Arch Coal, Inc. v. R. Alexander Acosta

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2018 Decided April 27, 2018

No. 17-5074

ARCH COAL, INC.,
APPELLANT

v.

R. ALEXANDER ACOSTA, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF LABOR AND DEPARTMENT OF LABOR,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00669)

Mark E. Solomons argued the cause and filed the briefs for
appellant. With him on the briefs was Laura Metcoff Klaus.

Daniel J. Aguilar, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Jessie K. Liu, U.S. Attorney, and Mark B. Stern, Attorney.

Before: MILLETT and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
 2
EDWARDS, Senior Circuit Judge: Arch Coal, Inc. (“Arch”)
appeals from an order of the District Court dismissing its
complaint for want of jurisdiction. Arch’s complaint seeks an
injunction and declaratory relief to block the Department of
Labor (“Department”) from pursuing administrative actions to
determine whether the company is obligated to pay benefits to
certain of its former employees under the Black Lung Benefits
Act (“BLBA” or “Act”), 30 U.S.C. §§ 901–45 (2012). The
District Court dismissed the complaint on the ground that the
BLBA “assigns exclusive jurisdiction” over Arch’s challenges
“to the Department’s administrative process and then the
relevant federal court of appeals.” Arch Coal, Inc. v. Hugler,
242 F. Supp. 3d 13, 18 (D.D.C. 2017). We agree and therefore
affirm the judgment of the District Court.

The BLBA grants coal miners the right to monthly benefits
payments from a former employer in the event they suffer from
black lung disease as a result of employment. The Department
sends a “notice of claim” to coal mine operators who are
potentially liable for benefits payments under the Act. See 33
U.S.C. § 919(b) (2012) (incorporated by 30 U.S.C. § 932(a));
20 C.F.R. § 725.407 (2017). A potentially responsible operator
may contest its liability before a District Director within the
agency, 20 C.F.R. § 725.408 (2017), request a formal hearing
before an administrative law judge (“ALJ”), id. §§ 725.419(a),
725.450–725.480, and receive review of the ALJ’s decision
before the Benefits Review Board (“Board”), 33 U.S.C.
§ 921(b)(3) (2012) (incorporated by 30 U.S.C. § 932(a)); 20
C.F.R. § 725.481 (2017). Final orders of the Board may then
be appealed to a U.S. court of appeals. 33 U.S.C. § 921(c).

On November 12, 2015, the Department issued a bulletin
to its staff, Bulletin No. 16-01 (“Bulletin”), instructing District
Directors to send notices of claims to Arch for certain black
lung benefits claims filed against a company that had acquired
 3
Arch’s BLBA liabilities. Arch then brought this action in the
District Court seeking to enjoin the administrative proceedings.
Arch alleged that it was not liable for the payments under the
BLBA and that the Bulletin violated the Administrative
Procedure Act (“APA”) as a legislative “rule” published
without notice and comment. The District Court concluded that
it lacked subject matter jurisdiction over these claims.

The BLBA’s comprehensive scheme of administrative
review, followed by judicial review in a court of appeals,
makes it clear that Congress implicitly precluded district court
jurisdiction over the claims to which the BLBA applies. See,
e.g., Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012); Thunder
Basin Coal Co. v. Reich, 510 U.S. 200, 207–09 (1994); Jarkesy
v. SEC, 803 F.3d 9, 16–17 (D.C. Cir. 2015). We therefore agree
with our sister circuits that “the scheme of review established
by Congress for determinations of black lung disability benefits
was intended to be exclusive.” Compensation Dep’t of Dist.
Five, United Mine Workers of Am. v. Marshall, 667 F.2d 336,
340 (3d Cir. 1981); see also Louisville & Nashville R.R. Co. v.
Donovan, 713 F.2d 1243 (6th Cir. 1983). Accordingly, Arch
must exhaust its administrative remedies and secure a final
order from the Board before it may seek review from this court.

I. BACKGROUND

A. Statutory and Regulatory Background

The BLBA imposes liability on coal mine operators for
payment of monthly benefits to coal miners who contract
pneumoconiosis, or black lung disease, from their employment
in the mines. See 30 U.S.C. §§ 922(a), 932(c). In order for an
operator to be held liable, it must have employed the miner for
at least one year and be “capable of assuming its liability for a
claim.” 20 C.F.R. § 725.494(c), (e) (2017). If the operator that
 4
most recently employed the miner is not liable, the miner’s next
most recent employing operator may be found responsible. Id.
§ 725.495(a)(3).

Congress created a comprehensive administrative scheme
to adjudicate benefits claims under the Act. See 30 U.S.C.
§ 932(a) (incorporating the procedures outlined in the
Longshore and Harbor Workers’ Compensation Act into the
BLBA). The process begins when a disabled coal miner or a
surviving dependent of a miner who died of black lung disease
files a claim with the District Director in the Department of
Labor’s Office of Workers’ Compensation Programs. See 20
C.F.R. §§ 725.303, 401 (2017). The District Director
investigates the claim to determine whether the claimant is
eligible for benefits and which employer, if any, is potentially
responsible under the BLBA. See id. §§ 725.401–423. If the
claimant is eligible for BLBA benefits but a potentially liable
operator cannot be identified, the benefits are paid from the
federally administered Black Lung Disability Trust Fund,
which is financed by a tax on coal. See 30 U.S.C. § 934; 26
U.S.C. § 9501(d)(1)(B) (2012). But if the District Director
identifies a potentially liable operator, the District Director
sends that operator a “notice of claim.” See 33 U.S.C. § 919(b)
(incorporated by 30 U.S.C. § 932(a)); 20 C.F.R. § 725.407(b).

Once the operator receives a notice of claim, it becomes a
party to the administrative proceedings. See 20 C.F.R.
§ 725.407(b). The operator may then contest its identification
as a potentially liable operator before the District Director, id.
§ 725.408(a)(1)–(2), and submit documentary evidence in
support of its position, id. § 725.408(b)(1). The District
Director may conduct an informal conference with the parties,
at which the parties have the right to representation. Id.
§ 725.416. The District Director may also “permit a reasonable
time for the submission of additional evidence following a
 5
conference.” Id. § 725.417(b). “Within 20 days after the
termination of all conference proceedings, the district director
shall prepare and send to the parties a proposed decision and
order” designating the responsible operator liable for the
payment of benefits. Id. § 725.417(c). That document “must
contain findings of fact and conclusions of law” in support of
any designation of a responsible operator. Id. § 725.418(b).

Either party may appeal the District Director’s decision and
request a formal hearing before an ALJ within thirty days. Id.
§§ 725.419(d), 725.450–725.480 (detailing hearing procedures
before the ALJ); 33 U.S.C. § 919(d). The ALJ must make a de
novo determination of the operator’s liability after a “fair
hearing” in which the parties and witnesses may testify; and the
ALJ “may entertain the objections of any party to the evidence
submitted.” 20 C.F.R. § 725.455(a)–(c) (2017). The ALJ’s
decision may be appealed to the Board, which is “authorized to
hear and determine appeals raising a substantial question of law
or fact.” 33 U.S.C. § 921(b)(3); 20 C.F.R. § 725.481. Once the
Board issues a final decision, an aggrieved party may obtain
judicial review of the “final order . . . in the United States court
of appeals for the circuit in which the injury occurred.” 33
U.S.C. § 921(c); see also 20 C.F.R. § 725.482 (2017).

B. Factual and Procedural History

Arch is a coal mining company that was formed in 1997.
The following year, Arch received the Department’s
authorization to self-insure against future BLBA liabilities. On
December 31, 2005, Arch sold three of its subsidiary coal
mining companies to Magnum Coal Company (“Magnum”).
Arch alleges that as part of that sale, Magnum agreed to assume
the BLBA liabilities of the three purchased subsidiary
companies. In 2008, Magnum was acquired by Patriot Coal
(“Patriot”).
 6

Patriot declared bankruptcy in May 2015. The bankruptcy
court approved the sale of Patriot’s coal-mining operations,
including Arch’s three former subsidiaries, to other companies.
That sale did not transfer Patriot’s liability for BLBA claims.

In response to Patriot’s bankruptcy, the Department’s
Office of Workers’ Compensation Programs issued Bulletin
No. 16-01 to its staff. See U.S. Dep’t of Labor, BLBA Bulletin
No. 16-01 (Nov. 12, 2015), available at
https://www.dol.gov/owcp/dcmwc/blba/indexes/BL16.01OC
R.pdf. The Bulletin’s purpose was “[t]o provide guidance for
district office staff in adjudicating claims in which the miner’s
last coal-mine employment of at least one year was with one of
the 50 subsidiary companies that have been affected by the
Patriot Coal Corporation bankruptcy.” Id. at 1. With respect to
newly filed claims against the former Arch subsidiaries, the
Bulletin instructs staff to “[d]etermine whether the claim is
covered by Arch Coal’s self-insurance or an Arch Coal
commercial insurance policy.” Id. at 3. “If commercial
coverage can be identified,” notice of the claim must be sent
“to the appropriate carrier.” Id. Where “no commercial
insurance can be identified, and the miner’s employment falls
within a period of Arch Coal’s self-insurance,” which
“generally requires that the miner last worked for the
subsidiary before January 1, 2006,” notice of the claim must be
sent to Arch Coal. See id.

Following distribution of the Bulletin, District Directors
sent Arch notices of claims. The notices reflect the
Department’s initial determination that Arch is potentially
liable for the claims of miners who worked for Arch during its
period of self-insurance. In April 2016, Arch filed this action
in District Court, seeking declaratory relief and an injunction
barring the Department from sending Arch notices of claims
 7
pursuant to the Bulletin, Compl. 22 ¶ 97, and from “imposing
on Arch Coal, Patriot’s liability for the black lung claims,” id.
at 18 ¶ 72. The Complaint alleges that the Bulletin was a
substantive “rule” and, as such, it should have been subject to
notice and comment under 5 U.S.C. § 553 of the APA and it
could not be retroactive. Compl. 16–19 ¶¶ 60–79. The
Complaint additionally alleges that the Bulletin violates the
BLBA and its implementing regulations by imposing liability
on “a pass-through owner,” and by not first “apply[ing]
Patriot’s self-insurance” assets to the claims. Id. at 20–22 ¶¶
80–97.

The Department moved to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(1) and (6), for lack of
subject matter jurisdiction and for failing to state a claim upon
which relief could be granted. On March 16, 2017, the District
Court granted the motion to dismiss for lack of jurisdiction,
holding that the BLBA “assigns exclusive jurisdiction” over
Arch’s challenges “to the Department’s administrative process
and then the relevant federal court of appeals.” Arch Coal, 242
F. Supp. 3d at 18–19. Arch then filed an appeal with this court.

II. ANALYSIS

A. Standard of Review

“We review de novo a dismissal for lack of subject matter
jurisdiction.” United States ex rel. Oliver v. Philip Morris USA
Inc., 826 F.3d 466, 471 (D.C. Cir. 2016). In so doing, we “must
accept the factual allegations in the complaint as true.” Sturm,
Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002).

B. Jurisdiction

As we explained in Jarkesy:
 8

Litigants generally may seek review of agency action
in district court under any applicable jurisdictional
grant.

If a special statutory review scheme exists,
however, it is ordinarily supposed that Congress
intended that procedure to be the exclusive means of
obtaining judicial review in those cases to which it
applies. . . .

Our analysis proceeds in accordance with the
two-part approach set forth in Thunder Basin Coal
Co. v. Reich. Under Thunder Basin’s framework,
courts determine that Congress intended that a
litigant proceed exclusively through a statutory
scheme of administrative and judicial review when
(i) such intent is fairly discernible in the statutory
scheme, and (ii) the litigant’s claims are of the type
Congress intended to be reviewed within [the]
statutory structure.

803 F.3d at 15 (citations and internal quotation marks omitted).
In this case, both considerations support our judgment that
Congress intended the BLBA’s statutory scheme to be
exclusive with respect to the claims to which the statute
applies.

1. Exclusivity of the Statutory Scheme
The “fairly discernible” test is easily satisfied in this case.
The terms of the BLBA make it clear that Congress intended
mine operators to contest their liability for benefits payments
exclusively through the statutory review scheme. “Generally,
when Congress creates procedures designed to permit agency
 9
expertise to be brought to bear on particular problems, those
procedures are to be exclusive.” Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 489 (2010) (citation
and internal quotation marks omitted). As described above, the
BLBA establishes exactly such a detailed and comprehensive
process for adjudicating black lung benefits claims. See 33
U.S.C. §§ 919, 921.

In all relevant respects, the BLBA resembles other
statutory schemes held to preclude district court jurisdiction. In
Thunder Basin, a coal company sought injunctive relief in
district court for alleged statutory and constitutional violations
emanating from an anticipated enforcement proceeding under
the Federal Mine Safety and Health Amendments Act of 1977
(“Mine Act”). 510 U.S. at 204–05. Under the Mine Act’s
scheme, a party sanctioned by the Mine Safety and Health
Administration may bring a challenge before an ALJ, appeal
the ALJ’s decision to a Commission within the agency, and
appeal the Commission’s final order to a court of appeals. Id.
at 207–08. “The [Mine] Act expressly authorizes district court
jurisdiction in only two provisions,” which allow the agency to
seek enforcement orders in court. Id. at 209. Mine operators
have no “corresponding right” to district court jurisdiction. Id.
The Supreme Court concluded that the detailed statutory
scheme “demonstrate[d] that Congress intended to preclude
[the plaintiff’s] challenges.” Id. at 208; see also Elgin, 567 U.S.
at 5–6 (holding that the Civil Service Reform Act’s scheme for
reviewing personnel actions – involving a hearing before the
agency, review by a board within the agency, and appeal to the
Federal Circuit – was exclusive of district court jurisdiction);
Jarkesy, 803 F.3d at 16 (involving similar judicial review
provisions under the Securities Exchange Act and holding that
they indicated exclusivity); Sturm, Ruger & Co., 300 F.3d at
871–73 (holding the same with respect to the Occupational
 10
Safety and Health Act’s scheme of administrative and judicial
review).

The BLBA cannot be distinguished from the foregoing
statutory schemes. Under the BLBA, mine operators may
challenge adverse liability decisions before an ALJ and obtain
review of the ALJ’s decision by a Board established by the Act
within the agency for that purpose. Only after the Board has
issued a final order may an adversely affected party obtain
judicial review, and that review is available only in a U.S. court
of appeals. See 33 U.S.C. § 921(c). Moreover, the BLBA, like
the Mine Act, expressly authorizes district court jurisdiction in
only two narrow circumstances, each involving enforcement of
compensation orders. See 33 U.S.C. § 921(d) (allowing a
successful claimant or the deputy commissioner making the
order to bring an action in district court to enforce an award of
disability benefits); 30 U.S.C. § 934(b)(4)(A) (allowing the
Secretary to sue in district court to enforce a lien against an
operator who fails to make payments to the Black Lung
Disability Trust Fund). By its terms, the BLBA’s “special
statutory review scheme” leaves no role for district court
review of the Department’s run-of-the-mill black lung benefits
determinations. Therefore, mine operators seeking to contest
their liability for black lung benefits claims must exhaust the
administrative remedies provided in the statute before seeking
review in a U.S. court of appeals.

2. Arch’s Claims Are of the Type that Congress Intended
to Be Reviewed Within the BLBA Statutory Structure
Arch argues that even if the BLBA is exclusive with respect
to claims that fall within its compass, the claims at issue in this
case are not of the type that Congress intended to be reviewed
within the BLBA’s statutory structure. We disagree.
 11
A claim will be found to fall outside of the scope of a
special statutory scheme in only limited circumstances, when
(1) a finding of preclusion might foreclose all meaningful
judicial review; (2) the claim is wholly collateral to the
statutory review provisions; and (3) the claims are beyond the
expertise of the agency. Free Enter., 561 U.S. at 489; Thunder
Basin, 510 U.S. at 212–13. These exceptions are not applied
pursuant to any “strict mathematical formula.” Jarkesy, 803
F.3d at 17. Rather, the exceptions reflect “general guideposts
useful for channeling the inquiry into whether the particular
claims at issue fall outside an overarching congressional
design.” Id.

In its complaint, Arch attempted to fit its claims within an
exception to the Thunder Basin rule, arguing that it should not
be forced to defend the compensation claims at issue because,
for a number of reasons, it is not liable for them as a matter of
law under the BLBA. This argument obviously fails because
operator challenges to potential liability under the BLBA are
quintessentially the type of claims that are within the exclusive
compass of the BLBA’s statutory scheme. They fall squarely
within the Department’s authority and expertise to assess
liability for benefits payments under the BLBA. Indeed, benefit
liability disputes “arise from actions [taken by the Department]
in the course of” the administrative enforcement scheme,
Jarkesy, 803 F.3d at 23, and meaningful judicial review is
available in the courts of appeals, see 33 U.S.C. § 921(c).

On appeal, Arch argues that the disputed Bulletin is a
substantive “rule” that was issued without required procedures
and with impermissible retroactive effects. Therefore, Arch
maintains that its claims may be heard in the District Court
pursuant to National Mining Association v. Department of
Labor, 292 F.3d 849 (D.C. Cir. 2002) (per curiam). In that
decision, the court held that the District Court had jurisdiction
 12
over a challenge to regulations issued pursuant to notice-and-
comment rule making by the Secretary of Labor under the
BLBA. Nat’l Mining, 292 F.3d at 858–59. The decision in
National Mining is plainly inapposite.

National Mining distinguished the claims before it from
those at issue in two circuit court decisions, both of which had
held that the BLBA’s statutory review scheme precluded
district court jurisdiction. See Louisville & Nashville R.R., 713
F.2d at 1244 (remanding with instructions to vacate District
Court’s award of injunction preventing Secretary from
extending coverage of the BLBA to railroad employees on the
basis of Department’s guidelines); Compensation Dep’t, 667
F.2d at 340 (holding District Court lacked jurisdiction over
claim that Department’s policy for reviewing claimants’ X-ray
evidence violated the BLBA). The National Mining court
explained that the plaintiffs in the two cited cases did not
challenge “a formal regulation, as is true in our case,” but had
instead attempted “to short-circuit the administrative process
by challenging a Department enforcement position in a district
court.” Nat’l Mining, 292 F.3d at 858; see also id. at 857 (“It is
important to note that [Thunder Basin] did not involve a
regulation.”). By contrast, the plaintiffs in National Mining
brought “a direct attack on the validity of a formal regulation,
issued pursuant to notice-and-comment rulemaking.” Sturm,
Ruger & Co., 300 F.3d at 875 (citation and internal quotation
marks omitted).

If anything, the decision in National Mining clearly
supports our judgment in this case. For example, the court
pointed out that in a case of the sort that Arch seeks to pursue
here, “there [is] no reason to believe that [the operator’s] legal
position, if correct, could not be fully remedied through review
in the Court of Appeals.” Nat’l Mining, 292 F.3d at 858.
 13
The simple point here is that Arch’s challenges to the
Bulletin are the exact sort of claims that National Mining took
pains to distinguish from its holding. Arch requests district
court relief that would circumvent the statutory scheme based
on objections to an enforcement policy, not a legislative “rule.”
See 5 U.S.C. § 551(4) (2012). Unlike the “rule” that fell outside
the BLBA’s administrative scheme in National Mining, the
disputed Bulletin in this case does not “alter the rights or
interests of parties, although it may alter the manner in which
the parties present themselves or their viewpoints to the
agency.” James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d
277, 280 (D.C. Cir. 2000) (quoting JEM Broad. Co. v. FCC, 22
F.3d 320, 326 (D.C. Cir. 1994)) (describing “rules of agency
organization, procedure, or practice,” 5 U.S.C. § 553(b)(3)(A)
(2012), which are exempt from notice-and-comment rule
making requirements). To the contrary, the Bulletin does not
impose any liability on Arch under the BLBA or dispose of any
benefits claim on the merits. It only requires District Directors
to initiate proceedings concerning Arch’s potential
responsibility for BLBA claims related to Patriot.

It is well understood that the notice-and-comment
provisions of section 553 of the APA do not apply to agency
bulletins, policy statements, directives, guidances, opinion
letters, press releases, advisories, warnings, or manuals that do
not have the force of law. See EDWARDS & ELLIOTT, FEDERAL
STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 196–97 (3d ed. 2018).
Indeed, such actions normally are not subject to judicial review
unless the agency relies on the policy to support an agency
action in a particular case. Id. at 198–99.

All of the matters with respect to which Arch complains are
related to actions that the Department has taken pursuant to the
BLBA’s statutory scheme. Therefore, Arch is required to
 14
exhaust its administrative remedies and secure a final order
from the Board before it may seek review from this court.
Arch’s challenge to the Bulletin in the District Court surely was
not “wholly collateral” to the BLBA’s review scheme. Rather,
the suit in District Court was an attempt by Arch to jump the
gun and make an end run around the BLBA’s statutory scheme.
See Sturm, Ruger & Co., 300 F.3d at 876 (“Indeed, the
company is attempting to end the [statutory review] process
altogether: its complaint seeks an injunction . . . that would
terminate the [currently pending] proceeding.”).

Arch’s counsel conceded at oral argument before this court
that the company will be able to raise its objections to the
Bulletin and any enforcement actions taken against it during
the course of the administrative process. See Oral Arg.
Recording 9:29–10:13. Counsel also acknowledged that the
company may appeal to a court of appeals to contest any
adverse final order issued by the Board. Id. In fact, while this
appeal was pending, Arch raised its primary objections in
ongoing administrative proceedings before the Department.
See Creech v. Apogee Coal Co., Case No. 2016-BLA-06034,
Arch Coal’s Mot. for Summ. Decision on Responsible Party
Issue (Oct. 2, 2017), at 5. Arch would prefer to follow a
different course in challenging the Department’s pursuit of
enforcement claims, i.e., by seeking injunctive and declaratory
relief in the District Court. It has no such option under the law,
however.

Arch maintains that judicial review will not be meaningful
because the Department will not afford it adequate discovery
to develop its claims during the administrative proceedings.
This argument is premature. Arch is entitled to reasonable
discovery before the Department to the full extent allowed by
the BLBA and its implementing regulations. See 29 C.F.R.
§§ 18.10(a), 18.51(a) (2017). A mine operator may introduce
 15
“evidence relevant to [its] liability” in the BLBA proceedings,
20 C.F.R. § 725.410(b); see also id. §§ 725.411–17, 725.450–
58, including through depositions or interrogatories, id.
§ 725.458. And an Administrative Law Judge is authorized to
“[c]ompel the production of documents and appearance of
witnesses by the issuance of subpoenas.” 20 C.F.R. § 725.351.
If Arch appeals an ALJ’s orders denying discovery or refusing
to compel the appearance of witnesses as legally erroneous or
an abuse of discretion, the Board may vacate those orders and
remand for further proceedings. See id. § 802.301(a). Once
Arch reaches the court of appeals, it will have access to the full
administrative record. And “should the record in the
administrative proceeding prove inadequate to the court of
appeals . . . that court always has the option of remanding to
the agency for further factual development.” Jarkesy, 803 F.3d
at 22 (citation and internal quotation marks omitted). If the
Department violates any of Arch’s statutory discovery rights
during the administrative review process, and that process
results in a final order, Arch will be entitled to judicial review
before a U.S. court of appeals.

C. Finality

Finally, Arch asserts that “the Department’s allocation of
Patriot’s self-insurance and bankruptcy assets is final agency
action not subject to adjudication in the claims process.” Arch
Br. 37. In other words, Arch seems to assume that the
Department has disposed of some matters on the merits and,
therefore, it is entitled to review now. The Department
responds that the company is simply wrong on this point
because “Arch is fully able to raise its claims through the Black
Lung Act’s statutory review scheme, and its claims will be
meaningfully considered through that process.” Department
Br. 28. The record supports the Department on this point. The
Department also points out that there is nothing for this court
 16
to review on the merits because “Arch has not challenged final
agency action as required by 5 U.S.C. § 704.” Id. We agree.

The Bulletin is not a final agency action because it does
not reflect “the consummation of the agency’s decisionmaking
process” and it does not offer a decision “by which rights or
obligations have been determined, or from which legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–
78 (1997) (citations and internal quotation marks omitted). The
Bulletin merely instructs District Directors to issue notices of
claims making Arch a party to administrative proceedings and
thereby initiate the process by which Arch’s obligations under
the BLBA eventually will be determined.

“It is firmly established that agency action is not final
merely because it has the effect of requiring a party to
participate in an agency proceeding.” CSX Transp., Inc. v.
Surface Transp. Bd., 774 F.3d 25, 30 (D.C. Cir. 2014) (quoting
Aluminum Co. of Am. v. United States, 790 F.2d 938, 941 (D.C.
Cir. 1986)); see also FTC v. Standard Oil Co. of Cal., 449 U.S.
232, 241 (1980) (holding that the issuance of an administrative
complaint is not final agency action because a complaint is “not
a definitive statement of position” but instead a “threshold
determination that further inquiry is warranted”).

Arch argues that the inconvenience of having to defend a
claim on the merits should render its designation as a
potentially responsible operator reviewable. But the Supreme
Court’s decision in Standard Oil rejected this exact argument.
See Standard Oil, 449 U.S. at 242 (a party’s “burden of
responding to the charges made against it” before an agency “is
different in kind and legal effect from the burdens attending
what heretofore has been considered to be final agency
action”).
 17
Nor does Arch’s mere claim that the Bulletin is an
improperly adopted “rule” establish any exception to the final
order rule. We have held that “[t]his is a matter that can be
raised by [a party] if it elects to appeal the Board’s final
decision at the conclusion of the adjudication.” CSX, 774 F.3d
at 28. Were the courts to “permit[] a party to seek interlocutory
review on the ground that an agency has allegedly adopted a
new legislative rule during the course of an adjudication . . . [it]
would wreak havoc with the final order rule.” Id. at 33.

III. CONCLUSION
For the reasons set forth above, we affirm the District
Court’s dismissal of Arch’s complaint.