United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2000 Decided February 15, 2000
No. 98-5508
Fort Sumter Tours, Inc.,
Appellant
v.
Bruce Babbitt,
Secretary of the Department of the Interior and
Robert G. Stanton, Director, National Park Service,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00293)
Peter Dickson argued the cause for appellant. With him
on the briefs were Paul F. Enzinna and Jody Manier Kris.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Wilma
A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: Silberman, Henderson, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Fort Sumter Tours, Inc. (FST)
provides passenger boat service to Fort Sumter National
Monument in Charleston Harbor, South Carolina. The ser-
vice is provided pursuant to a concession contract with the
Secretary of the Interior, through the National Park Service
(NPS or "Park Service"), under which FST pays the Secre-
tary an annual franchise fee. This case involves a dispute
over the fees charged during the second and third five-year
periods of FST's current contract. The district court rejected
FST's challenge to the fees, as do we. We conclude that this
court is without jurisdiction to consider plaintiff's attack on
the fee charged during the second contractual period, because
that challenge is to NPS' nonreviewable refusal to settle then-
pending litigation between the parties concerning that fee.
We reject plaintiff's attack on the fee charged during the
third contractual period because FST failed to comply with
the contractual requirements for seeking reconsideration.
I
FST's current, fifteen-year contract with the Park Service
was signed in 1986 and will expire in December 2000. The
contract is governed by the National Park System Conces-
sions Policy Act, 16 U.S.C. ss 20-20g,1 and Chapter 24 of
NPS' Concessions Guidelines, commonly referred to as NPS-
48 ("NPS-48") (Joint Appendix (J.A.) at 88-135). Under the
contract, FST must pay the Park Service an annual franchise
fee, which is a set percentage of plaintiff's annual gross
receipts. The fee is calculated to provide the concessioner
__________
1 In 1998, the Concessions Policy Act was replaced by the
National Park Service Concessions Management Improvement Act,
16 U.S.C. s 5951 et seq. The new legislation does not affect the
issues in this case.
with a reasonable profit, based on a comparison to rates of
return in similar industries. See 16 U.S.C. s 20b(d); NPS-48
(J.A. at 100). In evaluating a concessioner's reported net
profits, NPS may adjust reported expenses by comparing
them to industry statistics. See NPS-48 (J.A. at 126).
FST's 1986 contract is divided into three five-year periods.
During the first, the franchise fee was set at 4.25% of gross
receipts. Section 9(e) of the contract provides that the fee for
the second and third five-year periods may be reconsidered
on either party's initiative pursuant to specified procedures.
See J.A. at 32-33. This case involves efforts to reconsider the
fee charged during each of those two periods.
A
In June 1991, at the end of the first five-year period, the
Park Service notified plaintiff that it was reconsidering the
franchise fee. After an initial analysis, NPS tentatively con-
cluded that the appropriate fee should be 12%. That conclu-
sion was based on an examination of FST's financial reports,
which persuaded the Park Service that FST had leased one of
its boats from a related partnership in a deal that was "not an
arm's length transaction and has resulted in lower earnings
than would have occurred under an outright purchase of the
boat." See NPS Franchise Fee Analysis ( J.A. at 74). NPS
also found that FST overpaid its corporate officers relative to
benchmarks for the water transportation industry. See id. at
73. Plaintiff objected to the proposed fee increase, and
notified NPS that rather than arbitrate or negotiate the fee,
"we believe it is in our mutual interest to seek a declaration of
rights by the courts on this critical issue." Fort Sumter
Tours v. Babbitt ("FST I"), No. 0918-1AJ, slip op. at 3
(D.S.C. Feb. 3, 1994) (J.A. at 138). Having received notice of
FST's decision to forego arbitration and proceed to court, the
Park Service notified FST that it had made a final decision to
raise the fee to 12%.
On April 21, 1993, FST filed suit in the United States
District Court for the District of South Carolina, charging,
inter alia, that: (1) NPS lacked contractual or statutory
authority to increase the franchise fee; (2) the increase
violated the Administrative Procedure Act (APA), 5 U.S.C.
s 706, because NPS acted arbitrarily and capriciously in
employing the procedures it used to raise the fee; and (3)
imposition of a 12% fee violated the APA because it was
unjustified "by substantial evidence regarding the profits
earned by FST." FST I, slip op. at 4, 14 (J.A. at 139, 149).
The South Carolina District Court rejected all of plaintiff's
claims, finding the agency's procedures authorized and ration-
al, and holding that the 12% fee was "not so excessive as to
preclude a reasonable opportunity for [plaintiff] to earn a
profit from its concession." Id. at 11-21 (J.A. at 146-56).
Plaintiff appealed to the United States Court of Appeals for
the Fourth Circuit, which, after de novo review, upheld the
district court's decision. The Court of Appeals rejected
FST's contractual and APA challenges to the franchise fee,
finding that "NPS had both the statutory and the contractual
authority to raise FST's franchise fee.... [and that] the fee
determination itself [was] unobjectionable." Fort Sumter
Tours, Inc. v. Babbitt ("FST II"), 66 F.3d 1324, 1337 (4th Cir.
1995). On February 22, 1996, plaintiff petitioned the Su-
preme Court for a writ of certiorari.
During the week of March 10, 1996, while the petition for
certiorari was pending, FST's president, George Campsen,
Jr., approached NPS' Concessions Program Manager, Robert
Yearout, at a trade association meeting. Campsen asked
Yearout whether he was willing to discuss the franchise fee.
Although the parties dispute the contents of the ensuing
conversation,2 shortly after the meeting Campsen wrote Year-
out a letter. In it, Campsen noted that "the litigation was
ongoing" and that the "judicial process" was "time consuming
and expensive," and he suggested that it was "of mutual
interest that NPS and FST make a good faith attempt to
__________
2 Yearout contends he informed Campsen that, because the
matter was still in litigation, he could not make any commitments
without the approval of the Department of Justice. See Yearout
Decl. p 6 (J.A. at 174-75). Campsen says Yearout merely told him
he would be happy to look at any information Campsen wanted to
present. See Campsen Responsive Decl. p 5 (J.A. at 210).
resolve this matter." J.A. at 177-78. Campsen also ex-
pressed his appreciation for Yearout's "willingness to explore
the opportunity for some 'common ground' resolution." Id. at
177.
On May 10, 1996, Campsen and his son met with three
government officials: Yearout, an Interior Department attor-
ney, and a financial analyst for the Park Service. The parties
again dispute the contents of their conversation.3 Five days
after the meeting, the Interior Department attorney sent
Campsen a letter, thanking him for the opportunity to meet,
and concluding that "[b]ecause of the continuing litigation
... , any further correspondence on this matter will come
from John Douglas, Assistant U.S. Attorney." Id. at 187.
On May 28, 1996, the Supreme Court denied the petition
for certiorari. See Fort Sumter Tours, Inc. v. Babbitt, 116
S. Ct. 1848 (1996). In early June, the NPS financial analyst
traveled to South Carolina to meet with FST officials. On
July 1, 1996, shortly after the expiration of the 25-day period
for filing a petition for rehearing of the denial of certiorari,
Assistant U.S. Attorney Douglas sent FST's counsel a letter
advising plaintiff that "we have concluded that settlement
would not be in the interests of the United States." J.A. at
198.
B
While the litigation regarding the second contractual period
was winding to a close, so too was the second period itself.
Under section 9(e) of FST's concession contract, a party must
__________
3 NPS contends that agency counsel stated at the outset that
the purpose of the meeting was to "receive from FST information to
be considered by NPS for the purpose of possibly recommending to
the Department of Justice whether the Justice Department should
engage in settlement discussions regarding FST's pending lawsuit."
Hanslin Decl. p 5 (J.A. at 181). NPS also contends that Campsen
"stated that he understood and agreed as to this purpose." Id. p 6
(J.A. at 181). Campsen remembers no such statement by agency
counsel and denies making the statement attributed to him. See
Campsen Responsive Decl. pp 15, 16 (J.A. at 211-12).
request reconsideration in writing within sixty days of the
end of a five-year period. If no adjustment has been agreed
to within 120 days thereafter, the concessioner is required to
reduce its position to writing within thirty days and submit it
to the Secretary for a determination of appropriate fees. See
J.A. at 32.
On June 14, 1996, the day after the second period ended,
plaintiff wrote John Tucker, the superintendent of Fort Sum-
ter National Monument, requesting that, for the third period,
the 12% fee be reduced to the original 4.25%. See id. at 205.
On August 1, Tucker wrote back:
[W]e would be pleased to meet with you to discuss your
proposal in relation to the probable value of the contract.
We would propose a meeting in late September at which
our respective positions would be discussed.... I will
get back to you in a few weeks to discuss a meeting date.
Id. at 207. No further correspondence ensued, and no meet-
ing was held.
C
While the parties disputed the second- and third-period
franchise fees, FST refused to pay the increase and continued
to remit payments at the 4.25% rate. Between June 1993 and
June 1996, NPS sent FST five letters demanding payment of
past due amounts. See id. at 190-97. In December of 1996,
NPS presented FST with a debt compromise proposal for the
approximately $1 million in back fees, interest, and penalties
still due. FST counter offered. See id. at 200. On January
21, 1997, NPS rejected the counteroffer and notified FST that
if payment were not made by February 28, 1997, NPS would
terminate the contract. See id. at 203.
Plaintiff responded by filing the present lawsuit, which
challenged the Park Service's refusal to reduce the franchise
fee for the second and third contractual periods. At an early
hearing in the case, NPS advised the district court that a final
decision had not yet been reached regarding the third-period
fee, but that such a decision would be forthcoming. That
decision was made on March 31, 1997. NPS notified plaintiff
that the 12% fee would remain in effect because FST had
failed to reduce its final position to writing and submit it to
the Secretary by the date specified in the contract. Refer-
ring to section 9(e) of the contract, NPS' notification letter
stated:
As we did not come to agreement upon an adjustment of
the franchise fee by October 12, 1996, 120 days after
June 14, 1996, you had 30 days from that date, to
November 11, 1996, to reduce your position to writing
and to submit it to the Secretary for a determination of
an appropriate fee for the period commencing June 14,
1996. This you did not do. Likewise, you did not
request that advisory arbitration be initiated in connec-
tion with your request for reconsideration of the con-
tract's 12% franchise fee.
J.A. at 311-12.
Although Plaintiff's complaint raised multiple claims, only
two sets remain at issue on this appeal. In the first, FST
contended that the Park Service violated the APA by arbi-
trarily and capriciously refusing--in July 1996--to reduce the
second-period fee as requested by plaintiff. Granting sum-
mary judgment for defendants, the district court did not
reach the merits of this claim, but instead held that NPS'
refusal was judicially nonreviewable because it represented
nothing more than a refusal to settle the then-pending South
Carolina litigation. See Fort Sumter Tours, Inc. v. Babbitt
("FST III"), No. 97cv00293, slip op. at 12-16 (D.D.C. Aug. 28,
1998) (J.A. at 312-16). Plaintiff's second contention was that
NPS breached the concession contract, and acted arbitrarily
and capriciously, by refusing to reconsider the fee for the
third period. The court granted summary judgment for
defendants on that contention as well, holding that plaintiff
had failed to submit its request for reconsideration in accor-
dance with the procedures outlined in section 9(e) of the
contract. See id. at 16-18 (J.A. at 316-18). This appeal
followed.4
__________
4 Plaintiff's other claims challenged various NPS actions in
connection with the concession contract, on grounds ranging from
II
We begin with the dispute over the second-period fee.
Because the district court decided the issue on summary
judgment, our standard of review is de novo. See Hunter-
Boykin v. George Wash. Univ., 132 F.3d 77, 79 (D.C. Cir.
1998); see also Grant v. United States Air Force, 197 F.3d
539, 541 (D.C. Cir. 1999). The question before us, however, is
quite narrow. Needless to say, we have no authority to
review the decision of the Fourth Circuit, which upheld the
merits of NPS' initial decision to raise the franchise fee.
Plaintiff contends, however, that we may review NPS' July
1996 refusal to reconsider and lower the fee. The question
before us, then, is whether NPS' refusal is subject to judicial
review.
An agency's refusal to reconsider a prior decision is only
reviewable under limited circumstances. See ICC v. Brother-
hood of Locomotive Eng'rs (BLE), 482 U.S. 270, 278-81
(1987); Sendra Corp. v. Magaw, 111 F.3d 162, 166-67 (D.C.
Cir. 1997). It is true that "[i]f for any reason the agency
reopens a matter, and after reconsideration, issues a new and
final order, that order is reviewable on its merits." Sendra
111 F.3d at 167; see BLE, 482 U.S. at 278. Plaintiff contends
that NPS did reopen the fee issue in 1996. NPS, by contrast,
contends that it merely evaluated the issue for purposes of
deciding whether to settle plaintiff's South Carolina lawsuit,
and that the July 1996 letter from Assistant U.S. Attorney
Douglas represented a decision not to do so. FST does not
dispute that the Justice Department has sole authority to
settle lawsuits on behalf of the United States, see 28 U.S.C.
__________
breach of contract to violation of the APA. The district court
dismissed those claims pursuant to Fed. R. Civ. P. 12(b)(6), in some
instances because they were barred by the Fourth Circuit's decision
in FST II. See FST III, slip op. at 19, 22 (J.A. at 319, 322).
Plaintiff has not appealed from the dismissal of any claims other
than those discussed in the text.
ss 516, 519, and that a decision whether to settle a case like
FST's--if that is what occurred here--would not be reviewa-
ble under the APA, see Oral Arg. Tr. at 5. Cf. New York
State Dep't of Law v. FCC, 984 F.2d 1209, 1213-15 (D.C. Cir.
1993) (holding nonreviewable FCC decision to settle enforce-
ment action); Schering Corp. v. Heckler, 779 F.2d 683, 685-87
(D.C. Cir. 1985) (holding nonreviewable FDA decision to
settle and dismiss enforcement action).5
We agree with the district court that the July 1996 letter
represented a decision not to settle the litigation between the
parties. The government's initial written response to plain-
tiff's overtures, sent by Interior Department attorney Lars
Hanslin in May of 1996, made clear that the government was
undertaking to review the matter in connection with the then-
pending litigation. Hanslin advised FST that the Park Ser-
vice's consideration would be made "in consultation with
appropriate officials of the Department of Justice." J.A. at
187. And he emphasized that
Because of continuing litigation between Fort Sumter
Tours and the National Park Service, any further corre-
spondence on this matter will come from John Douglas,
Assistant United States Attorney. As I am sure you
appreciate, the National Park Service, because of the
litigation is not in a position to directly respond to the
concerns you have raised.
Id. (emphasis added).
The government's final decision letter, dated July 1, 1996,
makes the character of its determination even more manifest.
That letter, which is set out in relevant part in the
__________
5 Although there may be circumstances in which a substantive
statute places limits on an agency's settlement discretion, see New
York State Dep't of Law, 984 F.2d at 1215, no such argument has
been advanced concerning the Justice Department's litigation au-
thority here.
margin,6 was sent not by the agency, but by its Justice
Department counsel. It was sent not to FST itself, but to its
attorneys. Its subject-reference line indicated that the topic
was FST's lawsuit. The letter recited that the Park Service
had reviewed the franchise fees "with a view toward potential
settlement." Id. at 198 (emphasis added). And it informed
plaintiff's counsel that: "[W]e have concluded that settlement
would not be in the best interests of the United States." Id.
(emphasis added).
Notwithstanding the express language of the July 1996
letter, plaintiff contends that it represents the denial of a
__________
6 Marvin D. Infinger, Esq.
Sinkler & Boyd, P.A.
....
RE: Fort Sumter Tours, Inc. v. Bruce Babbitt
C/A No. 2:93-0918-1, District of South Carolina
No. 94-1570, Fourth Circuit Court of Appeals
No. 95-1353, Supreme Court
Dear Marvin:
As you no doubt know, the responsible officials at the Park
Service have recently engaged in a thorough review of the
franchise fees that were at issue in the above litigation, at the
instigation of your client, with a view toward potential settle-
ment. This review was undertaken with the full agreement
and cooperation of the Justice Department. After due consid-
eration of both the merits of your client's contentions and the
procedural posture of the case, we have concluded that settle-
ment would not be in the interests of the United States. I
would emphasize that this decision was based both upon the
review of the apparent fairness of the franchise fees imposed
and the fact that the Supreme Court has denied the writ of
certiorari which you had sought. This concludes my handling
of this case and I am closing my file on it at this time.
....
Sincerely yours,
....
John H. Douglas
Assistant U.S. Attorney
J.A. at 198-99 (emphasis added)
reopened administrative decision, rather than the rejection of
a settlement. FST proffers three related arguments. First,
it argues that the letter cannot represent a decision regarding
settlement because the South Carolina litigation had effective-
ly ended by the time FST made the March 1996 overture to
which the letter responded. All that remained pending at
that time was the petition for certiorari, which, FST suggest-
ed at oral argument, was not "cert. worthy." Oral Arg. Tr. at
11.
FST's argument is unpersuasive. While we raise our eye-
brows at plaintiff's admission that it filed a certiorari petition
knowing it was unworthy of Supreme Court review,7 the fact
remains that that petition was pending at the time FST's
president approached NPS' Concessions Program Manager
for reconsideration. Indeed, FST's March 15, 1996 letter
expressly noted that "the litigation is ongoing because ...
[FST] has petitioned the U.S. Supreme Court in the hopes of
judicially correcting what we perceive as a grave injustice."
J.A. at 177. Moreover, also pending at that time--and still
pending after the petition was denied--were NPS' efforts to
collect nearly a million dollars in unpaid fees, interest, and
penalties. As plaintiff itself later suggested, those, too, were
potentially part of a global settlement between the parties.
See id. at 201 (Dec. 31, 1996 letter from FST, proposing to
pay fees in arrearage at 5% and third-period fees at 6%).
Although plaintiff's self-assessment of its weak litigating posi-
tion turned out to be correct, that merely confirms the
wisdom of the government's ultimate decision not to settle; it
does not establish that the government never assessed the
situation on its own.
Second, plaintiff contends that the July 1996 letter reflects
an administrative reopening, rather than the rejection of a
settlement, because it recites that the Park Service engaged
in a "thorough review" of the franchise fees, considered "the
merits" of FST's contentions, and made its decision based in
part on a "review of the apparent fairness of the franchise
__________
7 See Oral Arg. Tr. at 11 ("This was not a cert. worthy case.
Anybody could have looked at it and decided that.").
fees imposed." J.A. at 188-89. According to FST, these are
indicators of a true agency reconsideration, not merely of a
decision whether to settle a lawsuit.
Once again, we find plaintiff's argument unpersuasive. The
fact that the agency considered the merits of plaintiff's posi-
tion can hardly serve to remove its decisionmaking from the
realm of settlement. Indeed, it would be extraordinary for
the government to make a settlement decision without consid-
ering the merits of the underlying dispute. And as we have
said more generally with respect to determining whether an
agency has truly reopened a prior decision: "That the agency
discusses the merits at length when it denies a request for
reconsideration does not necessarily mean the agency has
reopened the proceedings.... It would make no sense what-
soever to hold that when an agency offers an explanation for
'affirming a prior denial,' it has in effect reopened the pro-
ceedings and rendered a new, judicially-reviewable decision."
Sendra, 111 F.3d at 167 (quoting BLE, 482 U.S. at 281). The
Supreme Court has made precisely the same point:
It is irrelevant that the commission's order refusing
reconsideration discussed the merits of the unions' claim
at length.... [O]ne cannot intelligently rule upon a
petition to reconsider without reflecting among other
things, whether clear error was shown. It would hardly
be sensible to say that the Commission can genuinely
deny reconsideration only when it gives the matter no
thought; nor to say that the character of its action (as
grant or denial) depends upon whether it chooses to
disclose its reasoning. Rather, it is the Commission's
formal action, rather than its discussion, that is disposi-
tive.
BLE, 482 U.S. at 280-81
But, plaintiff continues, surely the inclusion of language
indicating the agency undertook a "thorough review" at least
renders the letter ambiguous. And, that being so, was not
summary judgment inappropriate, since on summary judg-
ment uncertainties are to be resolved in the non-moving
party's favor? See FST Br. at 26 (citing Adickes v. S. H.
Kress & Co., 398 U.S. 144, 157 (1970)). The answer is: not
these kinds of uncertainties. For the reasons just stated, the
"thorough review" language does not render the letter ambig-
uous. But even if it did, ambiguity as to whether the agency
had reopened its decisionmaking would not advance appel-
lant's cause. To the contrary:
Only "when the agency has clearly stated or otherwise
demonstrated" that it has reopened the proceeding will
the resulting agency decision be considered a new final
order subject to judicial review under the usual stan-
dards.... [U]nless the agency clearly states or indi-
cates that it has reopened the matter, its refusal of a
request for reconsideration will be treated as simply that.
Sendra, 111 F.3d at 167 (quoting Morris v. Sullivan, 897 F.2d
553, 558 (D.C. Cir. 1990)) (citations omitted) (emphasis add-
ed). Not even plaintiff contends that NPS "clearly" stated it
had reopened the matter.
Finally, plaintiff argues that it was error for the district
court to conclude that NPS' decision was a nonreviewable
settlement determination without first demanding that the
agency produce the full administrative record of the 1996
decision. Summary judgment was inappropriate, FST con-
tends, because there are factual disputes over what happened
at several meetings between the parties, see supra notes 2 &
3, and because NPS did not characterize its decision as one
involving settlement "until this suit was filed and then only in
the [form of] post hoc affidavits." FST Br. at 26.
We reject this argument as well. As the district court
held, while there may be factual disputes in this case, they
are not material to resolution of the issue at hand. Here we
have a formal decision document: the July 1, 1996 letter from
Assistant U.S. Attorney Douglas. That document is not "post
hoc." To the contrary, because it was a contemporaneous
communication of the agency's final determination, it is as
"hoc" as a document can be. The decision expressly commu-
nicated on the face of that document is: "[W]e have concluded
that settlement would not be in the interests of the United
States." J.A. at 198 (emphasis added). In such circum-
stances, both this court and the Supreme Court have held
that we should look no further. "Courts will not," we said in
Sendra Corp. v. Magaw, "look behind the agency's formal
disposition of the reconsideration request to see whether the
agency 'in fact' reopened its original decision (and thus ren-
dered a new final order)." Sendra, 111 F.3d at 167. "Where
the [agency's] formal disposition is to deny reconsideration,
and where it makes no alteration in the underlying order, we
will not undertake an inquiry into whether reconsideration 'in
fact' occurred." BLE, 482 U.S. at 280-81.
In sum, we agree with the district court that the July 1996
decision was a nonreviewable settlement determination. This
Circuit has recently held that the nonreviewability of a simi-
lar kind of agency decision is not simply a question of
deference to agency discretion, but of the absence of jurisdic-
tion. See Entravision Holdings, LLC v. FCC, No. 99-1025,
slip op. at 4 & n.* (D.C. Cir. 2000) (denial of reconsideration);
see also BLE, 482 U.S. at 282, 287. Accordingly, we must
vacate the judgment with respect to the claims regarding the
second contractual period, and remand with instructions to
dismiss those claims for lack of jurisdiction.
III
In its remaining set of claims, plaintiff contends that NPS'
refusal to reconsider the franchise fee for the third five-year
period breached the concession contract and was arbitrary
and capricious. NPS refused to reconsider on the ground
that, as it read the contract, FST had failed to comply with a
requirement that it submit a second written statement of its
position after 120 days had passed without agreement. The
district court found that the language of the contract unam-
biguously supported NPS' interpretation. See FST III, slip
op. at 17 (J.A. at 317). Because the ambiguity of a contract is
a question of law, our review is de novo. See Bennett Enters.,
Inc. v. Domino's Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir.
1995); LTV Corp. v. Gulf States Steel, Inc., 969 F.2d 1050,
1055 (D.C. Cir. 1992).
Like the district court, we believe the contract is clear and
that the government was entitled to enforce it according to its
terms. Section 9(e) states:
Within sixty (60) days after the end of each 5-year
period of this contract or as otherwise specified, at the
instance of either party hereto, the amount and character
of the franchise fees provided for in this section may be
reconsidered. Such request shall be made in writing
within 60 days after the end of the applicable contract
year but cannot be made before the end of such year. In
the event that the Secretary and the Concessioner cannot
agree upon an adjustment of the franchise fees within
120 days from the date of the request for renegotiation as
made by either party, the position of the Concessioner
must be reduced to writing within 30 days therefrom
and submitted to the Secretary for a determination of
appropriate fees....
J.A. at 32 (emphasis added). Thus, the contract requires that
if the parties cannot agree within 120 days from the date of
the original written request, the concessioner must again
reduce its position to writing within another thirty days and
submit it to the Secretary. It is conceded that no writing was
submitted after the passage of the 120-day period.
Plaintiff contends that its original request for a 4.25% fee
for the third period--submitted in its June 14, 1996 letter--
should be sufficient to satisfy the requirement of a writing.
As the district court noted, however, the contract plainly
"includes reference to two separate writings: a written re-
quest initiating the reconsideration process, and a written
summary of the concessioner's position to be submitted some-
time after 120 days, but no more than 150 days after the
original request, assuming the parties do not resolve the issue
earlier." FST III, slip op. at 17 (J.A. at 317). At bottom,
FST asks us to read the latter provision out of the contract--
a suggestion that is inconsistent with our general approach to
contract interpretation. See United States v. Insurance Co.
of N. Am., 83 F.3d 1507, 1511 (D.C. Cir. 1996) (noting the
"cardinal principle of contract construction: that a document
should be read to give effect to all its provisions") (quoting
Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
63 (1995)); see also YRT Servs. Corp. v. United States, 28
Fed. Cl. 366, 389 (1993) ("When interpreting the language of
a contract, a court must give reasonable meaning to all parts
of the contract and not render portions of the contract
meaningless.").
Nor is the provision at issue unimportant to the contract.
Section 9(e) channels fee disputes through a series of resolu-
tion points short of litigation. The second writing require-
ment compels the concessioner to reconsider its own position
and make a final offer, while at the same time ensuring that
the Secretary will have a last clear chance to negotiate a
settlement. FST chose to ignore that contractual require-
ment and resort directly to the courts (for a second time).
Like the district court, we find the contract unambiguous and
plaintiff's failure to abide by its terms fatal to its cause.8 Nor
do we find anything in the government's behavior inconsistent
with its duty to act in good faith when enforcing its rights
under a contract. See Solar Turbines, Inc. v. United States,
23 Cl. Ct. 142, 156-57 (1991).9
IV
For the forgoing reasons, we reject plaintiff's challenges to
the franchise fees the Park Service established for the second
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8 The district court further concluded that because NPS did not
reconsider the third-period fee, "there was no 'final agency action'
subject to review under the APA." FST III, slip op. at 18 (J.A. at
318). The government does not press this point on appeal, see NPS
Br. at 24, and we conclude that NPS' third-period decision is
reviewable. Notwithstanding the contract's use of the term "recon-
sideration" to describe the process for adjusting fees, the contract
essentially grants the concessioner the right to a new agency
decisionmaking for each five-year period, provided it follows the
requisite procedures. See J.A. at 32-33; see also 16 U.S.C.
s 20b(d). NPS' decision is therefore reviewable, although FTS'
appeal fails on the merits because plaintiff did not follow those
procedures.
9 This is not a case like Orange Cove Irrigation District v.
United States, 28 Fed. Cl. 790 (1993), cited by plaintiff, in which the
Court of Federal Claims held the government to have breached its
covenant of good faith and fair dealing by insisting on adherence to
an unreasonable deadline. There, the two-week deadline imposed
by the government was not contained in the contract, was imposed
without notice to the contracting party, and was so short as to make
it "almost certain" that compliance would be impossible. Id. at 801.
Moreover, the contracting party did comply "soon" after the dead-
and third periods of the concession contract. The judgment
with respect to the second contractual period is vacated and
remanded with instructions to dismiss those claims for lack of
jurisdiction. In all other respects the judgment below is
affirmed.
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line. See id. at 802. The situation here is different in every
respect.