
original).
13
First, the Ming Letter is not the “‘consummation’ of the agency's decisionmaking
process.” See Bennett, 520 U.S. at 178 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S.
Corp., 333 U.S. 103, 113 (1948)). Unlike a letter that might note the agency position that the
plaintiff “had no statutory right[,]” Ciba-Geigy Corp. v. U.S. Env’t Prot. Agency, 801 F.2d 430,
437 (D.C. Cir. 1986), or express an “indication that [its position was] subject to further agency
consideration or possible modification,” Holistic Candlers, 664 F.3d at 945 (quoting Ciba-Geigy
Corp., 801 F.2d at 437), the Ming Letter merely conveys information and further administrative
avenues for the plaintiff to explore, see Pl.’s Opp’n, Ex. 4 (Ming Letter) at 1–2 (suggesting that
the Leases would not expire if there was “a suspension request for [the Leases] upon which [the
Department] may act”); cf. Soundboard Ass’n, 888 F.3d 1261, 1268. Indeed, the plaintiff
acknowledges this interpretation of the letter. See Pl.’s Opp’n at 10 (stating that the Department
“explicitly invite[d] a new request for suspension of production” in the Ming Letter).
Second, the Ming Letter does not determine rights or obligations. See Bennett, 520 U.S.
at 178. Like the routine explanatory letters that federal agencies issue regularly, “[t]he Letter
neither announced a new interpretation of [any] regulations nor effected a change in [any]
regulations themselves. Indep. Equip. Dealers Ass’n v. Env’t Prot. Agency, 372 F.3d 420, 427
(D.C. Cir. 2004). Instead, “[t]he Letter was purely informational in nature; it imposed no
obligations and denied no relief.” Id.; see also Rhea Lana, Inc. v. Dep’t of Lab., 824 F.3d 1023,
1028 (D.C. Cir. 2016) (holding that an agency letter to a plaintiff “restating” a “longstanding
view” is unreviewable). Indeed, the Ming Letter merely recites the applicable law governing the
regulated party, see Pl.’s Opp’n, Ex. 4 (Ming Letter), at 2 (stating that “[i]f the [United States]
District Court [for the Southern District of California] concurs with this request,” the Department
““will lift the directed suspensions and [the Leases] will immediately expire in accordance with
14
30 C.F.R. 250.180, because” (1) the Leases “are not in the primary term,” (2) “no production or
operations have occurred on [the L]eases for more than 180 days,” and (3) “there is not a
suspension request for these leases upon which [the Department] may act).
Finally, the Ming Letter is not an action “from which ‘legal consequences will flow[.]’”
Bennett, 520 U.S. at 178 (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 71 (1970). Normally, “agency orders ‘that do[] not [themselves]
adversely affect [a] complainant but only affect[] his[, her, or its] rights adversely on the
contingency of future administrative action’” are not final and, therefore, unreviewable. See
Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C. Cir. 2006)
(alterations in original) (quoting DRG Funding Corp. v. Secy’ of Hous. & Urb. Dev., 76 F.3d
1212, 1214 (D.C. Cir. 1996)); see also Cmty. Fin. Servs. Ass’n of Am. v. Fed. Deposit Ins.
Corp., 132 F. Supp. 3d 98, 121 (D.C. Cir. 2015) (finding unreviewable guidance documents that
did not “commit the [Department] to a particular course of action”). But see Rhea Lana, Inc.,
824 F.3d at 1029–30 (making an exception for an agency letter that, by regulation, had the effect
of satisfying a specialized intent requirement for the purpose of imposing civil penalties). Here,
the plaintiff acknowledges that the Secretary could not terminate the plaintiff’s interest in the
Leases without the future administrative action of filing a motion to lift the Northern District of
California’s suspension order. See Pl.’s Opp’n at 9 (noting that the Northern District of
California “direct[ed] that [the Department] decree a ‘time-out’ of all activities on the [Leases]”).
Therefore, no legal consequences may flow from the Ming Letter itself.
Accordingly, because the Ming Letter neither represents the “‘consummation’ of the
agency’s decisionmaking process[,]” Bennett, 520 U.S. at 178 (quoting Chi. & S. Air Lines, Inc.,
15
333 U.S. at 113); determines any rights or obligations, see id.; nor results in any legal
consequences, see id.; it is not a final agency action for purposes of judicial review.
2. The Barminski Letter
For the same reasons applicable to the Ming Letter, the Court similarly agrees with the
Secretary that the plaintiff has failed to allege that the Barminski Letter constitutes final agency
action. As the Court previously explained, the Barminski Letter states that, “[a]s a consequence
of the [Northern District of California’s July 13, 2013] order, [the plaintiff’s] lease [ ] expired,
effective July 23, 2013.” Compl., Ex. A (Barminski Letter) at 1–2. Although the Barminski
Letter notes a legal result, that result flows, not from the letter, but from the Northern District of
California’s July 2013 Order. 7 Thus, the Barminski Letter is merely advisory: it conveys
information and is not independently consequential.
7
The plaintiff argues that the Secretary “misinterpret[ed]” the Northern District of California’s July 2013 order and
itself “directed the termination of [the plaintiff’s] lease rights[.]” Pl.’s Opp’n at 9. However, the Northern District
of California’s July 2013 order is clear: “The lease suspensions ordered by this Court in its order of June 20, 2001,
150 F. Supp. 2d 1046, 1057–58 (N.D. Cal. 2001) are hereby LIFTED,” Jewell, No. 4:99-cv-04964-CW (N.D. Cal.
July 23, 2013) (order lifting directed suspensions) (emphasis added). Even if the Northern District of California
meant something else by its order, “[this Court] is unable to grant declaratory relief voiding prior district court
orders.” McNeil v. Harvey, No. 19-5127, 2020 U.S. App. LEXIS 8427, at *4 (D.C. Cir. 2020) (per curiam) (citing
Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)) (“[I]t is for the court of first instance to determine the question
of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher
court, its orders based on its decision are to be respected.”); see also Sibley v. Roberts, 224 F. Supp. 3d 29, 38
(D.D.C. 2016); cf. Am. Tel. & Tel. Co. v. Equal Emp. Opportunity Comm’n, 270 F.3d 973, 975 (D.C. Cir. 2001)
(“[T]here clearly would be final agency action if the [agency] filed a lawsuit against” the plaintiff, but “[o]f course,
the [plaintiff] could not challenge that decision as final agency action under the APA; it would instead simply
defend itself against the suit.”).
The plaintiff also claims that it was not “served with notice of any application to lift the directed suspension
contained in the Northern District of California’s 2001 Order.” Pl.’s Opp’n at 11. However, as the Secretary
explains:
whether [the plaintiff] was properly “served” with the August 2013 letter in the [Northern District
of California] litigation is irrelevant to the issue at hand—i.e., whether DOI’s August 2013
correspondence constitutes final agency action. . . . [And, the plaintiff’s] argument is puzzling in
light of [its] admission that it had received [the Ming L]etter but took no corresponding action as it
pursued damages elsewhere.
Def.’s Reply at 5–6 (citing Compl. ¶ 24).
16
Therefore, as even more akin than the Ming Letter to the type of “advice letter that
agencies prepare countless times per year[,]” Indep. Equip. Dealers Ass’n, 372 F.3d at 427, the
Barminski Letter, like the Ming Letter, does not constitute final agency action. “Absent facts
sufficient to allege a final agency action, a complaint will be dismissed for failure to state a
claim.” Perry v. U.S. Dep’t of Educ., Civ. Action No. 20-2003 (JEB), 2021 WL 289358, at *2
(D.D.C. Jan. 28, 2021). Accordingly, because the plaintiff has not identified any final agency
action sufficient to state its claim, the Court must grant the Secretary’s motion to dismiss
pursuant to Rule 12(b)(6).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant the Secretary’s motion
to dismiss.8
SO ORDERED this 21st day of December, 2021. 9
REGGIE B. WALTON
United States District Judge
8
Having concluded that the plaintiff fails to adequately demonstrate any final agency action, the Court need not
address the Secretary’s argument that this case ought to otherwise be dismissed under Rule 12(b)(6) because it
constitutes an impermissible collateral attack on the judgments issued by the Northern District of California. See
Def.’s Mem. at 17.
9
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
17