# Murphy Exploration & Production Co. v. United States Department of the Interior

> Court of Appeals for the D.C. Circuit · June 19, 2001 · 252 F.3d 473

URL: https://www.frixlaw.com/law-library/cases/6998952

## Case

- **Full name:** MURPHY EXPLORATION AND PRODUCTION COMPANY v. UNITED STATES DEPARTMENT OF THE INTERIOR and Gale A. Norton
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 19, 2001
- **Citations:** 252 F.3d 473; 346 U.S. App. D.C. 282; 150 Oil & Gas Rep. 1; 2001 U.S. App. LEXIS 13499; 2001 WL 681692
- **Precedential status:** Published
- **Opinion:** Dissent by Rogers
- **Judges:** Ginsburg, Rogers, Sentelle
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6998952

## How later opinions describe it (automated extraction)

- stating that “Chevron does not apply to statutes that . . . confer jurisdiction on the federal courts” because “such statutes do not grant power to agencies”
- stating that “Chevron does not apply to statutes that ... confer jurisdiction on the federal courts” because “such statutes do not grant power to agencies”
- noting that regulations governing administrative appeals having no bearing on courts’ subject-matter jurisdiction

## Opinion text

ROGERS, Circuit Judge,
dissenting:
In dismissing the complaint for lack of jurisdiction, the district court observed that the 10-year delay by the Department 'of the Interior (“DOI”) in addressing the refund request of appellant Murphy Exploration and Production Co. (“Murphy”) was “worrisome.” However worrisome that delay may be, the only question for this court is whether Congress provided in the Federal Oil and Gas Royalty Simplification and Fairness Act the relief that Murphy claims entitles it to review in the federal district court. Because the statutory text, structure, and legislative history demonstrate that Congress intended for the statute to shorten only delays in the agency administrative- process following initial action by DOI, and because the court’s contrary interpretation robs the statute of its logical and natural meaning, I dissent.
At the heart of my disagreement with the court is the term “administrative proceeding,” which is defined in the statute as “any Department of the Interior agency process in which a demand, decision, or order issued by the Secretary ... is subject to appeal or has been appealed.” 30 U.S.C. § 1702 (18) (emphasis added). The court correctly reasons that “a private party’s refund request is a type of ‘demand.’ ” Opinion at 480. However, the court then curiously states that it is merely arguable that the phrase “issued by the Secretary” modifies “demand,” “decision,” and “order.” See opinion at 480-81.
This point does not seem arguable because basic “rules of grammar apply in statutory construction.” Anhydrides & Chemicals, Inc. v. United States, 130 F.3d 1481, 1483 (Fed.Cir.1997). Specifically, the rule of the last antecedent applies here, and the court has observed that it is “one of the simplest canons of statutory construction.” United States v. Pritchett, 470 F.2d 455 , 459 n. 9 (D.C.Cir.1972). As defined by the court, the rule states: “Ordinarily, qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to others more remote. This ... is not an inflexible rule, and is not applied where the context indicates otherwise.” Id. at 459 (footnote omitted). A treatise definition of the rule is similar: “Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent [, which consists of] the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.” NoRman SingeR, 2A Statutes and Statutory Construction § 47:33 (6th ed.2000) (footnote and internal quotation marks omitted).
The rule of the last antecedent compels the conclusion that “issued by the Secretary” modifies “demand,” “decision,” and “order.” This is the most natural reading of the statute because these three nouns are similar, are placed next to each other, and are all capable of being modified by “issued by the Secretary.” Ordinarily, adjectival modifiers are placed closest to the nouns they modify, .and to avoid ambiguity or confusion, nouns that are not modified are set apart from nouns that are modified. Congress would have drafted the statute differently if it had intended to convey the meaning that the court finds. Cf. Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 , 115 S.Ct. 1061 , 131 L.Ed.2d 1 (1995). If Congress had not intended for “issued by the Secretary” to modify all three nouns, “Congress with ease could have drafted [§ 1702(18) ] to read” 1 : “any agency process in which a decision or order issued by the Secretary, or a demand, is subject to appeal.” Thus, the most plausible conclusion is that Congress meant for *484 “issued by the Secretary” to modify “demand.”
The court suggests that because an antecedent is sometimes a single “word” instead of a “phrase,” the rule supports the conclusion that “issued by the Secretary” only modifies the word “order.” See opinion at 482. 2 This application of the rule guts it of all practical meaning. How are we to determine if the relevant antecedent is just a single word, or if it is a larger phrase? The rule itself provides guidance, as it encourages us to extend the reach of the modifying phrase as far as is possible “without impairing the meaning of the sentence.” The Supreme Court has also provided useful advice: “When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 , 40 S.Ct. 516 , 64 L.Ed. 944 (1920). Furthermore, the court’s application of the rule is in conflict with cases like Pritchett , which make clear that the rule does not endorse parsing antecedent clauses to limit the meaning of a modifying phrase to a single word. In Pritchett , this court considered a statute that referred to “members of the Army, Navy, or Marine Corps of the United States or of the National Guard or Organized Reserves when on duty.” Pritchett, 470 F.2d at 456 . Not surprisingly, the court construed the modifying phrase “when on duty” to apply to all of the service members listed, not just members of the Reserves. See id. at 459-61 . Thus, the court has misapplied the rule.
Not only has the court faked to point to any reason why the ordinary rule of the last antecedent does not apply, the court fails to identify any contextual clues in the statutory language indicating that “demand” should be considered separately from “decision” and “order.” Instead, the court relies on another canon of statutory interpretation, in effect asserting that the natural reading of the statute is implausible because it makes the term “demand” redundant. The court’s approach is flawed for two reasons. First, although statutory interpretation should proceed in a manner that avoids redundancy, see Gustafson, 513 U.S. at 574 , 115 S.Ct. 1061 , this principle is not a license to ignore fundamental principles of grammar. The court points to no authority suggesting that an antecedent clause can be parsed in such an unnatural manner, or that grammar rules can be suspended to avoid redundancy. Second, the court’s reading does not really avoid redundancy in the statutory language; it just creates a different kind of redundancy. If the phrase “issued by the Secretary” modifies only “order” (or if it modifies both “decision” and “order,” an even more improbable reading), then it is sur-plusage because, for the purposes of this statute, only the Secretary (or a delegated State) can issue decisions and orders. See 30 U.S.C. § 1702 . The phrase “issued by the Secretary” is stripped of much of its meaning unless it is construed to modify “demand.”
The type of redundancy that eases like Gustafson warn against is not at issue here. See opinion at 481. In Gustafson , a broad definition of the word “communication” threatened completely to overshadow four other words in a definitional list (“notice, circular, advertisement, [and] letter”), making them “altogether redundant.” Gustafson, 513 U.S. at 573-74 , 115 S.Ct. 1061 . Such a broad definition would have *485 made the relevant statute’s reach more expansive than Congress intended, and inconsistent with “the background of what Congress was attempting to accomplish in enacting [it].” Id. at 575 , 115 S.Ct. 1061 . In contrast, if “demand” is modified by “issued by the Secretary,” the^ resulting overlap between “demand” and “order” is far less problematic. Were the .court’s excessively strict view of what redundancy means to prevail generally, then other definitions in § 1702 would also be redundant. For example, “Indian tribe” is defined to “mean any Indian tribe, band, nation, pueblo, community, ranchería, colony, or other group of Indians.” 30 U.S.C. § 1702 (4). No less than each of these words, the terms “order” and “demand” overlap, but they also convey distinct meanings. Congress simply chose to define the statute’s terms using words that do not each possess mutually exclusive and wholly independent meanings. The fact that all demands issued by the Secretary are also orders (although all orders are not necessarily demands) does not mean that basic grammatical rules should be violated to wring extra meaning out of the antecedent clause.
The court’s reliance on Gustafson is misplaced for another reason as well. In Gus-tafson, the Supreme Court cautioned against “reliance on one word ... in isolation,” and stated that a disputed phrase “must be read in its entirety.” Gustafson, 513 U.S. at 574 , 115 S.Ct. 1061 . The Supreme Court refused to pluck one word out of a list, preferring to read the word in context so that its meaning would not be unreasonably expanded. See id. Here, the court divorces “demand” from its natural and appropriate context when it refuses to apply the phrase that modifies it. Other aspects of the statutory language also help to show that the 33-month deadline cannot be triggered when a private party files a refund request. Section 1724(h) repeatedly uses the terms “appeal” and “appellant.” For example, it provides that “[d]emands or orders issued by the Secretary are subject to administrative appeal,” that a private party’s “immediate appeal of an order” should not be hindered, and that “[t]he 33-month period may be extended by any period of time agreed upon in writing by the Secretary and the appellant.” 30 U.S.C. § 1724 (h). These references to “appeal” and “appellant” establish the context of § 1724(h) and confirm that it was not meant to limit the time that the Secretary has to respond initially to refund requests. The court ignores the statute’s repeated use of the terms “appeal” and “appellant.”
The structure of the statute also points to the implausibility of the court’s construction that “issued by the Secretary” should be read not to modify “demand.” Private parties’ demands and refund requests are not subject to administrative appeal in the absence of action by the Secretary. Logically, only demands issued by the Secretary can be appealed; a private party cannot appeal its own refund request. The statute provides that “[d]e-mands or orders issued by the Secretary or a delegated State are subject to administrative appeal in accordance with the regulations of the Secretary.” Id. § 1724(h). In this part of the statute, as in § 1702(18), the phrase “issued by the Secretary” is properly construed to modify both “demands” and “orders.”
It is obvious that a private party’s demand can lead to. a DOI order, and that DOI order, in turn, is subject to appeal. See opinion at 480-81. However, the court engages in interpretive sleight of hand when it states that “because Murphy’s ‘demand’ set in motion an ‘agency process’ that could culminate in a DOI order that would be ‘subject to appeal,’ it triggered an ‘administrative proceeding.’” Opinion at 480. If, as the court concludes, the *486 term “demand” in the definition of “administrative proceeding” extends to refund requests, then under its interpretation the relevant reading of “administrative proceeding” would be “the agency process in which a refund request is subject to appeal.” But of course a refund request itself cannot be subject to appeal. Similarly, for example, even though a tort claim might lead to a judicial decision that is subject to appeal, it would be odd to characterize a tort claim itself, in the absence of any adjudication, as “subject to appeal.”
Perhaps the court interprets the term “agency process,” as used in § 1702(18), to be so expansive that it is appropriate to read into the statute the unmentioned, but obviously necessary, step of DOI’s order in response to a refund request. See opinion at 480-81. Although as a general principle every word in a statute should be construed to have meaning, see Reiter v. Sonotone Corp., 442 U.S. 330, 339 , 99 S.Ct. 2326 , 60 L.Ed.2d 931 (1979), in this context it is implausible to suggest that Congress’ use of the term “agency process” means that a refund request can itself be considered “subject to appeal” for purposes of triggering the 33-month time limit. Put otherwise, the agency must act for the phrase “subject to appeal” to have meaning. The court’s reasoning, however, bootstraps a significant agency action — an order issued in response to a refund request — into the meaning of the statute.
In contrast with the court’s strained construction, DOI has proposed a more reasonable way to interpret Congress’ reference to “agency process” in conjunction with the phrases “is subject to appeal” and “has been appealed.” The agency “recognizes that the 33-month deadline was intended to apply to (1) appeals that were already pending when [the statute] was enacted, and (2) appeals of future agency demands, decisions, and orders.” Br. for Appellee at 38. The “ ‘agency process in which a demand, decision, or order issued by the Secretary ... has been appealed,’ refers to the agency process for resolving those appeals already pending when [the statute] took effect” on August 13, 1996. Id. Such appeals must be resolved by May 13, 1999, 33 months after the date the statute took effect. The statute’s reference to an “agency process in which a demand, decision, or order issued by the Secretary ... is subject to appeal,” simply pertains to the agency process for resolving appeals of demands, decisions, and orders issued by the Secretary after the statute was enacted. See id.
The legislative history of the statute also supports the conclusion that a private party’s refund request cannot trigger the 33-month deadline. For example, the House Report generally describes one of the reforms of the new law as “placing a time limit on administrative appeals.” H.R.Rep. No. 104-667, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 1442, 1444. More specifically, the House Report describes the section that was codified as § 1724(h) as “requiring] the Secretary of the Interior to take a final departmental action on appealed claims within 33 months.” Id. at 18, reprinted in 1996 U.S.C.C.A.N. 1442, 1448 (emphasis added). This is consistent with the overall goal of § 1724(h) reflecting Congressional intent to make the agency appeals process more efficient, thus accelerating “the collection of onshore and offshore oil and gas royalty payments from Federal lands.” Id. at 14, reprinted in 1996 U.S.C.C.A.N. 1442, 1444.
The legislative history underscores the point that Congress knew exactly how to write a statute to state that filing a refund request could trigger an “administrative proceeding.” The first Senate version of the bill provided that “ ‘administrative proceeding’ means any agency process for rulemaking, adjudication or licensing,” and that an administrative proceeding could be *487 commenced by “the receipt by the Secretary of a written request or demand by a lessee.” 141 Cong. Rec. S9517-02, S9539 (1995). This language did not survive in the final legislation enacted by Congress. The absence of such clear language in the final legislation enacted into law is fair notice that the meaning of the statute has changed. Cf. Booth v. Churner , — - U.S. -, 121 S.Ct. 1819, 1824-25 , 149 L.Ed.2d 958 (2001). The court nonetheless reads back into the statute provisions that Congress eliminated.
Based on the plain language, structure, and legislative history of the statute, therefore, I would hold that for the purposes of § 1724(h), an administrative proceeding cannot be commenced when a private party files a refund request. Accordingly, I would affirm the dismissal of the complaint for lack of jurisdiction. 3
. Id.
. In quoting the rule of the last antecedent, the court omits in its ellipsis key language, namely, “the last word, phrase, or clause that can be made, an antecedent without impairing the meaning of the sentence." See opinion al 482 (omitting italicized language).
. Murphy's other contentions lack merit. First, Murphy suggests that the ten-year delay between the filing of its refund request and DOI’s November 1998 order was unreasonable, and that under the principles of Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) ("TRAC”), the district court should have regarded the 1998 order as final agency action. However, the remedy for unreasonable agency delay is for the court to order the agency to expedite its administrative processes and issue a final decision within a time frame set by the court, or to explain its refusal to act. Murphy did not request such relief, but sought a substantive determination on the merits. Moreover, because DOI has acted and the 33-month time period has not expired, the delay is "worrisome,'' but not unreasonable under TRAC. Second, Murphy's challenge to the December 1993 order fails because its amended complaint does not mention that order. See Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202-03 (D.C.Cir.1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6998952. Public record. Not legal advice.