OXY USA, Inc. v. Babbitt

BRISCOE, Circuit Judge,

with whom Judge HENRY joins, dissenting.

Because I conclude the orders issued by the Minerals Management Service (MMS) are not barred by 28 U.S.C. § 2415(a) or the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. § 1701 et seq., I respectfully dissent.

I.

As noted by the majority, § 2415(a) provides in relevant 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.

Our review of § 2415(a) is circumscribed by several well-established principles of statutory construction. First and foremost, we must give effect to the plain language of the statute. See, e.g., McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). Second, “[sjtatutes of limitation sought to be applied to bar rights of the Government, must receive a strict con*1010struction in favor of the Government.” Badaracco v. Comm’r of Internal Revenue, 464 U.S. 386, 391, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984); accord United States v. Ward, 985 F.2d 500, 502 (10th Cir.1993) (interpreting § 2415(a)); United States v. Hess, 194 F.3d 1164, 1175 (10th Cir.1999) (interpreting § 2415(b)). “[Although we should not construe such a time-bar provision unduly restrictively, we must be careful not to interpret it in a manner that would extend the waiver beyond that which Congress intended.” United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) (internal quotation omitted). Finally, we “are not authorized to rewrite a statute because [we] might deem its effects susceptible of improvement.” Badaracco, 464 U.S. at 398, 104 S.Ct. 756.

The focus of our statutory interpretation is the language in § 2415(a), which places time limitations on “every action for money damages brought by the United States or an officer or agency thereof.” The word “action,” in its “usual legal sense” means “a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law.” 1 Black’s Law Dictionary at 28 (6th ed.1990). The term “money damages” “normally refers to a sum of money used as compensatory relief ... given to [a] plaintiff to substitute for a suffered loss.” Bowen v. Massachusetts, 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); see also Black’s Law Dictionary at 389 (defining “damages” as “[a] pecuniary compensation or indemnity, which may be recovered in the courts ”) (emphasis added). Taken together, the entire phrase plainly and indisputably refers to lawsuits brought by the federal government seeking compensatory relief for losses suffered by the government. The majority gives short shrift to this statutory language and focuses on the words “every action.” Without citing to any authority, the majority concludes these words are “patently broad” and “limited in scope only by reference to the possibility of a specific exception ‘otherwise provided by Congress.’ ” Maj. Op. at 1005. Not only does this conclusion overlook the plain meaning of the word “action,” it ignores entirely the critical language that follows “every action,” i.e., the phrase “for money damages brought by the United States.” If there were any doubts about the scope of “every action” (which, for the reasons outlined above, I submit there legitimately are not), the ensuing language expressly limits the scope of the words to lawsuits filed by the United States seeking compensatory relief for damages suffered by the government.

If the plain language of § 2415(a) is not enough, other factors reinforce the conclusion that § 2415(a) is aimed solely at civil lawsuits filed by the government. Throughout § 2415, Congress linked the word “action” to the filing of a complaint. See 28 U.S.C. §§ 2415(a), (b), (d) (barring an action founded upon contract, founded upon tort, or to recover money erroneously paid “unless the complaint is filed” within a specified time period). A “complaint” is typically regarded as “[t]he original or initial pleading by which an action is commenced under codes or Rules of Civil Procedure.” Black’s Law Dictionary at 285. “Pleadings,” in turn, normally include *1011“[t]he formal allegations by the parties to a lawsuit of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial” Id. at 1152 (emphasis added). This is consistent with the statute’s general title (“Time for commencing actions brought by the United States”), and statutory placement (part of Chapter 161, entitled “UNITED STATES AS PARTY GENERALLY”2), both of which clearly indicate that § 2415 is aimed solely at civil lawsuits filed by the government. It is also consistent with the legislative history, which indicates § 2415 was intended “to provide a more balanced and fair treatment of litigants in civil actions involving the Government.” S.Rep. No. 89-1328, at 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2502, 2503 (emphasis added); see also id. at 2503 (referring to “Government litigation covered by the bill”), 2508 (recognizing the “need for legislation providing for a statute of limitations which would apply to suits by the Government arising out of contracts”), 2509 (“The Government will be barred from asserting old and stale claims in the courts.”).

The majority asserts that § 2415(f) and (i) indicate the word “action” was intended to encompass agency proceedings. Section 2415(f) sets forth two exceptions to § 2415(a)’s six-year period of limitations, allowing the government to defensively assert time-barred claims (1) as counterclaims if they “arise[ ] out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” or (2) by way of offset if they “do[ ] not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” 28 U.S.G. § 2415(f). Section 2415(i) states that § 2415(a) cannot prevent the government from collecting any claim “by means of administrative offset.” 28 U.S.C. § 2415©; see S.Rep. No. 97-378, at 16 (1982) (explaining that § 2415© “allows collection of delinquent debts owed the government by administrative offset beyond the six-year statute of limitations”); id. at 28 (indicating that the purpose of § 2415(i) “is to extend the time period that agencies are allowed to offset benefits of debtors”).

Although § 2415© and the latter portion of § 2415(f) (i.e., the portion allowing a governmental offset) unquestionably lend support to the majority’s position, they cannot override the plain language of § 2415(a). Thus, “Congress’s enactment of section 2415© [and the latter portion of section 2415(f) ] is best understood as a clarification of the limited scope of section 2415(a), to ensure that section 2415 would not be applied to administrative offsets.” United States v. Hanover Ins. Co., 82 F.3d 1052, 1057 (Fed.Cir.1996) (Bryson, J., dissenting). As the dissenting judge in Hanover recognized:

The legislative history of the 1982 amendment that added section 2415© provides support for that interpretation. Before 1982, the Justice Department had concluded that, absent an amendment, section 2415 could be invoked to prevent the administrative offset of debts more than six years old. The Comptroller General took the opposite position, arguing that section 2415 had no application to the administrative offset of debts. Noting the contrary position taken by the Justice Department, the Comptroller General recommended enacting subsection (i) “as a means of resolving the differences between us.” By adopting section 2415©, Congress *1012thus did not have to decide whether the Department of Justice or the Comptroller General had the better of the argument as to the proper construction of the pre 1982 version of section 2415.
In light of that background, the enactment of subsection (i) cannot be invoked to support the inference that Congress regarded section 2415(a) as extending to administrative actions. In any event, any such inference that could be drawn from the enactment of subsection (i) is not strong enough to overcome the clear language of section 2415(a). Particularly in light of the principle that statutes of limitations running against the sovereign are to be strictly construed, the apparent superfluity of section 2415(i) does not justify reading section 2415(a) to apply to cases that fall outside its explicit reach.

Id. (internal citations omitted); see also Gerrard v. United States Office of Educ., 656 F.Supp. 570, 573 n. 3 (N.D.Cal.1987) (stating that although Congress adopted § 2415(i) in response to a Justice Department determination that the six-year limitation period applied to administrative offsets, “[tjhere is no indication in the legislative history that Congress agreed with the department’s interpretation”).

The majority also suggests that my interpretation of § 2415(a) will “lead[ ] to irrational results and permit[ ] governmental agencies to evade the statute of limitations through procedural gimmickry.” Maj. Op. at 1006 (internal quotations omitted). This argument admittedly has some force, and a divided panel of the Federal Circuit has rejected the notion that “Congress intended agencies to be free to assert their claims at any time and by any means other than court actions, unencumbered by the period of limitation imposed by section 2415(a).” Hanover, 82 F.3d at 1055. Nonetheless, this potentially troubling result cannot be corrected by judicial fiat. While “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available,” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), it is equally true that “[cjourts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.” Badaracco, 464 U.S. at 398, 104 S.Ct. 756. As discussed above, “[t]his is especially so when courts construe a statute of limitations, which must receive a strict construction in favor of the Government.” Id. (internal citation omitted); see also E.I. Dupont De Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 68 L.Ed. 788 (1924) (establishing that an action by the government “is subject to no time limitation, in the absence of congressional enactment clearly imposing it”). Congress may not have “precisely envision[ed]” that agencies such as the MMS might be able to issue administrative orders that resemble claims for breach of contract, but “[i]t is enough that Congress intended that the language it enacted would be applied as we have applied it. The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this court. Congress may amend the statute; we may not.” Griffin, 458 U.S. at 576, 102 S.Ct. 3245.

II.

Since, in my view, § 2415(a) does not apply, it is necessary to briefly address whether' the FOGRMA independently requires the government to collect unpaid royalties in a timely fashion. The statute directs the Secretary to “establish a comprehensive inspection, collection and fiscal and production accounting and auditing system to provide the capability to accu*1013rately determine oil and gas royalties, interest, fines, penalties, fees, deposits, and other payments owed, and to collect and account for such amounts in a timely manner.” 30 U.S.C. § 1711(a) (emphasis added). Likewise, one of the goals of the statute is to “require the development of enforcement practices that ensure the prompt and proper collection and disbursement of oil and gas revenues owed to the United States and Indian lessors and those inuring to the benefit of States.” 30 U.S.C. § 1701(b)(3) (emphasis added);

OXY argues that the words “prompt” and “timely” indicate that the FOGRMA limits the time in which the government can collect royalties. But the language and structure of the statute undermine that assertion. For example, the word “timely” appears in a section of the statute titled “Duties of Secretary.” See 30 U.S.C. § 1711(a). If Congress had truly intended to limit the time in which the government can collect royalties, it would have referred to this section as a “statute of limitations.” From my review of the FOGRMA when read as a whole, it is clear that Congress knew how to enact a statute of limitation when that was its intent. Section 1755 of title 30 expressly sets forth a six-year “Statute of limitations” for actions to recover certain penalties. Similarly, in the 1996 amendments to the FOGR-MA Congress specifically enacted a seven-year “limitation period” — complete with provisions governing accrual and tolling— for any “judicial proceeding or demand which arises from, or relates to, an obligation.” See 30 U.S.C. § 1724(b).

OXY’s reference to the word “prompt” is equally unavailing. The word “prompt” appears in a section of the statute titled “Congressional statement of findings and purposes.” See 30 U.S.C. § 1701(b)(3). Once again, if Congress had intended to enact an independent timeliness requirement, it would have called it a “statute of limitations” and would have avoided locating it in a “statement of findings and purposes.” Moreover, § 1701 merely lists the goals of the FOGRMA and sets forth a series of tasks that the Secretary “should” do. See 30 U.S.C. § 1701(a). It follows that any obligations created by § 1701 are precatory and aspirational, not mandatory.

Finally, the legislative history of the FOGRMA also undermines OXY’s claim. The House Report contains no support for the proposition that Congress intended to limit the time in which the government can initiate administrative collection proceedings. Aside from a reference to § 1755, the Report makes no mention of a statute of limitations of any kind. Indeed, if anything, the Report supports the government’s arguments that (1) the phrase “in a timely manner” in § 1711 refers to the “comprehensive inspection, collection and fiscal production accounting and auditing system” to be adopted by the Secretary (rather than to specific orders issued by the MMS); and (2) the words “timely” and “prompt” were inserted to “promote the revenue interests of the federal, state, and Indian beneficiaries of the federal leasing programs and not to provide a shelter for royalty payors such as OXY.” See Reply Brief for the Appellants at 21. Among other things, the Report indicates that when Congress enacted the FOGRMA it was primarily concerned with (1) lost revenues resulting from poor royalty accounting practices by administrative agencies; (2) substandard auditing and verification procedures; (3) lax security on certain lease sites resulting in theft and fraud; and (4) an inadequate and inflexible array of enforcement tools. I conclude Congress’ use of the word “timely” in 30 U.S.C. § 1711(a) and the word “prompt” in 30 U.S.C. § 1701(b)(3) was not intended to create a statute of limitation in which the government must act to collect royalties.

*1014I would reverse the district court’s grant of summary judgment against the government and remand for entry of summary judgment in favor of the government.

. Nothing in the legislative history indicates that Congress intended to ascribe a specialized meaning to the term "action” in § 2415. The House Report speaks of "actions in the U.S. courts.” H.R.Rep. No. 89-1534, at 2 (1966); see also id. at 3 (referring to "civil litigation” and "court congestion”). The Sen-ale Report similarly provides that § 2415 applies to "civil actions” and "actions in the U.S. courts.” S.Rep. No. 89-1328, at 1, 8 (1966); see also id. at 8 (making reference to "claims in the courts”); id. at 2, 7 (using the term "suit” as a synonym for "action”).

. Notably, the other sections of Chapter 161 all refer to various aspects of civil litigation involving the federal government (e.g., the right to a juiy trial in actions against the government; interest; costs and fees; payment of judgments).