OXY USA, Inc. v. Babbitt

268 F.3d 1001, 2001 WL 1205286

Opinions

ON REHEARING EN BANC

BRORBY, Circuit Judge.

The issue before the en banc court is straightforward: Does the six-year statute of limitations provided by 28 U.S.C. § 2415(a) govern Mineral Management Service (MMS) orders directing oil and gas lessees to pay additional royalties on production procured prior to September 1, 1996? ¹ We hold it does.

BACKGROUND

In December 1996, the MMS issued an order directing OXY USA, Inc. (OXY) to pay additional royalties of $551,693.26, plus interest, for oil production from federal onshore and offshore leases in California for the period January 1980 — September 1983.² OXY brought suit seeking, inter alia, a declaration the government’s claims were time-barred under 28 U.S.C. § 2415(a). The district court granted OXY summary judgment based on statements from Phillips Petroleum Co. v. Lujan, 4 F.3d 858, 860 & n. 1 (10th Cir.1993) (“Phillips III"), indicating that § 2415(a) does, indeed, bar belated MMS orders.³ The government appealed. A divided panel of this court reversed, holding (1) the remarks in Phillips III concerning the applicability of 28 U.S.C. § 2415(a) are dicta, and (2) § 2415(a) is inapplicable because the MMS orders OXY challenges are not “actions” under that provision. OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1185-90 (10th Cir.2000).

We granted Petition for Rehearing in consolidated appeals, including Shell Oil Co. v. Babbitt, Nos. 98-5252 & 99-5098. As a result of settlement, we subsequently dismissed the Shell Oil cases by Order dated March 21, 2001. By that same Order, we agreed to treat the briefs, filed in the Shell Oil cases as amicus briefs in this, the remaining appeal, OXY USA Inc. v. Babbitt, No. 98-5222.⁴

ANALYSIS

28 U.S.C. § 2415(a) provides in pertinent part:

Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later....

(emphasis added.) The Government argues (1) § 2415(a) limits the time within which the MMS may commence a judicial action (i.e., a lawsuit) to recover royalties, but not administrative collection proceedings; and (2) even if we determine the MMS order to pay constitutes an “action” under § 2415(a), it is not an action founded on contract, does not seek money damages, and is encompassed by the “otherwise provided by Congress” exception.⁵

Reviewing this matter de novo,6 we conclude the statutory language, together with a forthright statutory scheme and purpose, clearly instruct that the six-year statute of limitation under 28 U.S.C. § 2415(a) applies to the MMS orders in this case.

“Every Action”

We decipher what constitutes “every action” affected by § 2415(a) by considering the language and structure of the statute as a whole. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir.) (citing Dole v. United Steelworkers of America, 494 U.S. 26, 41, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990)), cert. denied, 528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 42 (1999). Although we are instructed to strictly construe any statute of limitation sought to be applied to bar rights of the Government, see Badaracco v. Commissioner of Internal Revenue, 464 U.S. 386, 391, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984), we are not authorized to contort the language or structure of a statute of limitations in order to reach a result favorable to the government.

The phrase “every action” is patently broad, and is expressly limited in scope only by reference to the possibility of a specific exception “otherwise provided by Congress.” 28 U.S.C. § 2415(a). Congress’ subsequent reference to the filing of a “complaint” within six years cannot fairly be read to limit this broad language to formalized judicial proceedings in light of (1) the statute’s obvious purpose to level the playing field between the government and private litigants by forcing the government to promptly assert its claims; and (2) a reading of the entire text of § 2415, including subsections (f) and (i), which evidence Congress’ desire to deal with extrajudicial agency actions as well as judicial actions.

The express purpose of 28 U.S.C. § 2415(a) was to establish a general statute of limitations on contract claims asserted by the government or a government agency. Congress believed the imposition of a limitations period on government claims would compel government agencies to assert their claims promptly, thereby putting the government in a position more nearly equal to that of private litigants. See S.Rep. No. 89-1328, at 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2503-04; see also United States v. Hanover Ins. Co., 82 F.3d 1052, 1055-56 (Fed.Cir.1996); Phillips III, 4 F.3d at 863 (“The legislative history in support of § 2415(a) indicates Congress was motivated in part by notions of fairness and equity in government dealings with private litigants, and further motivated to reduce the costs of record keeping and encourage prompt agency actions on claims.”)- In the words of the Federal Circuit,

[TJhe clear purpose of Congress in passing [section 2415] was to promote fairness to parties defending against stale Government contract and tort claims notwithstanding whatever prejudice might accrue thereby to the Government as a result of the negligence of its officers.

S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 8 (Fed.Cir.1985) (footnote omitted). An interpretation of § 2415 permitting federal agencies to avoid the limitation period by utilizing administrative orders to collect monies owed under contract obviously would thwart this purpose. An interpretation of § 2415 encompassing such administrative orders within the phrase “every action” obviously serves this purpose. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (giving preference to a reasonable alternative interpretation consistent with legislative purpose over an interpretation that would produce absurd results).

The structure of § 2415 as a whole further advocates a broad interpretation of the phrase “every action.” To elaborate, subsection (f) includes two narrowly drafted exceptions to the time-bar, permitting the government to defensively assert time-barred claims by way of offset or counter claim. 28 U.S.C. § 2415(f). Section 2415(i), added in 1982, expressly exempts administrative offsets from the six-year limitations period set forth in § 2415(a). 28 U.S.C. § 2415(i); see also S.Rep. No. 97-378, at 16 (1982), reprinted in U.S.C.C.A.N. 3377, 3392 (explaining that § 2415(i) “allows collection of delinquent debts owed the government by administrative offset beyond the six-year statute of limitations”). We agree with the Federal Circuit that these provisions demonstrate Congress intended for § 2415(a) to encompass more than the filing of a “complaint” in court. See Hanover Ins. Co., 82 F.3d at 1055 (“Administrative offset is not a judicial action. Thus, Congress has considered and dealt not only with judicial actions in section 2415, but with extra-judicial agency actions as well.”). More important, if Congress did not intend § 2415(a) to apply to administrative proceedings, then § 2415(i) arguably is superfluous. We must avoid, whenever possible, a statutory interpretation that would “render superfluous other provisions in the same enactment.” Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 877, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (quotation marks and citation omitted).

In sum, the language, purpose and structure of § 2415 manifest Congress’ clear intent to impose a limitations period on administrative as well 'as judicial claims for unpaid royalties. Congress gave no indication agencies are free to assert their claims at any time by means other than court actions, unencumbered by the six-year limitation period. As Judge Brown so aptly noted in his dissent to the panel opinion, “excluding administrative collection proceedings from the definition of ‘action’ leads to irrational results and permits government agencies to evade the statute of limitations through procedural gimmickry.” OXY USA, 230 F.3d at 1193. We are confident Congress did not intend § 2415 to be the means to this irrational end. The MMS order to pay royalties is an “action” under 28 U.S.C. § 2415(a).

“Founded on Contract ”

We summarily reject the government’s argument that actions to collect royalties under federal oil and gas leases are not based on contract. We have long-recognized that oil and gas leases are contracts. Phillips III, 4 F.3d at 860 n. 1 (citing Reese Exploration, Inc. v. Williams Natural Gas, 983 F.2d 1514, 1518-19 (10th Cir.1993)). The government itself has long recognized that the obligation of private entities to pay oil and gas royalties to the federal government derives from the execution of a valid federal lease. See Appellant’s Opening Brief, Statement of Facts, at 5 (“All [federal and Indian] mineral leases provide for the payment of royalties.”); Memorandum, “Time for Commencing Actions to Collect Royalties, Rents, or Other Payments,” from Frederick N. Ferguson, Ass’t Solicitor, Division of Minerals, to Chief, Conservation Division, Geological Survey at 1-2 (May 10, 1974) (“Royalties are collected by the Geological Survey pursuant to leases.... In all cases, the rights of the government as lessor and the rights of the lessee are embodied in a lease. A lease is a contract, and failure of the lessee to pay rent or royalties when due gives the lessor an immediate right to sue for breach. The usual remedy for breach of contract is money damages.”) The fact that the Secretary of the Interior administers federal oil and gas leases through the MMS, applying applicable royalty assessment (valuation) and collection regulations promulgated in accordance with the Federal Oil and Gas Royalty Management Act, 30 U.S.C. § 1701 et seq., and other mineral leasing statutes, simply does not change the contractual underpinnings of the lessee/lessor relationship or the legal source of the royalty payment obligation MMS seeks to enforce. Moreover, the issue and facts in this case are easily distinguished from those addressed in the cases the government cites in support of its argument that the payment of royalties is founded primarily on statutes and regulations. See Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed.Cir.1994) (answering threshold jurisdictional and sovereign immunity questions, the court concluded that plaintiff/property owner suing to compel the Department of Housing and Urban Development to calculate Housing Assistance Payments contract rent in accordance with federal housing regulations sought “judicial interpretation of a federal regulation,” not “declaratory relief in the performance of a contract”); Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 609 (D.C.Cir.1992) (characterizing savings and loan association’s suit challenging the Office of Thrift Supervision’s minimum capital requirements as an action for injunctive and declaratory relief, not money damages, and recognizing “[t]he answer to the sovereign immunity and jurisdiction questions depends not simply on whether a case involves contract issues, but on whether, despite the presence of a contract, plaintiffs’ claims ... stem from a statute or the Constitution”). Accordingly, we hold the MMS royalty collection action is founded on contract.

“Money Damages ”

According to the MMS, quoting an unpublished decision from the Fifth Circuit, orders directing lessees to pay royalties “seek monies due under a contract with the government. Such contractual obligations cannot be considered compensatory,” and “are therefore not barred by the limitations period of § 2415.” Apt. Br. at 28-29 (quoting Phillips Petroleum Co. v. Johnson, 1994 WL 484506 (5th Cir., Sept.7, 1994) (unpublished disposition) (Phillips IV)). We disagree with this narrow construction of the phrase “money damages” as used in 28 U.S.C. § 2415.⁷

We first note the apparent incongruity of the government’s argument the royalties they seek by way of an administrative order-to-pay are not founded on contract, and its use here of unpublished Fifth Circuit authority referring specifically to royalties as “monies due under a contract” and “contractual obligations.” Phillips IV, 1994 WL 484506 at *1. In any event, however, the Fifth Circuit rationale, based on its reading of Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), is neither binding nor persuasive.

The Supreme Court in Bowen concluded that the phrase “relief other than money damages,” as used to waive sovereign immunity under the Administrative Procedure Act, 5 U.S.C. § 702,⁸ encompassed suits for the enforcement of statutory mandates, notwithstanding that the mandate “happens to be one for the payment of money.” 487 U.S. at 900 (determining that an action against the government seeking declaratory and injunctive relief from an order disallowing Medicaid reimbursement was not an action for “money damages” under 5 U.S.C. § 702). This is not an action to enforce a statutory mandate. For the reasons stated above, it is an action on contract to enforce royalty payment obligations under a federal oil and gas lease. An award of damages is the common form of relief for breach of contract. E. Allan Farnsworth, Farnsworth on Contracts § 12.8, at 871 (2d ed.1990); Memorandum, “Time for Commencing Actions to Collect Royalties, Rents, or Other Payments,” from Frederick N. Ferguson, Ass’t Solicitor, Division of Minerals, to Chief, Conservation Division, Geological Survey at 1-2 (May 10, 1974) (“A lease is a contract, and failure of the lessee to pay rent or royalties when due gives the lessor an immediate right to sue for breach. The usual remedy for breach of contract is money damages.”). Moreover, the MMS’ claims against OXY to collect royalties are substantively indistinguishable from other government claims to recover money owed under contracts governed by the limitations period in § 2415. See, e.g., United States v. Sackett, 114 F.3d 1050, 1052 (10th Cir.1997) (action to recover on defaulted Small Business Administration loans); Hanover, 82 F.3d at 1055-56 (custom duties owed under surety contract); United States v. Alvarado, 5 F.3d 1425, 1428 (11th Cir.1993) (claim for damages on a promissory note). We therefore hold the MMS order at issue constitutes an action for “money damages” under § 2415.

“Except as Oth&'wise Provided ”

Having established that the MMS’ efforts to collect royalties are, indeed, actions founded on contract for money damages, we shift our focus to whether, as the government suggests, such actions fall within the “except otherwise provided by Congress” exception to § 2415 by virtue of the mineral leasing statutes and the Federal Oil and Gas Royalty Management Act. The government’s argument on this point is difficult to distinguish from its argument that its administrative orders to pay royalties are based on statutes and regulations, not on contract. The government apparently believes that because Congress has enacted specific statutes governing oil and gas royalty assessment and collection, it never intended the general, six-year statute of limitations in § 2415 to apply to MMS orders. We disagree.

To the extent the Federal Oil and Gas Royalty Management Act provides a specific statute of limitations that expressly supersedes the general statute of limitations at 28 U.S.C. § 2415, that limitations period (seven years) applies only to oil and gas production occurring after September 1, 1996. See notes to 30 U.S.C. § 1724. Furthermore, if Congress believed the Federal Oil and Gas Royalty Management Act and its regulatory regime otherwise superseded § 2415, it would not have needed to amend that Act to include a specific statute of limitations in 1996. See infra note 1; 30 U.S.C. § 1724(a); H.R.Rep. No. 104-667, at 14, 34 (1996) (noting “multiple conflicting statutes of limitation for suits to collect royalty payments” and conflicting court decisions led to the enactment of the seven-year limitations period); 142 Cong. Rec. S9677 (daily ed. Aug. 2, 1996) (statement of Sen. Nickles noting that differing court applications of the limitations period applicable to royalty collections had created a “climate of deep uncertainty in the payment of royalties”). When Congress included in § 2415 the language “except as otherwise provided by Congress,” it addressed the specific concern that § 2415 not “affect existing statutes of limitations.” S.Rep. No. 89-1328, reprinted in 1966 U.S.C.C.A.N. 2502. Prior to the 1996 Federal Oil and Gas Royalty Management Act amendments, there was no existing statute of limitations pertaining specifically to MMS royalty payment orders. The government’s attempt to seek refuge in the “except as otherwise provided” exception fails.

CONCLUSION

For the reasons set forth, we conclude the MMS’ demand that OXY USA, Inc. pay royalties going back to 1980 constitutes an action for money damages, founded on contract, and barred by 28 U.S.C. § 2415(a). We therefore AFFIRM the district court’s order granting summary judgment in favor of OXIY USA, Inc. and, in accordance with 10th Cir. R. 35.6, VACATE the panel decision, OXY USA, Inc. v. Babbitt, 230 F.3d 1178 (10th Cir.2000).

1 . The 1996 amendments to the Federal Oil and Gas Royalty Management Act include an express seven-year statute of limitations on MMS royalty demands, and make clear that 28 U.S.C. § 2415 does not apply to such claims. 30 U.S.C. § 1724(b)(1), (3). However, the 1996 amendments apply only to oil and gas production occurring after September 1, 1996. See notes to 30 U.S.C. § 1724. The circumstances in this case and any other case in which the MMS seeks additional royalties for oil and gas produced from federal leases prior to September 1, 1996 continue to present live controversies governed by our holding here.

2 . Federal oil and gas lessees typically meter and report their own production and calculate the appropriate royalty payment, subject to the MMS conducting a compliance audit. See 30 C.F.R. §§ 217.50, 218.50. The Federal Oil and Gas Royalty Management Act authorizes the Secretary of Interior to "audit and reconcile, to the extent practicable, all current and past lease accounts for leases of oil or gas and take appropriate actions to make additional collections or refunds as warranted.” 30 U.S.C. § 1711(c)(1). The administrative "order to pay” at issue resulted from MMS audits of OXY's California production and the MMS’ implementation of a new royalty computation method.

3 . The panel in Phillips III stated:

Both parties recognize, and we agree, that oil and gas leases are contracts. Thus, we likewise agree with the parties that 28 U.S.C. § 2415(a) is the controlling statute of limitations as it applies to "every action for money damages brought by the United States ... which is founded upon any contract.”

4 F.3d at 860 n. 1 (citations and emphasis omitted).

4 .We accepted amicus briefs in support of the petition for rehearing en banc from Union Oil Company of California, Independent Petroleum Association of America, National Mining Association, American Chemistry Council, American Petroleum Institute, Chamber of Commerce of the United States, American Tort Reform Association, National Association of Manufacturers, and Lawyers for Civil Justice.

5 . In its response to OXY's Petition for Rehearing and Request for Rehearing En Banc, the government recommenced its argument (in agreement with the majority panel opinion) that the statements in Phillips III concerning the applicability of 28 U.S.C. § 2415(a) are dicta. Because the en banc court may overrule the judgment of a three-judge panel, we need not determine whether the Phillips III statements are best characterized as dicta or binding precedent. C.f. In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (a panel is bound by the precedent of prior panels absent en banc reconsideration), cert. denied, 513 U.S. 807, 115 S.Ct. 53, 130 L.Ed.2d 13 (1994). Our en banc ruling in this case now constitutes the law of the circuit on this issue.

6 . As the panel correctly noted, we review a grant of summary judgment, as well as questions of law turning on. the interpretation and application of federal statutes, de novo. OXY USA, 230 F.3d at 1183; see also United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 718 (10th Cir.2000).

7 . The dissent's accusation that we ignore the phrase "for money damages brought by the United States,” as that phrase might limit the application of § 2415, is patently misplaced.

8 . Section 702 states, in relevant part:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. § 702.