# Reply Brief — BP America Production Co. v. Burton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0233%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2006 - **Citation:** 549 U.S. 84 ## Text a Burcnire “a sey 8s (Zlof aN ‘ PLR UF, ! RAE > Sls No. 05-669 ) mite D4 os IN THE Supreme Court of the Anited States BP AMERICA PRODUCTION COMPANY AND ATLANTIC RICHFIELD COMPANY, Petitioners, V. REJANE BURTON, ACTING ASSISTANT SECRETARY OF THE INTERIOR FOR LAND AND MINERALS MANAGEMENT, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Coiumbia Circuit REPLY BRIEF FOR PETITIONERS MICHAEL L. HOMEYER STEVEN R. HUNSICKER BP AMERICA INC. Counsel of Record 501 West Lake Park Blvd. JEFFREY A. LAMKEN Houston, TX 77079 MICHAEL G. PATTILLO, JR. (281) 366-3772 STEPHANIE DOURADO GUILLERMO S. CHRISTENSEN BAKER Botrs L.L.P. 1299 Pennsylvania Ave., NW Washington, D.C. 20004-2400 (202) 639-7700 Counsel for Petitioners WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001 TABLE OF CONTENTS Page A. The Terms “Action” And “Complaint” Encompass Administrative Adjudications ............ 2 B. The Government’s Construction Renders An Entire Subsection Of Section 2415 I a niscecininiitiscenietinteitininipinciavatsiatinlaiaitoipasins 9 C. Excluding Administrative Proceedings From Section 2415(a) Renders Its Effects Illusory........ 11 D. The Canon Of “Strict Construction” Does Not Counsel A Contrary Resullt..............:cccssscsssees 16 E. Amendments To The Mineral Leasing Act Do Not Support The Government’s View.............. 18 TABLE OF AUTHORITIES CASES Andrus v. Shell Oil Co., 446 U.S. 657 (1980) .......... 6 Beach v. Ocwen Fed. Bank, 523 U.S. 410 Geese liacerensctieeninteiiicienbcecischeiindlasiniarinsdatiiipiasiauiwineedsnises 10 Bowers v. New York & Albany Lighterage Cor, SEB TB. BOG CORT) cssceccosscccccscesosocsnioceves 1, 16,17 Citizens Bank of Md. v. Strumpf, 516 U.S. aT iivhesnsinipsettiiiintbsineinintiaphibebienitiesciiniindieaninetes 12 Crown Coat Front Co. v. United States, 386 SI: EE TD ncadibiericiiinactcinieitabinistiennstiniadiniicsetotels 15 Duncan v. Walker, 533 U.S. 167 (2001)..............0++ 9 Glenn Elec. Co. v. Donovan, 755 F.2d 1028 Ge Cs Se crccstnseseripientniiincintesnncindictatelaipescivinins 19 Griffin v. Oceanic Contractors, Inc., 458 Se ne I cstnciishcncicintisititneteintsedsutntetindncitiptptiicee 13 Gutierrez v. Ada, 528 U.S. 250 (2000).........cececeesees 18 (i) “i TABLE OF AUTHORITIES—Continued Page In re Enter. Mortgage Acceptance Co. Sec. Litig., 391 F.3d 401 (2d Cir. 2004)... ceeseeees 20 Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (1988) ......cscscesesesessseeees 11 Neder v. United States, 527 U.S. 1 (1999)...........0 13 OXY USA, Inc. v. Babbitt, 268 F.3d 1001 EEG SI eictechiiecthinintiainlinaasiibiiaiiahitesaninibantigs 1,9 Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 Phillips Petroleum Co. v. Johnson, No. 93- 1377, 1994 WL 484506 (5th Cir. Sept. 7, a a 19, 20 Pioneer Inv. Servs. v. Brunswick Assocs., Pe re clic sitar satinaiiaiintncs 7 SEC v. C_M. Joiner Leasing Corp., 320 U.S. el RARE SEE 2 BER Rena ne ae a 16 Samedan Oil Corp. v. Deer, No. Civ. A. 94- 2123, 1995 WL 431307 (D.D.C. June 14, I cssiischiusinitiikithidetiadiichebiondeteilacscapniibnandaseaianinandlisa 19, 20 Sullivan v. Hudson, 490 U.S. 877 (1989) ........s0s000 7 TRW Inc. v. Andrews, 534 U.S. 19 (2001)............... 9 Tex. & Pac. Ry. Co. v. Abilene Cotton Oil a TI a See bacdicctenetnititcectecinsininttiiccnent 12 Unexcelled Chemical Corp. v. United pt eee 7,8 United States v. Hanover Ins. Co., 82 F.3d I ie 9,19 United States v. Hartwell, 73 U.S. (6 Wall.) ESSERE ETE Saracens ae Rees aC 16 ili TABLE OF AUTHORITIES—Continued Page United States v. LaF ranca, 282 U.S. 568 Goel cidietitindeacentouinenhasinininctscnstipinivipetetndetiiininainess 11 United States v. Nordic Village, Inc., 503 ee I sitiiccdladeiinesdtscesdendusiinbanspelapiitactissciinanvininiae 16 West v. Gibson, 527 U.S. 212 (1999).........ccccecescereeees 7 STATUTES AND REGULATORY MATERIALS Es RO siete siisiciictintseictisininie 2 BE Sy BND cecrerntcensinscstisciotuensintptratemrcenintin 2 4 Gait NRE SES Se ACNE Deane CRA RP 15 SEPT MEINE (incr screasencidinieaamenisdntisieimaniniiaiiin passim ae a I icsiicccitinittestesivtnaistniniapitsteitanaiiie passim Be are liaat SP OMNOTEE tcndicinntnictpedetnivcenintteindscnsmistiiaulinis 1,11 es ee aciblichesicinkibinsbdintacesiptestesnduviphipinaicteapinipaie 4 Portal-to-Portal Act Of 1947, Pub. L. No. 80-49, 61 Stat. 84, codified as amended at 29 U.S.C. § 251, et:seq. ee a Ea hininsteiciincbiciitiicetinsesiteninchaialitibcaine 7 or Nee A eiicantashctinsneiutschiattigsiithiiebiibicsatigiicines 8 nee SmI ines silssinlincnsncindincisieiissitintellbbiteciagahinables 6 aia Ae ARIE ic ttcintnstisinitseemsnctnteuincanonshtesanenininilas 18 eet Se Satchincibitecinienssiistidanlibitainbibiantanniiaina 6, 19 i eee ichaitassshininntiemthetiabicetncetistnindenninticnsekniniicen 18 TN | __._, RE SES Saas Cate De ee ae 14 Sy Ce eeiciihciibdidasiicsitpliinlsctdlininiipinitegtpbiniiatitataheamnibiaaie 4 OE aes PE iti shishiindaniinlectecttliiiicdssanasnctieinantinsia 15 a i itisdsiaicnissidictritiincocnietiainishnpthighaaisaiiiini 5 Be Raney cat We as rcepatenssiiintidsciiisnnintintwiesiatisebsii 4 iv TABLE OF AUTHORITIES—Continued Page Sr eis ee cil tipiianiseitchecsiabcictttecices tails cRiaid 5 ake Bef, sees eee 2 MISCELLANEOUS 7 Black’s Law Dictionary (8th ed. 2004)...........00++ 4,5,6 Effect of Statute of Limitations on Administrative Collection of United States Claims, Mem. Op. Off. of Legal Counsel (Sept. 29, 19778) .........ccsccccsssrscsscsosecsseesees 12 Federal Oil & Gas Royalty Simplification and Fairness Act of 1995: Report of the S. Comm. on Energy and Natural Res., 104th Cong., 2d Sess. (1995) .........cccccseereesereeeees 19 Sen. Rep. No. 378, 97th Cong., 2d Sess. (1982)...... Y Sen. Rep. No. 1328, 89th Cong., 2d Sess. III: scsstskcchcodsnehsiaiailita dade cidaclithad ee inate 11, 13, 16 Seven-Year Balanced Budget Reconciliation Act of 1995: Report of the House Comm. on the Budget, 104th Cong., 1st Sess. (1995) .......... 20 REPLY BRIEF FOR PETITIONERS The government in essence argues that the phrase “felvery action” in Section 2415(a) does not really mean “every action.” Rather, the government urges that the phrase includes some actions—adjudicative actions before a court—but excludes others—adjudicative actions before an agency. That argument contravenes not only the statute’s “patently broad” text, OXY USA, Inc. v. Babbitt, 268 F.3d 1001, 1005 (10th Cir. 2001) (en banc), but fundamental canons of construction as well. It renders an entire sub- section of the statute—Section 2415(i)’s exception for ad- ministrative offsets—superfluous. It is at war with Section 2415’s structure, and destroys Congress’s careful calibra- tion of record-retention and limitations periods. More important, that construction would all but deprive Section 2415(a) of practical effect. In the government’s vie~ Section 2415(a) limits the time to pursue claims in cou .n the first instance, but permits the very same claims to be pursued administratively in perpetuity and in court thereafter within one year of final administrative decision. That eliminates both the repose and the incentive for dili- . gent prosecution that Section 2415(a) was supposed to pro- vide. Courts should not “rewrite a statute in hopes of better achieving one of Congress’s purposes.” Gov't Br. 40-41. But nor should they disregard a textually proper construc- tion in favor of one that is so crabbed that it not only subverts the statutory purpose, but also converts the statute into a virtually meaningless gesture. The government’s reliance on “strict construction” is misplaced. Even when strictly construing a limitations period, this Court must give effect to statutory text; avoid rendering provisions superfluous; and ensure that it does not undermine the statute’s intended effect. Just like the construction this Court rejected in Bowers v. New York & Albany Lighterage Co., 273 U.S. 346 (1927), the govern- ment’s construction here would contravene each of those requirements. 2 A. The Terms “Action” And “Complaint” Encom- pass Administrative Adjudications Section 2415(a)’s breadth is evident from its text: It applies to “every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract.” 28 U.S.C. § 2415(a). 1. The government does not deny that, in modern usage, the word “action” is sufficiently broad to encompass both judicial and administrative actions for money, such as the one at issue here.' Nor does it dispute that dozens of statutes and regulations use the term “action” in precisely that fashion. Pet. Br. 19-23 & nn. 3-7; Gov’t Br. 20. None- theless, the government asserts that the words “every action,” when used by themselves, do not encompass admin- istrative actions. Noting the many statutes and regulations that use phrases like “administrative or civil action,” the government asserts that, when Congress “intends a phrase that includes the word ‘action’ to govern administrative pro- ceedings, it says so expressly.” Gov't Br. 20-21. That position is unfounded. Congress and agencies often use the word “action” by itself to encompass administrative and judicial actions alike; context then proves that the word “action” is used in that sense. For example, the FDCA au- thorizes an “[ajction by the Secretary” for money penalties before the agency and, in the alternative, an “[ajction by the Attorney General” in court. 21 U.S.C. § 335b(b)(1)(A), (B). It then limits both by declaring that “/n/jo action may be initiated under this section” more than 6 years after the facts become known to the government or 10 years after the events take place. Jd. § 335b(b)(3) (emphasis added); see also 31 C.F.R. § 501.703(b) (declaring that agency rules for adjudication must be construed to promote “just, speedy, and inexpensive determination of every action”). The MMS itself, in formal orders, often uses the word “action” without ' The government declines to contest in this Court that the instant action is “for money damages” and is “founded upon [a] contract.” See Pet. Br. 45-50; Gov't Br. 41 n. 14; contrast Br. in Opp. 18-19. 3 elaboration to encompass adversary administrative actions, including the action to recover royalties at issue here. See Pet. Br. 21 & n.8; Gov’t Br. 21 n.4. That ordinary usage by the relevant agency is surely probative of ordinary meaning. The government’s argument, moreover, is based on heads-I-win, tails-you-lose illogic.” It is also backwards: Where Congress wishes to exclude administrative actions, it does so expressly, using modifiers unique to the judicial process. Pet. Br. 24-25 & nn.12-14 (citing examples). The absence of such limiting language here speaks volumes. Besides, the fact that the word “action” is regularly used to encompass administrative proceedings—even in phrases such as “civil or administrative action” or “action or pro- ceeding before a[n] * * * administrative agency,” Pet. Br. 19-21 & nn.3-7—makes clear that “administrative actions” are a subset of the more general category “actions.” If, as the government posits, the term “action” excluded adminis- trative actions, putting the word “administrative” in front of “action” could not expand its scope. Here, moreover, Con- gress did not need the word “administrative” to make Section 2415’s all-encompassing scope clear. Congress declared that Section 2415(a) applies to “every action.” It is nonsensical to argue that, because Congress and regulators identify “administrative actions” as a subset of “actions” in many contexts, administrative actions are not encompassed within the phrase “every action” in Section 2415(a).° *The government demands proof that Congress and agencies use the word “action” to encompass administrative actions. But, when confron- ted with myriad statutes and regulations that do precisely that, see Pet. Br. 18-21, the government rejects them because context, definitions, or modifiers make it clear that Congress used “actions” to encompass administrative actions. If we cited statutes or regulations lacking those features, the government would of course dismiss those as ambiguous. *The government also argues that Section 2415 should be limited to judicial proceedings because “Section 2415 is located within Title 28” of the U.S. Code, “which is entitled ‘Judiciary and Judicial Procedure’—not ‘Administrative Procedure.’” Gov't Br. 24. But Section 2415 belongs in Title 28 because it governs both judicial and administrative actions. Title 4 2. The government likewise errs in asserting (Br. 16) that the word “complaint” forecloses Section 2415(a)’s appli- cation to actions before agencies. The government does not dispute that such actions are often initiated by “complaint.” Gov't Br. 21. Instead, it argues that Congress meant to exclude administrative actions because agency “procedures vary substantially,” with some employing “different termi- nology tailored to specific contexts.” /bid. But that is back- wards: Congress used the broad, generic term “complaint” in Section 2415(a) to refer to any document that commences proceedings by “stat[ing] * * * the basis for the plaintiff’s claim, and the demand for relief.” Black’s Law Dictionary 303 (8th ed. 2004). As one regulation explains, “[c]omplaint means any document initiating an adjudicatory proceeding, whether designated a complaint *** or otherwise.” 17 C.F.R. § 10.2(f). The government concedes that the term “complaint” includes not only instruments bearing that for- mal label but also any “functionally similar document.” Gov't Br. 21. Not all adjudications begin with a document labeled “complaint.” But they all begin with a document that is “functionally similar.” No less than agencies, courts use a variety of terms for what is often referred to as a complaint. In Oklahoma, it is denominated a “petition”; at common law, it was called a “declaration.” See Pet. Br. 24 n.11. Yet no one would argue that a federal limitations period regulating when a “com- plaint” asserting a federal claim must be filed is without effect in Oklahoma courts simply because proceedings in those courts are commenced by “petition.” Jbid. Likewise here, the fact that some administrative agencies use “differ- ent terminology” for the complaint—referring to the sub- mission of a “claim,” for example, Gov't Br. 22 (quoting 41 28 includes other provisions applicable to both judicial and admini- strative procedure. For example, the Federal Tort Claims Act, codified in Title 28, sets forth procedures for the “[a]dministrative adjustment of claims” against the United States. See 28 U.S.C. § 2672. 5 U.S.C. § 602 and 42 U.S.C. § 9612(d))—cannot mean that Section 2415(a) lacks application to agency actions. For the same reasons, the government errs in asserting that, “even if some administrative pleadings were governed by the limitations period, MMS’s orders would not be,” be- cause “[t]here is no ‘complaint’ in [MMS’s] scheme.” Gov't Br. 22, 24. The government argues that the MMS order to pay that began these proceedings does not function as a complaint because “[a] complaint seeks relief,” while “an order imposes it.” Jd. at 23. But an MMS order to pay does not fall within the traditional understanding of administra- tive orders, which are “issued by a government agency after an adjudicatory hearing.” Black’s Law Dictionary, supra, at 1130 (emphasis added). In MMS practice, the order to pay precedes the adjudication, which takes place during the so-called “appeal” under 30 C.F.R. § 290.100, et seq. As the Assistant Secretary’s sweeping opinion in this case demon- strates, the “appeal” that follows an MMS order to pay is in’ fact a plenary proceeding to resolve the merits in the first instance. See Pet. App. 68a-97a. Both factual and legal issues are adjudicated during the “appeal”; its scope is not constrained by limitations characteristic of appellate review.‘ Thus, while an MMS order may purport to “com- mand the payment of royalties,” Gov’t Br. 23, it (like a complaint) initiates, rather than resolves, MMS’s claim. The contrary position is difficult to reconcile with the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996 (“FOGRSFA”), which established a statute of limitations for oil and gas (but not other minerals) extracted from federal (but not Indian) lands after September 1, 1996. That provision declares that any “judicial proceeding or demand which arises from * * * [a lease] obligation shall be commenced within seven years” of when “the obligation * The government points out that an “informal process” often precedes the issuance of the order. There are no guidelines or regulations gov- erning that process, however, and lessees are not afforded anything resembling an adjudicatory hearing to present a full defense. 6 becomes due.” 30 U.S.C. § 1724(b) (emphasis added). It defines “demand” to include “an order to pay issued by the Secretary” where there is “a reasonable basis to conclude that the obligation in the amount of the demand is due and owing.” 30 U‘S.C. § 1702(23)(A). FOGRSFA thus recogni- zes that a so-called MMS “order to pay,” far from conclud- ing the action, in fact “eommence/s]” it. Id. § 1724(b). The definition confirms that such orders are not merits dispo- sitions but preliminary “demands” issued if there is a “rea- sonable basis” (probable cause) to conclude money is owed. Id. § 1702(23)(A). Whether money is in fact owed is left for later adjudication. Congress’s use of the word “demand” is also telling, since a complaint is a type of “demand.” See Black’s Law Dictionary, supra, at 303. The government’s argument also yields absurd results. Under it, an agency can opt out of a statutory limitations period by renaming the document that initiates its adjudica- tions. The Mireral Leasing Act does not require that the Department of Interior proceed by “order” or “complaint.” Yet, by historical accident, the agency sometimes uses one label and sometimes another. In Andrus v. Shell Oil Co., 446 U.S. 657 (1980), for example, the Bureau of Land Management sought to cancel several mineral patents by “issu[ing] administrative complaints.” Id. at 660 (emphasis added). Under the government’s theory, the agency could avoid Section 2415’s limitations period by renaming all ad- ministrative complaints “orders.” As noted above (at pp. 4- 5, supra), the government cannot evade federal! limitations periods by filing its lawsuit in a jurisdiction where proceed- ings are initiated by “petition” or “declaration” rather than “complaint.” Likewise, federal agencies cannot avoid the limitations period in Section 2415(a) by choosing to com- mence proceedings not with a complaint but with an order. 3. This Court’s opinions confirm what ordinary usage suggests—that “action” and “complaint” are sufficiently broad to encompass administrative actions like the action for royalties at issue here. Pet. Br. 17-19. Despite the gov- 7 ernment’s protestations, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), and West v. Gibson, 527 U.S. 212 (1999), did indeed “construe[] the term ‘action’ to encompass administrative actions.” Gov't Br. 18 (quoting Pet. Br. 17). As this Court later stated, “[iJn Delaware Valley, we rejected the contention that the word ‘action’ * * * should be read narrowly to exclude all proceed- ings which could be plausibly characterized as ‘non- judicial.’” Sullivan v. Hudson, 490 U.S. 877, 888 (1989). The government’s contrary construction rests largely on the entries for “action” and “complaint” in Black’s Law Dic- tionary. See Gov’t Br. 9, 14, 15, 16, 17, 23. But this Court is “not bound to accept Black’s * * * as the authoritative expos- itor of American Law.” Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 403 (1993) (O’Connor, J., dissenting). That is particularly true where, as here, the definition does not correspond to current, prevailing usage reflected in court opinions, statutes, regulations, and agency decisions. The cited definition of “action” dates at least to the 1910 second edition (p. 25)—before administrative agencies be- came commonplace, and well before the APA regularized the trial of adversary actions before them. But the trial of actions before agencies is now common, and Black’s failure to update an entry cannot turn back the clock. The government’s reliance on Unexcelled Chemical Corp. v. United States, 345 U.S. 59 (1953), is likewise mis- placed. That decision does not “h{ojld * * * that commenc- ing an ‘action’ by filing a ‘complaint’ refers, in its ‘ordinary sense,’ to filing a complaint in court, not to initiating an administrative proceeding.” Gov't Br. 17. The primary question in Unexcelled was whether the two-year limi- tations period in the Portal-to-Portal Act, 29 U.S.C. § 255, applied to a judicial action for liquidated damages. The Court held that it did. 345 U.S. at 63-64. in a single paragraph, Unexcelled responded to the gov- ernment’s alternative argument that its suit was filed within the two-year limit. The Portal-to-Portal Act provides that 8 an action is commenced for the purposes of [the statute] * * * on the date when the complaint is filed.’” 345 U.S. at 66 (quoting 29 U.S.C. § 256) (emphasis added). The govern- ment argued that its suit, although filed after the two-year period, was timely because the action was “commenced” three years earlier, with che Secretary of Labor’s “issuance of a formal complaint in the [separate] administrative pro- ceedings.” /bid. The Court rejected that argument, stating that “[clommencement of an action by the filing of a com- plaint has too familiar a history and the purpose of §§ 6 and 7 was too obvious for us to assume that Congress did not mean to use the words in their ordinary sense.” /bid. Properly understood, that does not mean that admini- strative actions were exempt from the statute of limitations. That was not at issue, since the administrative proceedings were brought within the two-year period.’ The question was whether the timely filing of the administrative com- plaint could be said to “commence” the later, distinct judi- cial action so as to make it timely. (Unlike Section 2415(a), the Portal-to-Portal Act lacked a relevant provision to toll the limitations period during administrative proceedings.) Invoking the purpose of the provisions at issue, this Court answered that question in the negative, consistent with the “familiar * * * history” that an action is “commenced” when the complaint in that proceeding is filed, not when a com- plaint in some earlier, separate proceeding is filed. 345 U.S. at 66. Each action subject to a statute of limitations— administrative or judicial—must be filed within the speci- see * The text of the Portal-to-Portal Act, moreover, made it clear that it was limited to judicial proceedings. The section at issue in Unexcelled speci- fically refers to “the court in which the action is brought” and “the court in which the action was commenced.” Portal-to-Portal Act of 1947, § 7, 61 Stat. 88, currently codified at 29 U.S.C. § 256 (emphasis added). Similarly, the provision of the Walsh-Healy Act at issue allowed liquida- ted damages in “suits brought in the name of the Attorney General.” Unexcelled, 345 U.S. at 65-66 n.4 (emphasis added). In contrast, Section 2415(a) applies to “every action,” and contains no references to “court” or “suit” that might limit its scope. See p. 2, supra; Pet. Br. 24-26. 9 fied period. The administrative complaint thus may have “commenced” the administrative action. But it could not be said to have commenced the separate judicial action so as to make it timely. For that, a complaint had to be filed in court within the limitations period. Jbid. That unexcep- tional ruling sheds no light on the issue before this Court. B. The Government’s Construction Renders An En- tire Subsection Of Section 2415 Superfluous To the extent Section 2415(a)’s scope is in doubt, the re- mainder of the statute erases any question. It is a “‘cardi- nal principle of statutory construction’ that ‘a statute ought, ~ upon the whole, to be so construed that, if it can be prevent- ed, no clause, sentence, or word shal] be superfluous, void, or insignificant.” T’'RW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). In this case, Subsection (i) of Section 2415 express- ly exempts “administrative offsets” from the limitations period that Section 2415(a) otherwise establishes. That ex- ception for administrative offsets would be entirely unne- cessary if the limitations period did not apply to administra- tive proceedings in the first place. Pet. Br. 26-30. Court after court, including the D.C. Circuit, has acknowledged as much. Pet. App. 18a; OXY, 268 F.3d at 1006; United States v. Hanover Ins. Co., 82 F.3d 1052, 1055 (Fed. Cir. 1996). To evade that “cardinal principle,” the government in- vokes legislative history, urging that Congress added Sub- section (i) merely “to ‘clarify[|’ that the limitations period does not apply to administrative offsets.” Gov't Br. 31. Even if isolated references to “clarification” in a Senate Report, Gov't Br. 31 (quoting Sen. Rep. No. 378, 97th Cong., 2d Sess. 2, 16 (1982)), could trump the rule against super- fluity—and they cannot—the Senate Report’s substance is to the contrary. The Report begins by observing that “(Subsection (i)] allows collection of delinquent debt owed the government by administrative offset beyond the six- year statute of limitations.” Sen. Rep. No. 378, supra, at 16 (emphasis added). It explains that “(t]he Justice Depart- ee 10 ment has determined that the six-year statute of limita- tions prevents the government from collecting debts by means of offset, thus, the government will be unable to collect a just debt from many debtors because the statute of limitations has run out.” Ibid. (emphasis added); see id. at 16-17 (noting the need to amend because, under the then- existing version of Section 2415, “if more than six years passes * * *, the government will be unable to set off the ~employee’s retirement pay”). Finally, it summarized that “(t]his revision to Section 2415 would allow administrative offset of delinquent debts owed the government * * * be- yond the six-year statute of limitations.” Jd. at 17 (empha- sis added). That such a “revision” was thought necessary to “allow” the pursuit of administrative offsets “beyond the six-year statute of limitations,” id. at 16-17, shows that Subsection (i) had the substantive effect of affirmatively excepting administrative offsets from an otherwise appli- cable limitations period. The government also urges that excluding administra- tive actions from Section 2415(a) would not convert the administrative-offset exception into surplusage: If the debt * * * could otherwise be enforced only through an affirmative action in court, and an action in court on that debt would be barred by Section 2415(a), Section 2415(i) clarifies that such an offset is not time-barred. The question whether an otherwise time-barred claim can be used defensively as an offset in that manner arises whether or not Section 2415(a) limits only court actions or both court actions and ad- ministrative proceedings brought by the government. Gov’t Br. 32. That argument, to the extent it makes sense, contradicts the government’s observation that “a statute of limitations extinguishes only the remedy, not the underly- ing right.” Gov’t Br. 13 (citing Beach v. Ocwen Fed. Bank, 523 U.S. 410, 416-417 (1998)). If Section 2415(a) barred only actions in court, it would be perfectly clear that agen- 11 cies could pursue otherwise barred claims by administrative offset even absent Section 2415(i)’s exception.° The government likewise errs when it dismisses Section 2415(i)’s relevance by urging that “‘[t]he views of a subse- quent Congress form a hazardous basis for inferring the intent of an earlier one.’” Gov’t Br. 30 (quoting Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 840 (1988)). To the contrary, even where a provision is added by amendment, this Court interprets the resulting statute as if it had read that way from the outset. United States v. LaF ranca, 282 U.S. 568, 576 (1931); Pet. Br. 30 (citing additional authority). It thus is not our view that Subsec- tion (i) “expand[ed] the statute’s coverage to other adminis- - trative proceedings.” Gov’t Br. 30; see also id. at 11, 33. It is that, regardless of how one might read Section 2415(a) in _ isolation, the statute as a whole—including Subsection (i)— makes it clear that Section 2415(a) extends to admini- strative actions except where, as in Section 2415(i) itself, Congress provides otherwise. C. Excluding Administrative Proceedings From Section 2415(a) Renders Its Effects Illusory The government, moreover, largely ignores one of the most fundamental defects in its construction—that it deprives Section 2415(a) of practical effect. 1. The government urges that, even if judicial actions founded on contract are barred by the limitations period, it may pursue precisely the same claims administratively in perpetuity. But that converts Section 2415(a) into a meaningless gesture. Section 2415’s primary purpose is to provide the repose Congress thought “required by modern standards of fairness and equity.” Sen. Rep. No. 1328, 89th Cong., 2d Sess. 2 (1966); see Pet. Br. 35-37. Under the * Indeed, once the government took such an administrative offset, the claimant could sue for any money withheld as a result. The government then could assert its claim as an offset in that judicial action without regard to the limitations period. See 28 U.S.C. § 2415(e). The govern- ment’s construction thus makes Section 2415(i) doubly superfluous. 12 government’s theory, however, Section 2415(a) would pro- tect against actions in court after six years, but leave indi- viduals exposed to the same liabilities for the same claims before the agency in perpetuity. That is no repose at all. Worse still, the individual could also be liable for decades of interest, based on a disputable “clarification.” See Pet. Br. 38-40. As the Office of Legal Counsel observed when inter- preting Section 2415(a), “if the United States could adminis- tratively collect time-barred debts where no claim was filed against it, this would result in a completely ineffective statute of limitations” and “the repose intended by § 2415 would be illusory.” Effect of Statute of Limitations on Administrative Collection of United States Claims, Mem. Op. Off. of Legal Counsel 7-8 (Sept. 29, 1978). Far from denying that result, the government embraces it—and urges that it can bring judicial actions in perpetuity as well. According to the government, “administrative pro- ceedings * * * trigger the limitations period; they are not ‘actions’ governed by it.” Gov’t Br. 15 (emphasis added). The government thus does not merely claim that it can col- lect contract damages at any point in the future through an administrative action. It also claims that it can wait until the limitations period expires, file an administrative action, and then file a judicial action one year after the administra- tive action terminates. The government thus argues that, despite the six-year limitations period, it has forever to bring administrative actions, and forever plus a year to file in court. “It is an elementary rule of construction that ‘the act cannot be held to destroy itself.’” Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 20 (1995) (quoting Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907)). Yet that is precisely the effect of the government’s construction. 2. The government’s construction also destroys the other “salutary effect(s}”’ Congress intended Section 2415(a) to have. Pet. Br. 4 (quoting Sen. Rep. No. 1328, supra, at 2). A statute of limitations increases government- al efficiency by forcing agencies to pursue claims “at a 13 sufficiently early time so that necessary witnesses, docu- ments, and other evidence are still available * * * .” Sen. Rep. No. 1328, supra, at 12. It avoids “judicial hostility to old claims” and “minimizes * * * collection problems arising with respect to debtors who have died, disappeared, or gone bankrupt.” Jbid. If agencies know they can recover admin- istratively indefinitely—with interest~any incentive for prompt prosecution is lost. Thus, while amici stress that Indian Tribes “rely on MMS to perform its royalty enforce- ment duty consistent with the United States’ trust responsi- bility,” Br. Amici Jicarilla Apache Nation, et al. 26-27 (“Jicarilla Br.”), Congress determined that the government performs that duty best when confronted with the discipline provided by an enforceable limitations period. Implicitly acknowledging that its construction defeats Section 2415(a)’s purposes, the government asserts that ap- peals to “general policies of fairness and repose” cannot overcome statutory text. Gov’t Br. 35 (quoting Pet. App. 20a). But the issue is not policy. It is statutory meaning. The government asks this Court to reject a proper textual construction adopted by two courts of appeals in favor of one that defeats every single one of Congress’s stated purposes in enacting the statute. The rules of construction will not tolerate that result. See Griffin v. Oceanic Contrs. Inc., 458 U.S. 564, 575 (1982) (“absurd results are to be avoided” where “alternative interpretations consistent with the legislative purpose are available”); Neder v. United States, 527 U.S. 1, 15 (1999) (Court is “entitled to stand back and see” the practical impact of its decisions). For related reasons, the government’s claim that “[pleti- tioners mostly avoid Section 2415(a)’s legislative history,” Gov’t Br. 29, is misdirected. That history—which carefully documents each purpose underlying Section 2415(a)—is discussed in detail in our opening brief. Pet. Br. 3-4, 35-38. And, as we explained, the government’s construction is at 14 war with each purpose identified in the legislative history. Id. at 35-38. On that issue, little more need be said.” 3. The government’s construction, moreover, wreaks havoc with Section 2415’s structure. Throughout Section 2415, Congress established stricter limits for the offensive assertion of government claims (claims to extract money from others) than for their defensive assertion (to avoid paying money) by an offset or otherwise. Pet. Br. 31-32. The government’s construction, however, would set that careful structure on its head. Under it, offensive judicial actions to extract money would be subject to a six-year limi- tations period, 28 U.S.C. § 2415(a); administrative offsets to withhold money otherwise payable would be subject to a longer 10-year statute of limitations, 31 U.S.C. § 3716(e)(1) (expressly referenced in 28 U.S.C. § 2415(i)); but offensive administrative actions to extract money would be subject to no limitations period whatsoever. See Pet. Br. 31-32. The government never explains why Congress would have adopted that irrational structure.® The government’s construction also destroys the congru- ence that Congress, on two separate occasions, established between the limitations period and the record-retention period for oil and gas lessees. See Pet. Br. 32-33. The gov- * Rather than examine the legislative history, the government cherry- picks references to “suits” or “civil actions.” Gov't Br. 27-29. Those references prove that Congress understood Section 2415(a) to cover judicial actions, but they do not prove that Congress meant to exclude administrative actions; nor does anything else. In any event, to the extent legislative history is relevant, it must give courts an under- standing of the problem Congress confronted and the legislation’s purposes. The government’s position cannot be reconciled with either. * The government hypothesizes that “affirmative administrative actions” sometimes “may be limited by context-specific limitations periods.” Gov’t Br. 33 n.9 (emphasis added). But Section 2415(a) was designed as a catch-all for situations in which Congress has not enacted context- specific limitations periods—it applies “except as otherwise provided.” 28 U.S.C. § 2415(a) (emphasis added). The government never explains why that structure is rational in a catch-all either. 15 ernment does not dispute that its construction-has that effect. Instead, it dismisses the notion that lessees will feel bound to retain pre-1996 records in perpetuity, asserting that “the lawful destruction of records would make the issuance of an order to pay unlikely.” Gov't Br. 40. That attempted reassurance provides little comfort where, as here, liability can run into the tens or hundreds of millions of dollars; where, as here, the government claims the ability to detect underpayments well into the past; and where, as here, older claims are more valuable to the government because it can collect decades of interest. Pet. Br. 38-40. The government’s effort at reassurance, in any event, is hardly license to adopt a construction that destroys the co- herence and symmetry of the statutory scheme—including the matching of record retention obligations and limitations perioas—-that Congress intended. Finally, the government’s construction destroys the sym- metry Section 2415 sought to establish between the govern- ment and private litigants. Section 2415 is “a statute aimed at equalizing the litigative opportunities between the Gov- ernment and private parties.” Crown Coat Front Co. v. United States, 386 U.S. 503, 521 (1967). Yet the govern- ment would construe Section 2415(a) to give private entities six years to bring their claims, 28 U.S.C. § 2401; 41 U.S.C. § 605(a), while giving the government forever to bring its claims administratively. The government argues that sym- metry “has little application to administrative proceedings that only the agency can initiate, and in which the agency is charged with interpreting then-governing statutes and regulations.” Gov't Br. 36. That might be true for genuine “regulatory” proceedings, such as rulemakings or discipli- * MMS retains certain reports on royalties “indefinitely,” Jicarilla Br. 14 n.9, and the government itself asserts that “audits ean detect systematic underpayment dating back more than six years,” Gov't Br. 37. Of course, what the government calls a “systemic underpayment” may merely result from MMS’s after-the-fact “clarification” of how it inter- prets its rules. See Pet. Br. 39-40. 16 nary proceedings. But Section 2415 addresses “action{s] for money damages *** founded upon *** contract.” 28 U.S.C. § 2415(a). When the government pursues an action for money damages, its claims “are almost indistinguishable from claims made by private litigants.” Sen. Rep. No. 1328, supra, at 2. Yet the government would destroy the sym- metry between private parties and the government that Congress sought to establish. D. The Canon Of “Strict Construction” Does Not Counsel A Contrary Result Ultimately, the government concedes that “the statutory terms ‘action’ and ‘complaint’ are sometimes used to refer to administrative proceedings.” Gov't Br. 18. It urges, however, that “the canon requiring strict construction of limitations periods against the government counsels against giving those terms a broader reading here.” Jbid. But “strict construction” does not require this Court to ignore the inherent breadth of a statutory term: “The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings * * *; but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.” SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 355 (1943) (quoting United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1867)). “[S}trict construction” simply means that the scope of a statute cannot be “enlarged * * * beyond what the language requires.” United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992). This Court has for that reason rejected strict construc- tion arguments in circumstances nearly indistinguishable from those here. In Bowers v. New York & Albany Light- erage Co., 273 U.S. 346 (1927), the Court addressed whether a statute of limitations barring the United States from initi- ating a “suit or proceeding for the collection of * * * taxes” after five years applied to the government’s use of the 17 administrative procedure of “distraint.” Jd. at 348 & n.1. The government argued that the statute of limitations did not apply to distraint because “the word ‘proceeding’ refers only to a proceeding in court.” Jd. at 349. The government also asserted that, under the canon of “strict construction,” “any ambiguity in the clause under consideration must be resolved in [its] favor.” Jbid. The Court agreed that it was required to apply a strict construction, but rejected the government’s reading. The Court observed that the language at issue was sufficiently broad “and commonly used to comprehend steps taken in” both “judicial proceeding{s]” and “executive proceeding{s].” 273 U.S. at 349. The Court further noted that the govern- ment’s reading of the statute was “inconsistent” with statu- tory text because it would render another provision of the statute superfluous. /d. at 351. And finally, the Court not- ed that, even in the context of “strict construction,” it was required to examine “the terms and purpose of the statute”: The purpose of the enactment was to fix a time beyond which * * * collection might not be initiated. The repose intended would not be attained if suits only were barred, leaving the collector free at any time to proceed by distraint. *** The mischiefs to be remedied by setting a time limit against distraint are the same as those eliminated by bar against suit. Id. at 349. Accordingly, the Court held that “the meaning of ‘proceeding’ * * * cannot be restricted to steps taken in a suit; it includes as well steps taken for collection of taxes by distraint.” Jd. at 352. Each of the reasons the Court gave for rejecting the government’s argument in Bowers applies with equal force here. Here, as in Bowers, the relevant terms are commonly used in reference to both administrative and judicial actions. Here, as in Bowers, the government’s proposed construction would render a provision of the statute super- fluous. And here, as in Bowers, excluding administrative proceedings from the scope of the statute of limitations 18 would completely undermine Congress’s purpose in enact- ing the statute, which was to provide repose. Simply recog- nizing that the text and purpose of Section 2415 encompass administrative proceedings in addition to judicial proceed- ings does not violate the canon of “strict construction.” - E. Amendments To The Mineral Leasing Act Do Not Support the Government’s View 1. The government and its amici also argue that two amendments to the Mineral Leasing Act (“MLA”)— FOGRMA in 1982 and FOGRSFA in 1996—“{dJemonstrate that Section 2415(a) [djoes not [a]pply to MMS [o]rders to [pjay [rjoyalties.” Jicarilla Br. 11; Gov’t Br. 36-39. They first assert that FOGRMA “was intended to provide [] more rigorous enforcement,” Jicarilla Br. 12, and directed MMS to “audit and reconcile, to the extent practicable, all current and past leases of oil or gas and take appropriate actions.” 30 U.S.C. § 1711(c)(1); Gov't Br. 36. They thus assert that FOGRMA “hardly manifests an intent to limit liability.” Gov't Br. 36. But amendment of the MLA to provide more “rigorous enforcement” in 1982 provides no insight into the scope of a general statute of limitations enacted in 1966. FOGRMA does not address Section 2415(a), or the limi- tations period for administrative actions for royalties.’ Where the “later law[] * * * ‘dofes] not seek to clarify an earlier enacted general term’ and ‘dofes] not depend for [its] effectiveness upon clarification * * * of an earlier stat- ute,” that later law is “‘beside the point’ in reading the first enactment.” Gutierrez v. Ada, 528 U.S. 250, 257-258 (2000). The direction to the MMS to “audit and reconcile” accounts, moreover, is limited by the phrase “to the extent practica- ble.” It hardly licenses MMS to bring stale actions that, because of a time bar, are clearly impracticable. ° Both the government and amici note that FOGRMA established a limitations period for penalties, 30 U.S.C. § 1755, but not “orders directing a lessee to pay past-due royalties.” Gov't Br. 37 n.11; see Jicarilla Br. 13. But that shows that Congress saw no need to address royalty payments, which were already covered by Section 2415(a). 19 The government’s concerns about “rigorous enforce- ment” boil down to the complaint that six years is not enough time because it must conduct audits before com- mencing actions. Gov't Br. 38-39. That assertion, better addressed to Congress, is meritless. Six years is a generous period; when Congress enacted a prospective limitations period for certain MMS actions in FOGRSFA, it gave the government just one more year, for a total of seven. 30 U.S.C. § 1724(b)(1). That belies the government’s current claim that “rigorous enforcement” requires it to have infin- ite time. Infinite time horizons are, in any event, the enemy of rigorous enforcement, because they give the government no reason to proceed with appropriate diligence. 2. The Jicarilla Tribe also argues that FOGRSFA’s amendment to the Mineral Leasing Act to create a prospec- tive limitations period for certain MMS orders “indicates that Congress in 1996 did not unverstand the general stat- ute of limitations in Section 2415(a) to apply to MMS admin- istrative orders.” Jicarilla Br. 15; see p. 5-6, supra. That inference is unfounded. When Congress enacted that provi- sion, the courts were divided on whether Section 2415(a) applied to administrative actions.'' By acting prospectively, Congress at most declined to resolve that dispute. Far from agreeing with the MMS and those courts that held Section 2415(a) to be inapplicable, Congress found “serious problems with the way” those “courts and conse- quently the MMS have interpreted the time within which collection of amounts due * * * can be undertaken.” Feder- “ Contrast Hanover Ins. Co., 82 F.3d at 1055 (“Section 2415(a) applies to administrative actions”), and Glenn Elec. Co. v. Donovan, 755 F 2d 1028, 1031 (3d Cir. 1985) (observing that the district court’s “well-reasoned opinion” had held that “the proper limitation period” for the admini- strative actions “was the general six-year period prescribed in 28 U.S.C. § 2415(a)”), with Phillips Petroleum Co. v. Johnson, No. 93-1377, 1994 WL 484506 (5th Cir. Sept. 7, 1994) (limitations period inapplicable to administrative action), and Samedan Oil Corp. v. Deer, No. Civ. A. 94- 2123, 1995 WL 431307 (D.D.C. June 14, 1995) (same). 20 al Oil & Gas Royalty Simplification and Fairness Act of 1995: Report of the S. Comm. on Energy and Natural Res., 104th Cong., 2d Sess. 14 (1995). Cases like Samedan and Phillips, which “held no statute of limitations applies,” Congress declared, “compel enactment” of a new limitations period. Seven-Year Balanced Budget Reconciliation Act of 1995: Report of the House Comm. on the Budget, 104th Cong., 1st Sess. 571 (1995). That Congress enacted a pro- spective limitations period for oil and gas leases to rectify the “serious problems” created by court and MMS decisions hardly suggests that Congress agreed with those decisions. Congress’s decision to act prospectively, moreover, is consistent with the expectation that this Court would even- tually hold that Section 2415(a) does apply here. By acting prospectively, Congress avoided the constitutional issues that arise when a new, longer limitations period is enacted and made applicable to claims that, under the prior limita- tions period, were already barred. See, e.g., Jn re Enter. Mortgage Acceptance Co. Sec. Litig., 391 F. 3d 401, 410 (2d Cir. 2005) (holding that “the resurrection of previously time-barred claims” is “impermissibl[y] retroactive”). Be- sides, where there is no limitations period for past claims, Congress generally makes the new statute of limitations applicable to those claims too, while protecting claimholders by deeming such claims to have accrued on the day the new statute of limitations is enacted. That is precisely what Congress did when it enacted Section 2415(a). Pet. Br. 6, 44. That Congress did not do likewise in FOGRMA is evidence that such claims were already subject to a limita- tions period—not that Congress intended those claims (but not later-accruing claims) to persist in perpetuity. se *# For the foregoing reasons and those set forth in petitioner’s opening brief, the judgment of the D.C. Circuit should be reversed. aE OO —— Respectfully submitted. MICHAEL L. HOMEYER STEVEN R. HUNSICKER BP AMERICA INC. Counsel of Record -s West — a JEFFREY A. LAMKEN ouston, Texas MICHAEL G. PATTILLO, JR. (281) 366-3772 STEPHANIE DOURADO GUILLERMO CHRISTENSEN BAKER Botts L.L.P. 1299 Pennsylvania Ave., NW Washington, D.C. 20004-2400 (202) 639-7700 Counsel for Petitioner SEPTEMBER 2006 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0233%3A12. Public record. Not legal advice.