Arch Coal, Inc. v. R. Alexander Acosta

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2018 Decided April 27, 2018

No. 17-5074

ARCH COAL, INC.,

APPELLANT

v.

R. ALEXANDER ACOSTA, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF LABOR AND DEPARTMENT OF LABOR,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00669)

Mark E. Solomons argued the cause and filed the briefs for

appellant. With him on the briefs was Laura Metcoff Klaus.

Daniel J. Aguilar, Attorney, U.S. Department of Justice,

argued the cause for federal appellees. With him on the brief

were Jessie K. Liu, U.S. Attorney, and Mark B. Stern, Attorney.

Before: MILLETT and WILKINS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: Arch Coal, Inc. (“Arch”)

appeals from an order of the District Court dismissing its

complaint for want of jurisdiction. Arch’s complaint seeks an

injunction and declaratory relief to block the Department of

Labor (“Department”) from pursuing administrative actions to

determine whether the company is obligated to pay benefits to

certain of its former employees under the Black Lung Benefits

Act (“BLBA” or “Act”), 30 U.S.C. §§ 901–45 (2012). The

District Court dismissed the complaint on the ground that the

BLBA “assigns exclusive jurisdiction” over Arch’s challenges

“to the Department’s administrative process and then the

relevant federal court of appeals.” Arch Coal, Inc. v. Hugler,

242 F. Supp. 3d 13, 18 (D.D.C. 2017). We agree and therefore

affirm the judgment of the District Court.

The BLBA grants coal miners the right to monthly benefits

payments from a former employer in the event they suffer from

black lung disease as a result of employment. The Department

sends a “notice of claim” to coal mine operators who are

potentially liable for benefits payments under the Act. See 33

U.S.C. § 919(b) (2012) (incorporated by 30 U.S.C. § 932(a));

20 C.F.R. § 725.407 (2017). A potentially responsible operator

may contest its liability before a District Director within the

agency, 20 C.F.R. § 725.408 (2017), request a formal hearing

before an administrative law judge (“ALJ”), id. §§ 725.419(a),

725.450–725.480, and receive review of the ALJ’s decision

before the Benefits Review Board (“Board”), 33 U.S.C.

§ 921(b)(3) (2012) (incorporated by 30 U.S.C. § 932(a)); 20

C.F.R. § 725.481 (2017). Final orders of the Board may then

be appealed to a U.S. court of appeals. 33 U.S.C. § 921(c).

On November 12, 2015, the Department issued a bulletin

to its staff, Bulletin No. 16-01 (“Bulletin”), instructing District

Directors to send notices of claims to Arch for certain black

lung benefits claims filed against a company that had acquired

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Arch’s BLBA liabilities. Arch then brought this action in the

District Court seeking to enjoin the administrative proceedings.

Arch alleged that it was not liable for the payments under the

BLBA and that the Bulletin violated the Administrative

Procedure Act (“APA”) as a legislative “rule” published

without notice and comment. The District Court concluded that

it lacked subject matter jurisdiction over these claims.

The BLBA’s comprehensive scheme of administrative

review, followed by judicial review in a court of appeals,

makes it clear that Congress implicitly precluded district court

jurisdiction over the claims to which the BLBA applies. See,

e.g., Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012); Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 207–09 (1994); Jarkesy

v. SEC, 803 F.3d 9, 16–17 (D.C. Cir. 2015). We therefore agree

with our sister circuits that “the scheme of review established

by Congress for determinations of black lung disability benefits

was intended to be exclusive.” Compensation Dep’t of Dist.

Five, United Mine Workers of Am. v. Marshall, 667 F.2d 336,

340 (3d Cir. 1981); see also Louisville & Nashville R.R. Co. v.

Donovan, 713 F.2d 1243 (6th Cir. 1983). Accordingly, Arch

must exhaust its administrative remedies and secure a final

order from the Board before it may seek review from this court.

I. BACKGROUND

A. Statutory and Regulatory Background

The BLBA imposes liability on coal mine operators for

payment of monthly benefits to coal miners who contract

pneumoconiosis, or black lung disease, from their employment

in the mines. See 30 U.S.C. §§ 922(a), 932(c). In order for an

operator to be held liable, it must have employed the miner for

at least one year and be “capable of assuming its liability for a

claim.” 20 C.F.R. § 725.494(c), (e) (2017). If the operator that

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most recently employed the miner is not liable, the miner’s next

most recent employing operator may be found responsible. Id.

§ 725.495(a)(3).

Congress created a comprehensive administrative scheme

to adjudicate benefits claims under the Act. See 30 U.S.C.

§ 932(a) (incorporating the procedures outlined in the

Longshore and Harbor Workers’ Compensation Act into the

BLBA). The process begins when a disabled coal miner or a

surviving dependent of a miner who died of black lung disease

files a claim with the District Director in the Department of

Labor’s Office of Workers’ Compensation Programs. See 20

C.F.R. §§ 725.303, 401 (2017). The District Director

investigates the claim to determine whether the claimant is

eligible for benefits and which employer, if any, is potentially

responsible under the BLBA. See id. §§ 725.401–423. If the

claimant is eligible for BLBA benefits but a potentially liable

operator cannot be identified, the benefits are paid from the

federally administered Black Lung Disability Trust Fund,

which is financed by a tax on coal. See 30 U.S.C. § 934; 26

U.S.C. § 9501(d)(1)(B) (2012). But if the District Director

identifies a potentially liable operator, the District Director

sends that operator a “notice of claim.” See 33 U.S.C. § 919(b)

(incorporated by 30 U.S.C. § 932(a)); 20 C.F.R. § 725.407(b).

Once the operator receives a notice of claim, it becomes a

party to the administrative proceedings. See 20 C.F.R.

§ 725.407(b). The operator may then contest its identification

as a potentially liable operator before the District Director, id.

§ 725.408(a)(1)–(2), and submit documentary evidence in

support of its position, id. § 725.408(b)(1). The District

Director may conduct an informal conference with the parties,

at which the parties have the right to representation. Id.

§ 725.416. The District Director may also “permit a reasonable

time for the submission of additional evidence following a

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conference.” Id. § 725.417(b). “Within 20 days after the

termination of all conference proceedings, the district director

shall prepare and send to the parties a proposed decision and

order” designating the responsible operator liable for the

payment of benefits. Id. § 725.417(c). That document “must

contain findings of fact and conclusions of law” in support of

any designation of a responsible operator. Id. § 725.418(b).

Either party may appeal the District Director’s decision and

request a formal hearing before an ALJ within thirty days. Id.

§§ 725.419(d), 725.450–725.480 (detailing hearing procedures

before the ALJ); 33 U.S.C. § 919(d). The ALJ must make a de

novo determination of the operator’s liability after a “fair

hearing” in which the parties and witnesses may testify; and the

ALJ “may entertain the objections of any party to the evidence

submitted.” 20 C.F.R. § 725.455(a)–(c) (2017). The ALJ’s

decision may be appealed to the Board, which is “authorized to

hear and determine appeals raising a substantial question of law

or fact.” 33 U.S.C. § 921(b)(3); 20 C.F.R. § 725.481. Once the

Board issues a final decision, an aggrieved party may obtain

judicial review of the “final order . . . in the United States court

of appeals for the circuit in which the injury occurred.” 33

U.S.C. § 921(c); see also 20 C.F.R. § 725.482 (2017).

B. Factual and Procedural History

Arch is a coal mining company that was formed in 1997.

The following year, Arch received the Department’s

authorization to self-insure against future BLBA liabilities. On

December 31, 2005, Arch sold three of its subsidiary coal

mining companies to Magnum Coal Company (“Magnum”).

Arch alleges that as part of that sale, Magnum agreed to assume

the BLBA liabilities of the three purchased subsidiary

companies. In 2008, Magnum was acquired by Patriot Coal

(“Patriot”).

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Patriot declared bankruptcy in May 2015. The bankruptcy

court approved the sale of Patriot’s coal-mining operations,

including Arch’s three former subsidiaries, to other companies.

That sale did not transfer Patriot’s liability for BLBA claims.

In response to Patriot’s bankruptcy, the Department’s

Office of Workers’ Compensation Programs issued Bulletin

No. 16-01 to its staff. See U.S. Dep’t of Labor, BLBA Bulletin

No. 16-01 (Nov. 12, 2015), available at

https://www.dol.gov/owcp/dcmwc/blba/indexes/BL16.01OC

R.pdf. The Bulletin’s purpose was “[t]o provide guidance for

district office staff in adjudicating claims in which the miner’s

last coal-mine employment of at least one year was with one of

the 50 subsidiary companies that have been affected by the

Patriot Coal Corporation bankruptcy.” Id. at 1. With respect to

newly filed claims against the former Arch subsidiaries, the

Bulletin instructs staff to “[d]etermine whether the claim is

covered by Arch Coal’s self-insurance or an Arch Coal

commercial insurance policy.” Id. at 3. “If commercial

coverage can be identified,” notice of the claim must be sent

“to the appropriate carrier.” Id. Where “no commercial

insurance can be identified, and the miner’s employment falls

within a period of Arch Coal’s self-insurance,” which

“generally requires that the miner last worked for the

subsidiary before January 1, 2006,” notice of the claim must be

sent to Arch Coal. See id.

Following distribution of the Bulletin, District Directors

sent Arch notices of claims. The notices reflect the

Department’s initial determination that Arch is potentially

liable for the claims of miners who worked for Arch during its

period of self-insurance. In April 2016, Arch filed this action

in District Court, seeking declaratory relief and an injunction

barring the Department from sending Arch notices of claims

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pursuant to the Bulletin, Compl. 22 ¶ 97, and from “imposing

on Arch Coal, Patriot’s liability for the black lung claims,” id.

at 18 ¶ 72. The Complaint alleges that the Bulletin was a

substantive “rule” and, as such, it should have been subject to

notice and comment under 5 U.S.C. § 553 of the APA and it

could not be retroactive. Compl. 16–19 ¶¶ 60–79. The

Complaint additionally alleges that the Bulletin violates the

BLBA and its implementing regulations by imposing liability

on “a pass-through owner,” and by not first “apply[ing]

Patriot’s self-insurance” assets to the claims. Id. at 20–22 ¶¶

80–97.

The Department moved to dismiss the Complaint under

Federal Rule of Civil Procedure 12(b)(1) and (6), for lack of

subject matter jurisdiction and for failing to state a claim upon

which relief could be granted. On March 16, 2017, the District

Court granted the motion to dismiss for lack of jurisdiction,

holding that the BLBA “assigns exclusive jurisdiction” over

Arch’s challenges “to the Department’s administrative process

and then the relevant federal court of appeals.” Arch Coal, 242

F. Supp. 3d at 18–19. Arch then filed an appeal with this court.

II. ANALYSIS

A. Standard of Review

“We review de novo a dismissal for lack of subject matter

jurisdiction.” United States ex rel. Oliver v. Philip Morris USA

Inc., 826 F.3d 466, 471 (D.C. Cir. 2016). In so doing, we “must

accept the factual allegations in the complaint as true.” Sturm,

Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002).

B. Jurisdiction

As we explained in Jarkesy:

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Litigants generally may seek review of agency action

in district court under any applicable jurisdictional

grant.

If a special statutory review scheme exists,

however, it is ordinarily supposed that Congress

intended that procedure to be the exclusive means of

obtaining judicial review in those cases to which it

applies. . . .

Our analysis proceeds in accordance with the

two-part approach set forth in Thunder Basin Coal

Co. v. Reich. Under Thunder Basin’s framework,

courts determine that Congress intended that a

litigant proceed exclusively through a statutory

scheme of administrative and judicial review when

(i) such intent is fairly discernible in the statutory

scheme, and (ii) the litigant’s claims are of the type

Congress intended to be reviewed within [the]

statutory structure.

803 F.3d at 15 (citations and internal quotation marks omitted).

In this case, both considerations support our judgment that

Congress intended the BLBA’s statutory scheme to be

exclusive with respect to the claims to which the statute

applies.

1. Exclusivity of the Statutory Scheme

The “fairly discernible” test is easily satisfied in this case.

The terms of the BLBA make it clear that Congress intended

mine operators to contest their liability for benefits payments

exclusively through the statutory review scheme. “Generally,

when Congress creates procedures designed to permit agency

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expertise to be brought to bear on particular problems, those

procedures are to be exclusive.” Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 561 U.S. 477, 489 (2010) (citation

and internal quotation marks omitted). As described above, the

BLBA establishes exactly such a detailed and comprehensive

process for adjudicating black lung benefits claims. See 33

U.S.C. §§ 919, 921.

In all relevant respects, the BLBA resembles other

statutory schemes held to preclude district court jurisdiction. In

Thunder Basin, a coal company sought injunctive relief in

district court for alleged statutory and constitutional violations

emanating from an anticipated enforcement proceeding under

the Federal Mine Safety and Health Amendments Act of 1977

(“Mine Act”). 510 U.S. at 204–05. Under the Mine Act’s

scheme, a party sanctioned by the Mine Safety and Health

Administration may bring a challenge before an ALJ, appeal

the ALJ’s decision to a Commission within the agency, and

appeal the Commission’s final order to a court of appeals. Id.

at 207–08. “The [Mine] Act expressly authorizes district court

jurisdiction in only two provisions,” which allow the agency to

seek enforcement orders in court. Id. at 209. Mine operators

have no “corresponding right” to district court jurisdiction. Id.

The Supreme Court concluded that the detailed statutory

scheme “demonstrate[d] that Congress intended to preclude

[the plaintiff’s] challenges.” Id. at 208; see also Elgin, 567 U.S.

at 5–6 (holding that the Civil Service Reform Act’s scheme for

reviewing personnel actions – involving a hearing before the

agency, review by a board within the agency, and appeal to the

Federal Circuit – was exclusive of district court jurisdiction);

Jarkesy, 803 F.3d at 16 (involving similar judicial review

provisions under the Securities Exchange Act and holding that

they indicated exclusivity); Sturm, Ruger & Co., 300 F.3d at

871–73 (holding the same with respect to the Occupational

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Safety and Health Act’s scheme of administrative and judicial

review).

The BLBA cannot be distinguished from the foregoing

statutory schemes. Under the BLBA, mine operators may

challenge adverse liability decisions before an ALJ and obtain

review of the ALJ’s decision by a Board established by the Act

within the agency for that purpose. Only after the Board has

issued a final order may an adversely affected party obtain

judicial review, and that review is available only in a U.S. court

of appeals. See 33 U.S.C. § 921(c). Moreover, the BLBA, like

the Mine Act, expressly authorizes district court jurisdiction in

only two narrow circumstances, each involving enforcement of

compensation orders. See 33 U.S.C. § 921(d) (allowing a

successful claimant or the deputy commissioner making the

order to bring an action in district court to enforce an award of

disability benefits); 30 U.S.C. § 934(b)(4)(A) (allowing the

Secretary to sue in district court to enforce a lien against an

operator who fails to make payments to the Black Lung

Disability Trust Fund). By its terms, the BLBA’s “special

statutory review scheme” leaves no role for district court

review of the Department’s run-of-the-mill black lung benefits

determinations. Therefore, mine operators seeking to contest

their liability for black lung benefits claims must exhaust the

administrative remedies provided in the statute before seeking

review in a U.S. court of appeals.

2. Arch’s Claims Are of the Type that Congress Intended

to Be Reviewed Within the BLBA Statutory Structure

Arch argues that even if the BLBA is exclusive with respect

to claims that fall within its compass, the claims at issue in this

case are not of the type that Congress intended to be reviewed

within the BLBA’s statutory structure. We disagree.

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A claim will be found to fall outside of the scope of a

special statutory scheme in only limited circumstances, when

(1) a finding of preclusion might foreclose all meaningful

judicial review; (2) the claim is wholly collateral to the

statutory review provisions; and (3) the claims are beyond the

expertise of the agency. Free Enter., 561 U.S. at 489; Thunder

Basin, 510 U.S. at 212–13. These exceptions are not applied

pursuant to any “strict mathematical formula.” Jarkesy, 803

F.3d at 17. Rather, the exceptions reflect “general guideposts

useful for channeling the inquiry into whether the particular

claims at issue fall outside an overarching congressional

design.” Id.

In its complaint, Arch attempted to fit its claims within an

exception to the Thunder Basin rule, arguing that it should not

be forced to defend the compensation claims at issue because,

for a number of reasons, it is not liable for them as a matter of

law under the BLBA. This argument obviously fails because

operator challenges to potential liability under the BLBA are

quintessentially the type of claims that are within the exclusive

compass of the BLBA’s statutory scheme. They fall squarely

within the Department’s authority and expertise to assess

liability for benefits payments under the BLBA. Indeed, benefit

liability disputes “arise from actions [taken by the Department]

in the course of” the administrative enforcement scheme,

Jarkesy, 803 F.3d at 23, and meaningful judicial review is

available in the courts of appeals, see 33 U.S.C. § 921(c).

On appeal, Arch argues that the disputed Bulletin is a

substantive “rule” that was issued without required procedures

and with impermissible retroactive effects. Therefore, Arch

maintains that its claims may be heard in the District Court

pursuant to National Mining Association v. Department of

Labor, 292 F.3d 849 (D.C. Cir. 2002) (per curiam). In that

decision, the court held that the District Court had jurisdiction

12

over a challenge to regulations issued pursuant to notice-and-

comment rule making by the Secretary of Labor under the

BLBA. Nat’l Mining, 292 F.3d at 858–59. The decision in

National Mining is plainly inapposite.

National Mining distinguished the claims before it from

those at issue in two circuit court decisions, both of which had

held that the BLBA’s statutory review scheme precluded

district court jurisdiction. See Louisville & Nashville R.R., 713

F.2d at 1244 (remanding with instructions to vacate District

Court’s award of injunction preventing Secretary from

extending coverage of the BLBA to railroad employees on the

basis of Department’s guidelines); Compensation Dep’t, 667

F.2d at 340 (holding District Court lacked jurisdiction over

claim that Department’s policy for reviewing claimants’ X-ray

evidence violated the BLBA). The National Mining court

explained that the plaintiffs in the two cited cases did not

challenge “a formal regulation, as is true in our case,” but had

instead attempted “to short-circuit the administrative process

by challenging a Department enforcement position in a district

court.” Nat’l Mining, 292 F.3d at 858; see also id. at 857 (“It is

important to note that [Thunder Basin] did not involve a

regulation.”). By contrast, the plaintiffs in National Mining

brought “a direct attack on the validity of a formal regulation,

issued pursuant to notice-and-comment rulemaking.” Sturm,

Ruger & Co., 300 F.3d at 875 (citation and internal quotation

marks omitted).

If anything, the decision in National Mining clearly

supports our judgment in this case. For example, the court

pointed out that in a case of the sort that Arch seeks to pursue

here, “there [is] no reason to believe that [the operator’s] legal

position, if correct, could not be fully remedied through review

in the Court of Appeals.” Nat’l Mining, 292 F.3d at 858.

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The simple point here is that Arch’s challenges to the

Bulletin are the exact sort of claims that National Mining took

pains to distinguish from its holding. Arch requests district

court relief that would circumvent the statutory scheme based

on objections to an enforcement policy, not a legislative “rule.”

See 5 U.S.C. § 551(4) (2012). Unlike the “rule” that fell outside

the BLBA’s administrative scheme in National Mining, the

disputed Bulletin in this case does not “alter the rights or

interests of parties, although it may alter the manner in which

the parties present themselves or their viewpoints to the

agency.” James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d

277, 280 (D.C. Cir. 2000) (quoting JEM Broad. Co. v. FCC, 22

F.3d 320, 326 (D.C. Cir. 1994)) (describing “rules of agency

organization, procedure, or practice,” 5 U.S.C. § 553(b)(3)(A)

(2012), which are exempt from notice-and-comment rule

making requirements). To the contrary, the Bulletin does not

impose any liability on Arch under the BLBA or dispose of any

benefits claim on the merits. It only requires District Directors

to initiate proceedings concerning Arch’s potential

responsibility for BLBA claims related to Patriot.

It is well understood that the notice-and-comment

provisions of section 553 of the APA do not apply to agency

bulletins, policy statements, directives, guidances, opinion

letters, press releases, advisories, warnings, or manuals that do

not have the force of law. See EDWARDS & ELLIOTT, FEDERAL

STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT

DECISIONS AND AGENCY ACTIONS 196–97 (3d ed. 2018).

Indeed, such actions normally are not subject to judicial review

unless the agency relies on the policy to support an agency

action in a particular case. Id. at 198–99.

All of the matters with respect to which Arch complains are

related to actions that the Department has taken pursuant to the

BLBA’s statutory scheme. Therefore, Arch is required to

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exhaust its administrative remedies and secure a final order

from the Board before it may seek review from this court.

Arch’s challenge to the Bulletin in the District Court surely was

not “wholly collateral” to the BLBA’s review scheme. Rather,

the suit in District Court was an attempt by Arch to jump the

gun and make an end run around the BLBA’s statutory scheme.

See Sturm, Ruger & Co., 300 F.3d at 876 (“Indeed, the

company is attempting to end the [statutory review] process

altogether: its complaint seeks an injunction . . . that would

terminate the [currently pending] proceeding.”).

Arch’s counsel conceded at oral argument before this court

that the company will be able to raise its objections to the

Bulletin and any enforcement actions taken against it during

the course of the administrative process. See Oral Arg.

Recording 9:29–10:13. Counsel also acknowledged that the

company may appeal to a court of appeals to contest any

adverse final order issued by the Board. Id. In fact, while this

appeal was pending, Arch raised its primary objections in

ongoing administrative proceedings before the Department.

See Creech v. Apogee Coal Co., Case No. 2016-BLA-06034,

Arch Coal’s Mot. for Summ. Decision on Responsible Party

Issue (Oct. 2, 2017), at 5. Arch would prefer to follow a

different course in challenging the Department’s pursuit of

enforcement claims, i.e., by seeking injunctive and declaratory

relief in the District Court. It has no such option under the law,

however.

Arch maintains that judicial review will not be meaningful

because the Department will not afford it adequate discovery

to develop its claims during the administrative proceedings.

This argument is premature. Arch is entitled to reasonable

discovery before the Department to the full extent allowed by

the BLBA and its implementing regulations. See 29 C.F.R.

§§ 18.10(a), 18.51(a) (2017). A mine operator may introduce

15

“evidence relevant to [its] liability” in the BLBA proceedings,

20 C.F.R. § 725.410(b); see also id. §§ 725.411–17, 725.450–

58, including through depositions or interrogatories, id.

§ 725.458. And an Administrative Law Judge is authorized to

“[c]ompel the production of documents and appearance of

witnesses by the issuance of subpoenas.” 20 C.F.R. § 725.351.

If Arch appeals an ALJ’s orders denying discovery or refusing

to compel the appearance of witnesses as legally erroneous or

an abuse of discretion, the Board may vacate those orders and

remand for further proceedings. See id. § 802.301(a). Once

Arch reaches the court of appeals, it will have access to the full

administrative record. And “should the record in the

administrative proceeding prove inadequate to the court of

appeals . . . that court always has the option of remanding to

the agency for further factual development.” Jarkesy, 803 F.3d

at 22 (citation and internal quotation marks omitted). If the

Department violates any of Arch’s statutory discovery rights

during the administrative review process, and that process

results in a final order, Arch will be entitled to judicial review

before a U.S. court of appeals.

C. Finality

Finally, Arch asserts that “the Department’s allocation of

Patriot’s self-insurance and bankruptcy assets is final agency

action not subject to adjudication in the claims process.” Arch

Br. 37. In other words, Arch seems to assume that the

Department has disposed of some matters on the merits and,

therefore, it is entitled to review now. The Department

responds that the company is simply wrong on this point

because “Arch is fully able to raise its claims through the Black

Lung Act’s statutory review scheme, and its claims will be

meaningfully considered through that process.” Department

Br. 28. The record supports the Department on this point. The

Department also points out that there is nothing for this court

16

to review on the merits because “Arch has not challenged final

agency action as required by 5 U.S.C. § 704.” Id. We agree.

The Bulletin is not a final agency action because it does

not reflect “the consummation of the agency’s decisionmaking

process” and it does not offer a decision “by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–

78 (1997) (citations and internal quotation marks omitted). The

Bulletin merely instructs District Directors to issue notices of

claims making Arch a party to administrative proceedings and

thereby initiate the process by which Arch’s obligations under

the BLBA eventually will be determined.

“It is firmly established that agency action is not final

merely because it has the effect of requiring a party to

participate in an agency proceeding.” CSX Transp., Inc. v.

Surface Transp. Bd., 774 F.3d 25, 30 (D.C. Cir. 2014) (quoting

Aluminum Co. of Am. v. United States, 790 F.2d 938, 941 (D.C.

Cir. 1986)); see also FTC v. Standard Oil Co. of Cal., 449 U.S.

232, 241 (1980) (holding that the issuance of an administrative

complaint is not final agency action because a complaint is “not

a definitive statement of position” but instead a “threshold

determination that further inquiry is warranted”).

Arch argues that the inconvenience of having to defend a

claim on the merits should render its designation as a

potentially responsible operator reviewable. But the Supreme

Court’s decision in Standard Oil rejected this exact argument.

See Standard Oil, 449 U.S. at 242 (a party’s “burden of

responding to the charges made against it” before an agency “is

different in kind and legal effect from the burdens attending

what heretofore has been considered to be final agency

action”).

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Nor does Arch’s mere claim that the Bulletin is an

improperly adopted “rule” establish any exception to the final

order rule. We have held that “[t]his is a matter that can be

raised by [a party] if it elects to appeal the Board’s final

decision at the conclusion of the adjudication.” CSX, 774 F.3d

at 28. Were the courts to “permit[] a party to seek interlocutory

review on the ground that an agency has allegedly adopted a

new legislative rule during the course of an adjudication . . . [it]

would wreak havoc with the final order rule.” Id. at 33.

III. CONCLUSION

For the reasons set forth above, we affirm the District

Court’s dismissal of Arch’s complaint.