Indep Petro Assn v. Babbitt, Bruce

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2000 Decided January 5, 2001

No. 98-5131

Independent Petroleum Association of America, et al.,
Appellants

v.

Bruce Babbitt, Secretary of the Interior, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 93cv02544)

L. Poe Leggette argued the cause for appellants. With him
on the briefs were Laura S. Morton and Stephen M.
McNabb. E. Edward Bruce, Nancy L. Pell and Thad S.
Huffman entered appearances.

Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were

James F. Simon, Acting Assistant Attorney General, and
Sean H. Donahue, Attorney.

Before: Sentelle, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: In the consolidated cases of
Independent Petroleum Association of America v. Babbitt
and Samedan Oil Corp. v. Deer, 92 F.3d 1248 (D.C. Cir.
1996), we held that (1) a policy letter written by an Associate
Director of the Minerals Management Service clarifying the
royalty consequences of take-or-pay settlement payments was
not a rule subject to the notice-and-comment requirements of
the Administrative Procedure Act; and (2) the decision of an
Assistant Secretary of the Department of the Interior in
Samedan Oil Corp., MMS-94-0003-IND (Sept. 16, 1994), was
arbitrary and capricious. On remand, the District Court
granted in part Samedan Oil Corporation's ("Samedan") mo-
tions for entry of an order implementing the mandate of this
Court and for injunctive relief, Independent Petroleum Ass'n
of Am. v. Babbitt, 971 F. Supp. 19, 35-36 (D.D.C. 1997), but
denied a similar motion made by the Independent Petroleum
Association of America ("IPAA"), see id. at 30, 35. The
District Court concluded that IPAA was not a party to
Samedan's case and that IPAA's remaining claim--a "general
challenge to the authority of [the Department of the Interior]
to charge" royalties on nonrecoupable take-or-pay settlement
payments--did not challenge final agency action. Id. at 26.
Accordingly, the District Court held that it lacked jurisdiction
over IPAA's claim and therefore dismissed its complaint.
IPAA now returns to this Court asking us to reverse the
lower court's decision. For the reasons set forth below, we
affirm.

I. BACKGROUND

The instant appeal continues a long history of litigation
focusing on whether the Department of the Interior ("DOI")
should be permitted to collect royalties from gas-producing
companies that lease land from DOI when those companies

receive payments based on their take-or-pay settlement
agreements with gas pipelines.1 DOI initially took the posi-
tion that under its gross proceeds rule, see 30 C.F.R.
ss 206.151, .152(h), .153(h) (1987), gas producers owed royal-
ties for receiving such payments. In 1988, the Fifth Circuit
rejected this position, holding that "[r]oyalty payments are
due only on the value of minerals actually produced, i.e.,
physically severed from the ground. No royalty is due on
take-or-pay payments unless and until gas is actually pro-
duced and taken." Diamond Shamrock Exploration Co. v.
Hodel, 853 F.2d 1159, 1168 (5th Cir. 1988). DOI subsequently
amended the gross proceeds rule to reflect this holding,
"remov[ing] the requirement to pay royalties on take-or-pay
payments at the time the payment is made" but continuing to
require royalties "when make-up gas is taken." Revision of
Gross Proceeds Definition in Oil and Gas Valuation Regula-
tions, 53 Fed. Reg. 45,082, 45,083 (Nov. 8, 1988). In a May 3,
1993 letter, the Associate Director of DOI's Minerals Man-
agement Service ("MMS") sought to clarify the gross pro-
ceeds rule, stating that "some or all of a settlement payment
is or will become royalty bearing if production to which
specific money is attributable occurs." Letter from James W.
Shaw, Associate Director for Royalty Management, MMS,
addressed to "Payor" (May 3, 1993) [hereinafter May 1993
letter]. In other words, according to the letter, "the only
relevant question is whether or not the gas which was origi-
nally spoken for in the settled contracts is eventually sold to
someone." Independent Petroleum Ass'n of Am. v. Babbitt
("IPAA I"), 92 F.3d 1248, 1253 (D.C. Cir. 1996) (emphasis in
original).

In August 1993, the Independent Petroleum Association of
America, an association of roughly 5,000 independent explor-
ers and producers of natural gas and oil, responded to the
letter by filing a suit seeking injunctive relief to prevent DOI

__________
1 For a detailed explanation of the statutes and regulations that
form the basis for this litigation and the history of the take-or-pay
settlements at issue, see Independent Petroleum Association of
America v. Babbitt ("IPAA I"), 92 F.3d 1248, 1251-53 (D.C. Cir.
1996).

from collecting royalties on unrecoupable take-or-pay settle-
ment payments. IPAA's complaint argued, inter alia, that
(1) DOI adopted a new rule through the May 1993 letter
without following the notice-and-comment procedures re-
quired by the Administrative Procedure Act ("APA"), 5
U.S.C. s 553, and (2) DOI's efforts to collect royalties based
on the settlement agreements violated the statutes governing
the royalties owed under DOI leases. In 1994, in an effort to
"simplify ... some of the procedural aspects of [ ] the IPAA
Litigation," DOI and IPAA entered an agreement whereby
MMS would issue up to 10 orders to companies to pay
royalties based on their settlement agreements. Agreement,
Independent Petroleum Ass'n of Am. v. Babbitt, No. 93-2544
(D.D.C. Feb. 4, 1994). The companies could then appeal
these orders to an Assistant Secretary of DOI, who would
issue decisions that could become "appropriate vehicles to
seek judicial review on the merits of the May [1993] Letter."
Id. at 5.

Later that year, MMS issued an order to Samedan Oil
Corporation requiring it to pay royalties on settlement pay-
ments made by Southern Natural Gas Company. Samedan
appealed the order to DOI's Assistant Secretary for Indian
Affairs. The Assistant Secretary upheld the order based on
the policies articulated in the May 1993 letter. See Samedan
Oil Corp., MMS-94-0003-IND (Sept. 16, 1994). Samedan
appealed to the District Court seeking judicial review of the
Assistant Secretary's decision. Then, as we explained in
IPAA I, "the District Court consolidated Samedan's challenge
with IPAA's challenge to the May 1993 letter." IPAA I, 92
F.3d at 1255. After the District Court granted summary
judgment for DOI in both cases, Samedan and IPAA appeal-
ed to this Court.

On appeal, we reversed the District Court's granting of
summary judgment, holding that (1) the May 1993 letter was
not a "rulemaking requiring APA notice-and-comment proce-
dures," id. at 1256, and (2) the Assistant Secretary's Same-
dan decision was "arbitrary and capricious in light of DOI's
adoption of the Diamond Shamrock holding," id. at 1260.

Accordingly, we held that DOI was precluded from collecting
royalty payments from Samedan. See id.

On remand, IPAA and Samedan filed motions with the
District Court seeking an order implementing the "mandate
of the court of appeals" and a permanent injunction against
DOI from collecting royalties from Samedan. Independent
Petroleum Ass'n of Am. v. Babbitt, 971 F. Supp. 19, 23
(D.D.C. 1997). The District Court granted Samedan's motion
for injunctive relief, see id. at 36, and denied IPAA's motion
to implement this Court's mandate, see id. at 30, 35. In
denying IPAA's motion, the District Court ruled that our
decision in IPAA I only addressed IPAA's claim concerning
MMS's May 1993 letter, not its "wide-ranging" complaint
concerning DOI's efforts to collect royalties based on take-or-
pay settlement agreements. See id. at 26. The District
Court explained that our holding concerning the Assistant
Secretary's Samedan decision extended only to Samedan, not
to IPAA. Noting that IPAA had not sought to join Same-
dan's case, the District Court reasoned that IPAA could not
"be considered a true party to Samedan's case, but must
stand or fall on its own." Id. Consistent with this reasoning,
the District Court reviewed whether it had jurisdiction to
hear IPAA's broad challenge to DOI's royalty policy. Al-
though recognizing that further administrative review would
be futile in light of DOI's insistence that it would continue to
apply the policies underlying the May 1993 letter, the Court
ultimately ruled that it lacked jurisdiction because IPAA does
"not face any final actions which [it] may challenge." Id. at
30. Accordingly, the District Court dismissed IPAA's claim.
IPAA appeals from this ruling.

II. ANALYSIS

DOI contends that the issues raised by IPAA are not
properly before this Court. Following the District Court's
dismissal of its claim, IPAA filed a motion pursuant to Rule
59(e) of the Federal Rules of Civil Procedure asking the
District Court to amend its judgment, arguing that "nothing
in the law of the D.C. Circuit conflicts" with adopting a

futility exception to the finality requirement. Independent
Petroleum Ass'n of Am. v. Babbitt, 178 F.R.D. 323, 324
(D.D.C. 1998) (mem.). IPAA suggested that in its case
"futility should create finality and subject matter jurisdic-
tion." Id. The District Court denied this motion, concluding
that our Circuit has constrained the futility exception to the
requirement of exhausting administrative remedies before
seeking judicial review. See id. at 324-25. The Court noted
that IPAA's argument "conflate[d] the doctrines of finality
and exhaustion," id. at 324, and held that "futility cannot
create agency action for purposes of jurisdiction," id. at 326.

IPAA's Notice of Appeal states that IPAA appeals from the
District Court's order "denying plaintiffs' motion to alter or
amend the judgment dismissing the complaint." DOI points
out that the arguments IPAA makes on appeal deal solely
with the District Court's dismissal of its complaint, not its
Rule 59(e) motion. Because IPAA's Notice of Appeal refers
only to the District Court's denial of this motion without
referencing the dismissal of its complaint, DOI suggests that,
in light of Rule 3(c) of the Federal Rules of Appellate
Procedure, IPAA's arguments concerning the dismissal of its
claim are not properly before us.

Under Rule 3(c), a notice of appeal must "designate the
judgment, order, or part thereof being appealed." Fed. R.
App. P. 3(c)(1)(B). Nevertheless, a party's failure to designate
the proper order it intends to appeal is "not necessarily fatal."
Martin v. FERC, 199 F.3d 1370, 1372 (D.C. Cir. 2000). As
we have explained, "a party may demonstrate its intention to
appeal from one order despite referring only to a different
order in its petition for review if the petitioner's intent can be
fairly inferred from the petition or documents filed more or
less contemporaneously with it." Id. (internal quotes omit-
ted). Furthermore, without a showing of prejudice by the
appellee, technical errors in the notice of appeal are consid-
ered harmless. See McLaurin v. Fischer, 768 F.2d 98, 102
(6th Cir. 1985) (citing Foman v. Davis, 371 U.S. 178, 181
(1962)).

 We conclude that the arguments raised by IPAA concern-
ing the District Court's dismissal of its complaint are properly
before us. IPAA's intention to appeal from the actual dis-
missal is clear. In the Non-Binding Statement of Issues to
be Raised, IPAA explicitly stated one issue as "[w]hether ...
the district court erred in dismissing appellants' complaint
with prejudice on the grounds that they had not complained
of 'final' agency action within the meaning of 5 U.S.C. s 704."
J.A. at 300. It is also worth underscoring that DOI does not
claim that it was prejudiced by IPAA's referring to the wrong
order in its Notice of Appeal. See Martin, 199 F.3d at 1373
(noting that appellee did not "claim to suffer any prejudice").
Not only did DOI fully brief the merits of the District Court's
dismissal of IPAA's claim, but its earlier filings demonstrate
that it understood the true nature of IPAA's appeal. For
example, in one responsive document it noted that one issue
before the Court is "the import of this Court's decision in
IPAA v. Babbitt and whether injunctive relief is appropriate."
Federal-Appellees' Consolidated Response to Appellants' Re-
sponse to Order to Show Cause at 5, Shell Offshore, Inc. v.
Department of the Interior, No. 98-5116 (D.C. Cir. 2000)2; cf.
Foman, 371 U.S. at 181 ("[B]oth parties brief[ed] and ar-
gue[d] the merits of the earlier judgment on appeal....");
Martin, 199 F.3d at 1373 (FERC's responses "indicate that
the agency was aware from the outset that [petitioner] meant
to seek review of the Certificate Order."). We therefore
proceed to consider the substance of IPAA's contention that
the District Court erred in dismissing its complaint for failing
to challenge final agency action.

IPAA argues that its claim originally included a challenge
to the Samedan decision and that in IPAA I we reversed the
District Court's order granting summary judgment against
IPAA in its challenge to Samedan. IPAA suggests the
District Court ignored this mandate by refusing to enter a

__________
2 Originally, IPAA's current appeal was consolidated with Shell
Offshore, Inc. v. Department of the Interior. Shell and DOI filed a
joint motion to stay all proceedings in the Shell cases. On August
8, 2000, this Court granted the motion.

judgment in its favor and subsequently dismissing its com-
plaint. According to IPAA, by reopening questions already
determined in earlier phases of this litigation, the District
Court violated the mandate rule. Further, IPAA contends
that the Samedan decision constitutes a final agency action
that provides the basis for a justiciable claim. In response to
IPAA's arguments, DOI submits that (1) IPAA's complaint
did not challenge final agency action; (2) IPAA does not have
standing to challenge the Samedan decision; and (3) IPAA's
claim is not ripe for review.

As we have explained before, "we have no difficulty dis-
missing a case based on one jurisdictional bar rather than
another." Louisiana Envtl. Action Network v. Browner, 87
F.3d 1379, 1384 (D.C. Cir. 1996). We therefore need not
identify every ground for holding that a claim is not justicia-
ble. See id. at 1385. We conclude that the District Court
properly dismissed IPAA's complaint because of the lack of
final agency action. Cf. Public Citizen v. Office of the U.S.
Trade Representatives, 970 F.2d 916, 918 (D.C. Cir. 1992)
(explaining that the absence of a final agency action "removes
any need for considering the government's other jurisdiction-
al argument").

Section 704 of the Administrative Procedure Act, 5 U.S.C.
s 704, provides for judicial review of final agency action--that
is, for a court to have jurisdiction over a case brought
pursuant to s 704, the complaint must challenge a final action
of an agency. See Public Citizen, 970 F.2d at 918. As we
stated in DRG Funding Corp. v. Secretary of Housing &
Urban Development, 76 F.3d 1212 (D.C. Cir. 1996), "[t]he
requirement of a final agency action has been considered
jurisdictional. If the agency action is not final, the court
therefore cannot reach the merits of the dispute." Id. at 1214
(citation omitted). The APA defines agency action to include
"the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure
to act." 5 U.S.C. s 551(13). In determining whether such
action is final, we consider "whether the agency's position is
'definitive' and whether it has a 'direct and immediate ...
effect on the day-to-day business' of the parties." Ciba-Geigy

Corp. v. United States Envtl. Protection Agency, 801 F.2d
430, 436 (D.C. Cir. 1986) (quoting Federal Trade Comm'n v.
Standard Oil Corp. of Cal., 449 U.S. 232, 239 (1980) (internal
quotes omitted)); see also Bennett v. Spear, 520 U.S. 154, 178
(1997) (An agency action is final if it "mark[s] the consumma-
tion of the agency's decisionmaking process" and is "one by
which rights or obligations have been determined, or from
which legal consequences will flow." (citations and internal
quotes omitted)).

IPAA's complaint not only does not challenge final agency
action, it is not at all clear what agency action IPAA purports
to challenge. The complaint states that IPAA challenges
DOI's "efforts to collect" royalties on take-or-pay settlement
payments. What those "efforts" entail is less than clear.
What is clear, however, is that these "efforts" are not final
agency actions fit for judicial review.

At best, IPAA's characterization of DOI's "efforts" seems
analogous to the National Wildlife Federation's ("NWF")
attempt to challenge the Bureau of Land Management's
("BLM") "land withdrawal review program" in Lujan v.
National Wildlife Federation, 497 U.S. 871 (1990). NWF
used the term "program" to describe BLM's activities in
complying with the Federal Land Management Policy Act of
1976, 43 U.S.C. s 1701 et seq. The Lujan Court explained
that "[t]he term 'land withdrawal review program' ... does
not refer to a single BLM order or regulation, or even to a
completed universe of particular BLM orders and regula-
tions." Lujan, 497 U.S. at 890. Accordingly, the Court
concluded that the program was not "an identifiable action,"
id. at 899, and therefore held that NWF's claim could not be
reviewed under the APA. See id. 892-93. Like the "pro-
gram" in Lujan, the "efforts" that IPAA seeks to challenge
do not refer to any particular action taken by DOI, much less
to any particular order, regulation, or completed universe of
orders or regulations. Cf. Sierra Club v. Peterson, 228 F.3d
559, 566 (5th Cir. 2000) (en banc) ("This is not a justiciable
challenge because the program of timber management to
which the environmental groups object does not mark the
consummation of the agency's decisionmaking process ... or

constitute an identifiable action or event." (internal citations
and quotations omitted)); Foundation on Econ. Trends v.
Lyng, 943 F.2d 79, 86-87 (D.C. Cir. 1991) (holding that a
plaintiff's complaint concerning the Department of Agricul-
ture's "germplasm preservation program" did not challenge
agency action under the APA). Instead, IPAA seeks to
litigate the type of "generic challenge" the Lujan Court
refused to hear. Lujan, 497 U.S. at 891 n.2.

IPAA itself seemed to recognize this shortcoming when it
entered an agreement with DOI to "simplify ... some of the
procedural aspects of [ ] the IPAA Litigation." Agreement,
Independent Petroleum Ass'n of Am. v. Babbitt, No. 93-2544
(D.D.C. Feb. 4, 1994). That agreement recognized that MMS
would issue up to 10 orders to companies to pay royalties
based on their settlement agreements. The companies could
then appeal these orders to an Assistant Secretary of DOI
who would issue decisions that could become "appropriate
vehicles to seek judicial review"--that is, those orders would
provide the foundation for justiciable test cases. Id. at 5. Of
course, the order issued to Samedan provided the basis for
one of those cases. See Independent Petroleum Ass'n of
Am., 971 F. Supp. at 24.

Now IPAA claims that it is challenging DOI's Samedan
decision. That decision, however, is never mentioned in
IPAA's complaint. Indeed, DOI issued the Samedan decision
over a year after IPAA filed its complaint in this case. IPAA
never amended its complaint to add a claim challenging that
decision. Nor did IPAA seek to intervene when Samedan
appealed the Assistant Secretary's decision. Although
IPAA's case was later consolidated with Samedan's case, the
two cases continued to be separate. See Cella v. Togum
Constructeur Ensemleier en Industrie Alimentaire, 173 F.3d
909, 912 (3d Cir. 1999) (noting consolidation does not merge
suits into a single case). Simply because IPAA and Samedan
were represented by the same counsel and filed a joint brief
on appeal, their individual cases were not somehow merged
into one--they remained separate and distinct.

 Alternatively, IPAA avers that in IPAA I the parties
litigated the Samedan decision by implied consent through
their cross-motions for summary judgment. See Fed. R. Civ.
P. 15(b). According to Rule 15(b), "[w]hen issues not raised
by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had
been raised in the pleadings." Id. The Rule's implied con-
sent provision is normally invoked when evidence concerning
an issue not addressed in the pleadings is introduced at trial
without objection. See 6A Charles Alan Wright et al.,
Federal Practice and Procedure: Civil 2d s 1493 (2d ed.
1990). In such cases, we uphold a trial court's determination
of whether parties impliedly consented to try an issue unless
the court abused its discretion. See Kirkland v. District of
Columbia, 70 F.3d 629, 633 (D.C. Cir. 1995).

It is an open question whether the Federal Rules permit
parties to impliedly consent to "try" issues not raised in their
pleadings through summary judgment motions. In Harris v.
Secretary, U.S. Department of Veterans Affairs, 126 F.3d 339
(D.C. Cir. 1997), we wrote that "[b]ecause a case decided on
motion for summary judgment does not reach trial, ... Rule
15(b) does not apply." Id. at 344 n.3. Yet, in Kulkarni v.
Alexander, 662 F.2d 758 (D.C. Cir. 1978), we noted that Rule
15(b)'s "general principle has been applied to motions for
summary judgment." Id. at 762. We need not decide that
general question. In this case there is no clear evidence in
the record that DOI consented to allow IPAA to challenge the
Samedan decision--certainly no proof sufficient to reverse
the District Court's ruling that IPAA did not challenge the
Samedan decision. See Independent Petroleum Ass'n of
Am., 971 F. Supp. at 25-26. In fact, this case's history is
sprinkled with references made by IPAA that its case is
distinct from Samedan's. For example, in the proceedings
leading up to this Court's decision in IPAA I, IPAA distin-
guished between "the Association's generic challenge to
[DOI's] interpretation and enforcement of their royalty value
regulations" and "Samedan's challenge to a particular order
to pay additional royalties owed under the terms of its lease."
Joint Motion for Enlargement of Page Limitations at 2, IPAA

I, 92 F.3d 1248 (D.C. Cir. 1996) (No. 95-5210) (emphasis
added). Likewise in its IPAA I brief, IPAA specifically
described two suits: IPAA's challenge to the May 1993 letter
and "[t]he second suit ... brought by Samedan Oil Corpora-
tion ... challeng[ing] a 1994 decision of Interior Department
Assistant Secretary Deer." Appellants' Brief at 4, IPAA I,
92 F.3d 1248 (D.C. Cir. 1996) (Nos. 95-5210 & 95-5245). DOI
also recognized that the two cases were distinct in IPAA I, as
its brief provided separate procedural backgrounds for
IPAA's suit "challenging the propriety of the MMS Associate
Director's May 1993 letter" and Samedan's effort to seek
"judicial review of the Assistant Secretary's [Samedan] deci-
sion." Appellee's Brief at 11, 16, IPAA I, 92 F.3d 1248 (D.C.
Cir. 1996) (Nos. 95-5210 & 95-5245). Given this history, we
cannot possibly find that the parties impliedly consented to
litigate the Samedan decision.

IPAA argues that the mandate rule precludes the District
Court--and now this Court--from holding that it never chal-
lenged the Samedan decision. Specifically, IPAA points to
language in our IPAA I decision suggesting that it had
challenged the Agency's decision. Under the mandate rule,
"an inferior court has no power or authority to deviate from
the mandate issued by an appellate court." Briggs v. Penn-
sylvania R.R. Co., 334 U.S. 304, 306 (1948). The mandate
rule is a "more powerful version" of the law-of-the-case
doctrine, which prevents courts from reconsidering issues
that have already been decided in the same case. LaShawn
A. v. Barry ("LaShawn II"), 87 F.3d 1389, 1393 & n.3 (D.C.
Cir. 1996) (en banc); see also Kimberlin v. Quinlan, 199 F.3d
496, 500 (D.C. Cir. 1999) (describing the law-of-the-case doc-
trine). As this Court explained in LaShawn II, this doctrine
applies to jurisdictional issues, whether those issues were
decided " 'explicitly or by necessary implication.' " LaShawn
II, 87 F.3d at 1394 (quoting Crocker v. Piedmont Aviation,
Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)). Nevertheless, courts
are "not bound by a prior exercise of jurisdiction in a case
where it was not questioned and it was passed sub silentio."
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,
38 (1952); see also LaShawn II, 87 F.3d at 1395 n.6 (explain-

ing that courts are not "bound by decisions on questions of
jurisdiction made sub silentio in previous cases 'when a
subsequent case finally brings the jurisdictional issue' to the
Court" (quoting Pennhurst State School & Hosp. v. Halder-
man, 465 U.S. 89, 119 (1984))).

Although some portions of the IPAA I decision may be
read to suggest that IPAA challenged the Samedan decision,
the question of whether IPAA had challenged that decision
was not before us, nor decided by us, even by implication.
Any confusion read into our earlier opinion stems from the
fact that this issue was not cleanly raised. Now that we are
able to consider IPAA's claim standing alone, we are able to
make a precise determination concerning its content and its
justiciability. Indeed, as explained above, its content is clear,
and it is not justiciable. Consequently, the District Court
stood on firm ground in considering whether IPAA had
challenged final agency action and holding that it did not.
Like the District Court, we do no harm to the law of this
Circuit nor the law of this case by considering this issue
today, with the question placed squarely before us unclut-
tered by other claims or cases.

In a footnote buried on the nineteenth page of its reply
brief, IPAA makes one last effort to litigate its claim, request-
ing leave to amend its complaint to include a challenge to the
Samedan decision. See 28 U.S.C. s 1653. We deny this
request. IPAA points out that this Court granted leave to
amend following a motion made at oral argument in DKT
Memorial Fund, Ltd. v. Agency for International Develop-
ment, 810 F.2d 1236, 1239 (D.C. Cir. 1987). The unique
circumstances of DKT belie its applicability in other cases.
DKT's singular holding was limited to the facts of a discrete
case dealing with international affairs. See id. at 1238-39.
In that case, leave to amend was constrained to a single
factual allegation--a factual allegation that the plaintiffs inad-
vertently omitted--that clarified the plaintiffs' standing in an
area where "current precedent does not conclusively indicate
whether" such a party has standing. Id. at 1239. The DKT
Court made plain that the appellants' omission had been

inadvertent and that, based on the facts of the case, granting
leave to amend was in the public interest. See id.

While it is possible that, like the appellants in DKT, IPAA's
failure to amend its pleading at an earlier stage in this
litigation may have been "more inadvertent than deliberate,"
id. at 1239, unlike in DKT, IPAA fails to articulate what
"interest of justice" would be served by allowing it to amend
its complaint now, roughly seven years after it filed the
original complaint and six years after DOI issued the Same-
dan decision. Additionally, in contrast to the DKT appel-
lants, who merely sought to amend their claim to add a single
factual allegation, IPAA seeks to add an entirely new claim.
However, as we have said before, new claims "cannot set sail,
initially, on appeal if courts are to operate with reasonable
speed and efficiency." Shipbuilders Council of Am. v. Unit-
ed States, 868 F.2d 452, 456 n.2 (D.C. Cir. 1989).

Finally, we question whether IPAA's amendment would
"convert their action into a justiciable case." Id. Instead,
permitting IPAA to amend its claim likely would lead this
Court into a jurisdictional morass. See, e.g., Abbott Labs. v.
Gardner, 387 U.S. 136, 148-54 (1967); Student Loan Mktg.
Ass'n v. Riley, 104 F.3d 397, 406-07 (D.C. Cir. 1997); Shell
Oil Co. v. FERC, 47 F.3d 1186, 1201-02 (D.C. Cir. 1995);
Aeronautical Radio, Inc. v. FCC, 983 F.2d 275, 284 (D.C. Cir.
1993); Shipbuilders Council, 868 F.2d at 456; Radiofone,
Inc. v. FCC, 759 F.2d 936, 939 (D.C. Cir. 1985) (Scalia, J.,
opinion). Accordingly, we are compelled to deny IPAA's
request.

III. CONCLUSION

For the reasons stated above, the District Court's judg-
ment is

Affirmed.