Gulf Coast Maritime Supply, Inc. v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10, 2017 Decided August 11, 2017

No. 16-5350

GULF COAST MARITIME SUPPLY, INC.,
APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01461)

John M. Peterson argued the cause for appellant. With
him on the briefs were Michael K. Tomenga and Peter J.
Bogard.

Jennifer M. Rubin, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
was Jonathan S. Cohen, Attorney.

Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed PER CURIAM, in which
Circuit Judge BROWN joins as to Parts I, II, III, and V.
 2
Concurring opinion as to Part IV filed by Circuit Judge
BROWN.

PER CURIAM: This case involves subjects often associated
with controversy and temptation: alcohol, tobacco, and taxes.
But the case turns on some fairly straightforward issues of
statutory interpretation, not sin.

Gulf Coast Maritime Supply, Inc. (“Gulf Coast”) had a
tobacco export warehouse permit (the “tobacco permit”), and
separate permits to import and wholesale alcohol (the “alcohol
permits”). Essentially, these permits immunize Gulf Coast
from penalties—and in the case of tobacco, taxes as well—on
the unauthorized sale of tobacco or alcohol. Both permits
require the Alcohol and Tobacco Tax and Trade Bureau
(“TTB”) to be informed of “any” ownership change. See J.A.
58 (tobacco permit); J.A. 70 (alcohol permit). Though the
alcohol and tobacco permits are governed under different laws,
their punchlines are the same: Failure to report any change in
ownership, without an application for a new permit within 30
days of the ownership change, results in the permit’s automatic
termination. See 27 U.S.C. § 204(g) (alcohol permit); 27
C.F.R. § 44.107 (tobacco permit).

Gulf Coast did not inform TTB when Gulf Coast’s
President/Director died and his widow received all of his Gulf
Coast shares. TTB has no record of Gulf Coast applying for
either a new tobacco or alcohol permit after his death. Indeed,
Gulf Coast proceeded as if no ownership change occurred—
continuing to use the signature stamp of its deceased
President/Director on reports submitted to TTB. After TTB
sent a letter indicating that the unreported ownership change
could subject Gulf Coast to civil and criminal penalties, and a
separate letter indicating that Gulf Coast was liable for unpaid
excise taxes for operating under the terminated tobacco permit,
 3
Gulf Coast went to district court seeking injunctive and
declaratory relief. The district court held Gulf Coast’s
tobacco permit remedies were barred by the Anti-Injunction
Act (“AIA”), and that the district court lacked jurisdiction to
review the alcohol permits’ automatic termination.

We agree with the district court that the AIA prohibits Gulf
Coast’s attempt to restore its terminated tobacco permit. Gulf
Coast can bring a refund suit if it disputes liability for unpaid
excise taxes. We also affirm the district court’s holding that it
lacked jurisdiction over Gulf Coast’s alcohol permit claim.

I.

A.

The Tobacco and Alcohol Permitting Schemes

Export warehouse permits issued by the Internal Revenue
Service (“IRS”) afford tobacco exporters an exemption from
federal excise taxes. See I.R.C. § 5704(b). In order to
preserve one’s export warehouse permit, the proprietor must
comply with TTB regulations. See id. One regulation
relevant here is 27 C.F.R. § 44.107. This regulation outlines
what a permitted “export warehouse proprietor” must do in the
event “the issuance, sale, or transfer of the stock of a
corporation . . . results in a change in the identity of the
principal stockholders exercising actual or legal control of the
[corporation’s] operations.” Id. The regulation requires the
“corporate proprietor” to “make application for a new permit”
“within 30 days after the change [in principal stockholder
identity] occurs.” Id. “[O]therwise,” the regulation says,
“the present permit shall be automatically terminated at the
expiration of such 30-day period.” Id. (emphasis added). If,
however, the proprietor timely applies for a new permit, “the
 4
present permit shall continue in effect pending final action” on
the new permit. Id. Though the regulation does not
expressly provide for judicial review of a denied new permit
application, the Internal Revenue Code authorizes refund
actions. I.R.C. § 7422. Refund actions not only encompass
claims against tax liability, but also issues that “hinge[] on
precisely” whether one is liable for taxes—such as an entity’s
entitlement to tax-exempt status. See, e.g., Alexander v.
“Americans United,” Inc., 416 U.S. 752, 762 (1974).

A separate type of permit, not connected to tax
exemptions, is required to import or purchase alcoholic
beverages for resale. See 27 U.S.C. § 203. Alcohol permits
are obtained through TTB; what the agency gives, it can
suspend, revoke, or annul. See id. § 204(e). In addition, an
alcohol permit “shall . . . automatically terminate[]” if it is
“leased, sold, or otherwise voluntarily transferred.” Id.
§ 204(g). If the alcohol permit is “transferred by operation of
law or if actual or legal control of the permittee is acquired,
directly or indirectly, whether by stock-ownership or in any
other manner, by any person, then such permit shall be
automatically terminated at the expiration of thirty days
thereafter.” Id. Section 204(g), like its tobacco regulation
analogue, provides a permittee with the ability to apply for a
new alcohol permit within thirty days of the ownership change,
see id., and such an application ensures “the outstanding basic
permit . . . continue[s] in effect until such application is finally
acted on by the Secretary of the Treasury.” Id. Should the
Secretary deny this application, the statute authorizes appeals
to this court (or any other circuit court). Id. § 204(h).

As to both alcohol and tobacco permits, the law establishes
a process to ensure: (1) TTB would be updated of any
ownership changes; (2) permits would automatically terminate
when an unreported ownership change occurs; and (3) the
 5
permit holder is capable of seamlessly continuing operation,
despite ownership changes, because the outstanding permit
remains in effect pending final action on a timely-submitted
application for a new permit. Judicial review is available if a
new permit is denied—a refund suit in the tobacco permit
context, and an appeal to a circuit court in the alcohol permit
context—and that review may include considering whether it
was necessary to update TTB as to a change in ownership.

Under both the tobacco and alcohol permit schemes,
automatic termination is a distinctive means by which a permit
ceases to operate. Both statutory frameworks reflect this,
treating the automatic termination process separately from the
process afforded to other forms of cessation.

In the tobacco permit context, automatic termination is
governed by its own regulatory provision. 27 C.F.R. § 44.107
speaks only to the automatic termination process, and
automatic termination is not referenced in other provisions
governing the cessation of a tobacco permit. 26 U.S.C.
§ 5713(b) requires a “show cause” hearing before TTB can
either suspend or revoke a tobacco permit, but makes no
mention of automatic termination. See id. The APA,
similarly, requires notice and an opportunity to be heard before
a license is withdrawn, suspended, revoked, or annulled—
without any reference to automatic termination. See 5 U.S.C.
§ 558(c). Gulf Coast’s own tobacco permit identified
automatic termination as one among several means by which
the permit could cease to operate. See J.A. 58 (“This permit
will remain in effect . . . until suspended, revoked,
automatically terminated, or voluntarily surrendered, as
provided by law and regulations.”).

The alcohol permit scheme also treats the automatic
termination process separately. 27 U.S.C. § 204(g) sets
 6
automatic termination apart from a permit’s suspension,
revocation, annulment, or voluntary surrendering. Compare
id., with § 204(e). Differences in an alcohol permit’s cessation
leads to different postures for judicial review. As explained
above, automatically terminated alcohol permits may be
succeeded by new permits; if a new permit application is
denied, judicial review is available. This process is distinct
from judicial review of revoked alcohol permits. See id.
(conditioning revocations on “due notice and opportunity for
[a] hearing” demonstrating that the proprietor “willfully
violated any of the” permit’s conditions). Similar to its
tobacco permit, Gulf Coast’s alcohol permit distinguishes
automatic termination from other cessations, and explicitly
states the statutory trigger for automatic termination. See J.A.
70.

B.

Gulf Coast’s Ownership Change

Gulf Coast operated a tobacco export warehouse in
Houston, Texas, pursuant to a TTB permit; it also purchased
alcohol products made available for resale at the same location.
See J.A. 5–6. Sam Geller, Gulf Coast’s President/Director,
passed away on August 2, 2013. J.A. 7 ¶ 23; 10 ¶ 42. In Gulf
Coast’s district court complaint, it described Mr. Geller as “a
principal stockholder of Gulf Coast who, as an owner, director,
and officer, exercised actual and legal control over the
operations of the corporation.” J.A. 13 ¶ 53. At the time of
his death, Mr. Geller owned forty-five percent of Gulf Coast
shares. J.A. 32. Approximately one month after Mr. Geller
died, “Barbara Druss Geller was appointed Independent
Executrix” of Mr. Geller’s estate. J.A. 13 ¶ 54. Ms. Geller,
who also owned forty-five percent of Gulf Coast’s shares
before Mr. Geller’s passing, reached a partition agreement with
 7
Mr. Geller’s estate. Under the agreement, Ms. Geller
“obtained the ownership of 100 percent of Gulf Coast stock
which” had previously been shared between her and Mr. Geller
during his life. J.A. 13 ¶ 55. Despite Ms. Geller now
possessing ninety percent of Gulf Coast’s shares and being the
majority stakeholder, Gulf Coast continued to operate as if Mr.
Geller was in charge. When TTB investigated whether an
ownership change occurred after Mr. Geller’s death, it found
Gulf Coast’s general manager still using Mr. Geller’s signature
stamp when filing TTB reports. J.A. 113 ¶ 8.

TTB informed Gulf Coast via letter that the Company’s
failure to report the change in stock ownership automatically
terminated its alcohol and tobacco permits. J.A. 72–73. The
letter also noted Gulf Coast’s continued operation without
active permits would result in tax liability, along with civil and
criminal penalties. Id. TTB sent Gulf Coast a second letter
over a month later, stating the Company owed $7,836,787.40
in taxes, penalties, and interest for operating without a valid
tobacco permit. J.A. 75–76. The agency has yet to initiate
tax collection proceedings against Gulf Coast, but Gulf Coast
has yet to cease its alcohol and tobacco operations, pay the
assessed taxes or penalties, or apply for new alcohol or tobacco
permits.

C.

Proceedings Below

Gulf Coast filed an APA action in response to TTB’s
correspondence, along with a request to enjoin the termination
of its permits. TTB filed a motion to dismiss which the district
court granted while also denying Gulf Coast’s injunction
request. The district court said the AIA precluded Gulf Coast
from attempting to restore its prior tobacco permit;
 8
“challeng[ing] the termination of its permits rather than
explicitly challenging the imposition of the excise taxes and
fines” did not exempt Gulf Coast from the AIA’s bar. See J.A.
104. Moreover, the district court recognized Gulf Coast’s
ability to bring a refund suit and, afterward, submit a new
tobacco permit application. J.A. 105. As to Gulf Coast’s
alcohol permit, the district court held the APA provided it with
no jurisdiction to review the permit’s automatic termination.
J.A. 107–08. If Gulf Coast desired judicial review, the
Company would first have to apply for a new alcohol permit
under the applicable statute. See id. Gulf Coast appealed
here, objecting as to the AIA’s application and contesting the
district court’s lack of jurisdiction over the terminated alcohol
permit. The Company did not, however, appeal the district
court’s denial of its motion for injunctive relief.

II.

As the district court dismissed Gulf Coast’s claims based
on a lack of subject-matter jurisdiction, see FED. R. CIV. P.
12(b)(1), we review the district court’s legal conclusions de
novo. A motion to dismiss the complaint requires us to take
as true all well-pled factual allegations within Gulf Coast’s
complaint—while it also obligates us to disregard any legal
conclusions, legal contentions couched as factual allegations,
and unsupported factual allegations within the complaint.
See, e.g., Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,
913 (D.C. Cir. 2015). Moreover, the court “may consider
materials outside the pleadings in deciding whether to grant a
motion to dismiss for lack of jurisdiction.” Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 n.13
(2007) (stating courts may “take notice of the full contents” of
published documents “referenced in the complaint” (citing
FED. R. EVID. 201)).
 9

III.

Pursuant to the AIA, “[n]o suit for the purpose of
restraining the assessment or collection of any tax [can be
brought] in any court by any person.” 26 U.S.C. § 7421(a).
By prohibiting challenges to tax-related laws before those laws
are enforced, the AIA “protects the Government’s ability to
collect a consistent stream of revenue.” Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 543 (2012). A tax-related law
can be challenged, only after the law is enforced, via a refund
lawsuit. See id. Determining whether the AIA bars a tax-
related lawsuit “requires a careful inquiry into the remedy
sought, the statutory basis for that remedy, and any implication
the remedy may have on [tax] assessment and collection.” Z
St. v. Koskinen, 791 F.3d 24, 29 (D.C. Cir. 2015).

Here, Gulf Coast contends the AIA is inapplicable because
the remedy it seeks does not impede tax collection. Gulf
Coast wants its terminated tobacco permit restored—an action
that would obviate TTB’s assertion of unpaid tobacco excise
taxes. The Company’s argument presupposes its tobacco
permit was revoked, not automatically terminated, and Gulf
Coast did not receive a certain due process. But the
Company’s presuppositions do not describe what actually
happened; “the statutory basis for [the] remedy” Gulf Coast
seeks is inapplicable. See id.

Gulf Coast’s theory of relief discards the difference
between revocations and automatic terminations. Indeed, the
Company’s briefs use those terms interchangeably. See, e.g.,
Gulf Coast Opening Br. 5 (stating, at the start of the page’s first
full paragraph, TTB “declar[ed] the permits revoked,” only to
say at the start of the next full paragraph that “TTB referenced
its allegation that Gulf Coast’s export warehouse proprietor’s
 10
permit terminated . . . .” (emphasis added)). Yet the
applicable statutes and regulations, as well as Gulf Coast’s own
tobacco permit, treat “automatic termination” and “revocation”
distinctly. This is not surprising—the two concepts are not the
same. Compare GARNER’S DICTIONARY OF LEGAL USAGE
344 (3d ed. 2011) (“If [a contract] ends because it’s cut short
. . . by a party’s act, it’s definitely called a termination.”), with
id. at 786 (“Revoke = to annul by taking back”). The
conceptual difference fits the procedural distinction.
Requiring notice and an opportunity for a hearing before TTB
determines one’s permit may be withheld (i.e., before it is
revoked) makes sense. Logically, however, to insist on that
same process when a party’s action already extinguished its
right to the permit (i.e., the permit automatically terminated) is
a non sequitur.

Even if there were some basis to treat the automatic
termination of Gulf Coast’s tobacco permit like a revocation,
restoring Gulf Coast’s terminated permit has a direct effect on
the assessment and collection of taxes. As the Government
rightly put it, by “seek[ing] to retroactively restore its tobacco
permit[],” “Gulf Coast seeks to . . . avoid[] past, present, and
future tax liability.” Gov’t Br. 28. If Gulf Coast’s tobacco
permit should never have been revoked in the first instance,
either because there was no change in ownership or because
Gulf Coast’s permit was improperly “revoked,” Gulf Coast
was, properly, always tax-exempt. Restoring Gulf Coast’s old
permit, as opposed to the Company applying for a new permit,
voids ab initio any unpaid excise taxes on tobacco sales made
during the period where Gulf Coast operated under its
terminated permit.

When the remedy sought directly affects tax collection, the
suit is barred by the AIA. See, e.g., Fla. Bankers Ass’n v. U.S.
Dep’t of Treasury, 799 F.3d 1065, 1070–71 (D.C. Cir. 2015)
 11
(stating, when “the obvious purpose of [the] suit[] was to
reduce the payment of taxes,” the suit would violate the AIA).
The “obvious purpose” of imposing the statutory revocation
process on automatic terminations is to restore Gulf Coast’s
prior permit, absolving it of tax liability. This “obvious
purpose” directly impairs the collection of assessed taxes,
barring the suit under the AIA. 1

Accordingly, the AIA bars Gulf Coast’s attempt to restore
its prior tobacco permit.

1
Gulf Coast seeks to exempt itself from the AIA by relying on the
Supreme Court’s decision in South Carolina v. Regan, 465 U.S. 367
(1984). Regan provides an exception to the AIA’s application when
a lawsuit challenges a federal tax and the statute “has not provided
an alternative remedy” to bringing an action in federal court. Id. at
378. Gulf Coast misapprehends Regan’s import. First, and most
simply, a refund suit challenging TTB’s change-in-ownership
finding is an “alternative remedy.” As Gulf Coast’s liability for
these assessed taxes “hinges on precisely the same legal issue as does
its eligibility for [tax-exempt]” status under its tobacco permit, a
refund suit would necessarily resolve the same issues presented here.
See Alexander, 416 U.S. at 762. Second, restoration of a prior
permit is unavailable altogether in the automatic termination
process; Gulf Coast’s tax status, unlike South Carolina’s in Regan,
is not why such relief is unavailable. Cf. Regan, 465 U.S. at 380.
Finally, if an automatic termination can result in a restored permit
after judicial review, then an “automatic termination” is neither
automatic nor a termination. Gulf Coast effectively asks us to
excise automatic termination from the regulatory scheme, in the
name of excusing Gulf Coast from tax liability. Nothing in Regan
allows us to rewrite a regulation.
 12

IV.

As with its tobacco-permit claim, Gulf Coast contends the
APA affords it a right to notice and an opportunity to be heard
before its alcohol permits may be revoked and insists that it
may bring a claim challenging that revocation in district court.
See Appellant’s Reply Br. 2 (“TTB revoked these permits
without furnishing notice of claimed violations, and without
providing an opportunity to demonstrate or achieve compliance
with lawful requirements, as required by the APA, 5 U.S.C.
§ 558(c).”). However, the alcohol-permitting scheme set out
in 27 U.S.C. § 204 takes the place of the APA’s license-
revocation procedures and provides its own process for judicial
review. Under Section 204, challenges to orders revoking
alcohol permits must be brought in circuit court, not district
court. Because Gulf Coast sought a determination that its
permits were improperly “revoked,” the district court lacked
jurisdiction to hear the company’s claim.

i.

Gulf Coast bases its claim on the APA, which provides
that, in general, an agency may suspend or revoke a license
only if it provides notice “in writing of the facts or conduct
which may warrant the action” and offers an “opportunity to
demonstrate or achieve compliance with all lawful
requirements.” 5 U.S.C. § 558(c)(1)–(2). The company
points out that it received no such process before its permits
were, in its words, “revoked.” Appellant’s Br. 1. Gulf Coast
further observes that agency decisions to revoke licenses (or
permits) are typically subject to APA review. See, e.g., Atl.
Richfield Co. v. United States, 774 F.2d 1193, 1199 (D.C. Cir.
1985); Colley v. James, --- F. Supp. 3d ---, 2017 WL 2080246,
at *13 (D.D.C. May 15, 2017). As a result, Gulf Coast argues,
 13
it properly brought suit in district court under the APA, seeking
to compel the agency to follow certain procedures before
“revoking” the company’s permits.

The APA provides for “a broad spectrum of judicial
review of agency action,” Bowen v. Massachusetts, 487 U.S.
879, 903 (1988), but Congress did not intend this “general grant
of review . . . to duplicate existing procedures for review of
agency action” or “provide additional judicial remedies in
situations where . . . Congress has provided special and
adequate review procedures,” id.; see Ctr. for Biological
Diversity v. EPA, --- F.3d ---, 2017 WL 2818634, at *8 (D.C.
Cir. June 30, 2017) (“[W]here a special statutory review
procedure exists, 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.” (alterations
and internal quotation marks omitted)). An “alternative
remedy is ‘adequate’ and therefore preclusive of APA review”
if there is “‘clear and convincing evidence’ of ‘legislative
intent’ to create a special, alternative remedy,” Citizens for
Responsibility & Ethics in Wash. (CREW) v. U.S. Dep’t of
Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017) (quoting Garcia
v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009)), such as when
Congress “provide[s] . . . an alternative review procedure,” id.
at 1245 (quoting El Rio Santa Cruz Neighborhood Health Ctr.
v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270
(D.C. Cir. 2005)).

Here the Federal Alcohol Administration Act (FAAA)
provides an adequate alternative remedy, “bar[ring] APA
review.” CREW, 846 F.3d at 1245. Under the FAAA, the
Treasury Department may suspend or revoke a permit “by
order . . . after due notice and opportunity for hearing” and must
“state the findings which are the basis for the order.” 27
U.S.C. § 204(e). Following a suspension or revocation, the
 14
permittee can file an appeal in this court or in the federal court
of appeals where its principal place of business is located. Id.
§ 204(h). Section 204 thus provides an “alternative review
procedure” for alcohol-permit revocations, which
demonstrates Congress’s intent to preclude APA review in that
context. CREW, 846 F.3d at 1245. Because Congress has
chosen to channel all alcohol-permit-revocation challenges
through the courts of appeals under section 204, Gulf Coast
cannot bring a revocation challenge in district court under the
APA.

ii.

Importantly, Gulf Coast has repeatedly and forcefully
made clear that it seeks only to challenge a revocation of its
alcohol permits by the agency, based on the agency’s failure to
provide the Company with certain process it was allegedly due.
See, e.g., Appellant’s Reply Br. 1, 2, 4; Statement of Issues,
ECF No. 1652649 (framing its challenge as one “to the
revocation, by the [agency], of [the company’s] basic alcohol
permits”). As we have explained, however, no revocation
challenge may be brought in district court.

To be clear, the TTB’s letter to Gulf Coast is not a
revocation of the Company’s alcohol permits. Far from it.
As we see it, the letter is a formal notification to Gulf Coast
that, in the agency’s view, the Company’s permits have
automatically terminated and a warning that the company
would be subject to penalties for continuing to operate. Thus,
contrary to what the concurrence suggests, we in no way
believe that this Court has jurisdiction under Section 204 over
Gulf Coast’s claim that its permits were somehow “revoked.”

However, Gulf Coast’s argument to us for why the district
court had jurisdiction is that its permits were revoked and that
 15
procedurally defective permit revocations can be challenged in
district court. Because procedurally defective permit
revocations cannot be challenged in district court, and because
Gulf Coast has given us no other reason to reverse the district
court, we deny the Company’s appeal. 2

We would be confronted with a different question,
however, had Gulf Coast instead argued that it was challenging
a determination by the agency that its permits had
automatically terminated. See 27 C.F.R. § 44.107. In the
past, we have found final agency action and allowed parties to
bring pre-enforcement challenges under somewhat similar
circumstances, but based on reasoning very different from the
kind Gulf Coast advances here. For example, in CSI Aviation
Services, Inc. v. U.S. Department of Transportation, 637 F.3d
408 (D.C. Cir. 2011), we concluded that we could review a
letter warning the petitioner that it “ha[d] been acting as an
unauthorized indirect air carrier in violation of [49 U.S.C.]
section 41101” and that it must cease and desist or face civil
penalties. Id. at 410. We explained that the letter was
reviewable, in part, because it represented the agency’s

2
Our concurring colleague is of course correct that the “conclusory
label[s]” a party invokes are irrelevant to whether we have subject-
matter jurisdiction. Concurring Op. 1. We do not hold Gulf
Coast’s use of the term “revocation” somehow gives this Court
jurisdiction over the Company’s claim under Section 204. In fact,
we agree that this Court has no jurisdiction to hear an appeal under
Section 204 over anything other than an order “denying an
application for, or suspending, revoking, or annulling, a basic
permit”—regardless of how the challenger labels it. All we have
done here is reject Gulf Coast’s argument to us that procedurally
defective revocations can proceed through district court under the
APA. That is reason enough to reject Gulf Coast’s appeal and
affirm the district court.
 16
definitive position on the legality of the petitioner’s actions and
because the letter “imposed an immediate and significant
burden” on the petitioner by declaring its operations unlawful,
among other reasons. Id. at 412. And in Ciba-Geigy Corp.
v. EPA, 801 F.2d 430 (D.C. Cir. 1986), we concluded that the
district court could review a letter warning that if the appellant
failed to revise the labels of a pesticide, the EPA would
consider that pesticide mislabeled and bring a misbranding
action. Id. at 433. That letter, we explained, was reviewable
because it reflected the agency’s definitive position on the
lawfulness of the company’s conduct and warned that failure
to “conform to the new labeling requirement” could subject the
company to “civil and criminal penalties.” Id. at 437.

Here, TTB’s letter informed Gulf Coast that

[A]s a result of the[] unreported changes, per . . .
27 U.S.C. § 204(g) . . . Gulf Coast Maritime
Supply, Inc. has been operating without the
required permits since September 2013 . . . .
Because you lack the required permits, you are
not authorized to engage in business as . . . an
alcohol beverage wholesaler or importer. Any
continued operation as such subjects you to all
applicable . . . [Federal Alcohol
Administration] Act criminal and civil
penalties.

J.A. 73 (emphasis added).

As in our earlier cases, this letter identifies how the agency
understands the law to apply to a particular party (Gulf Coast)
and warns the party of legal consequences (civil and criminal
penalties) that could follow if the party fails to comply with the
agency’s view. Although some of the facts surrounding Gulf
 17
Coast’s purported ownership change may be in dispute, these
cases could be read to suggest that Gulf Coast, had it proceeded
differently, might have been able to bring an APA claim in
district court to test the agency’s determination that an
ownership change occurred and that the permits had therefore
automatically terminated. Gulf Coast, however, made no such
argument before us in response to the government’s
jurisdictional challenge. And because the issue was not
briefed, we do not decide it. See Tao v. Freeh, 27 F.3d 635,
641 n.7 (D.C. Cir. 1994).

The extent of Gulf Coast’s argument is that the APA
allows challenges in district court to allegedly procedurally
defective alcohol-permit revocations. That is simply not the
case. Because we reject that argument, and because Gulf
Coast has forfeited any other argument, we affirm the district
court’s order finding that it lacked jurisdiction over Gulf
Coast’s alcohol-permits claim.

V.

The district court was correct to conclude the AIA bars
Gulf Coast’s attempt to restore its tobacco permit, and equally
correct to conclude Gulf Coast’s sidestepping of the statutory
scheme provides no jurisdiction over its alcohol permit claim.

Affirmed.
 BROWN, Circuit Judge, concurring in part: While I join
in the Court’s disposition and in Parts I–III, I write separately
as to Part IV. There, the Court’s analysis departs from the
statutory text to entertain Gulf Coast’s legal conclusion that its
alcohol permit was revoked, not automatically terminated.
The Court provides no reason for adopting Gulf Coast’s
labeling. This is unwarranted, as “we do not assume the truth
of legal conclusions, nor do we accept inferences that are
unsupported by the facts set out in the complaint.” Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). Indeed, we are to
disregard “labels and conclusions” when evaluating whether a
complaint states a claim for relief, see Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), not indulge them. 1

1
To be sure, there is ambiguity over the extent to which the Supreme
Court’s decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2009) apply to FED. R. CIV. P. 12(b) challenges outside Rule
12(b)(6). And here, TTB did not move to dismiss under Rule
12(b)(6); only for lack of subject-matter jurisdiction under Rule
12(b)(1). Nevertheless, any ambiguity is beside the point:
Twombly and Iqbal certainly speak to the pleading standards for
stating a claim for relief under Rule 8, and Gulf Coast’s “revocation”
labeling fails to meet that standard. Cf. Xia v. Kerry, 73 F. Supp. 3d
33, 41 (D.D.C. 2014) (acknowledging a court’s power to “dismiss[]
a complaint sua sponte for failure to state a claim”). Under the
statutes at issue, whether Gulf Coast’s conclusory labeling of
“revocation” is true informs whether our subject-matter jurisdiction
is bona fide. We therefore must heed the limits on sufficient
jurisdictional pleading: (1) “we do not assume the truth of legal
conclusions,” Arpaio, 797 F.3d at 19; and (2) courts lack subject-
matter jurisdiction when the claim “clearly appears to be immaterial
and made solely for the purpose of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). There is no basis
to read the TTB letter as a revocation, rather than confirming Gulf
Coast’s alcohol permit automatically terminated. This leaves only
one logical conclusion: Gulf Coast labeled what happened a
“revocation” to invoke Article III jurisdiction. Dismissing the
Company’s claim for lack of jurisdiction is proper.
 2

The Court manifests a misapprehension of pleading
standards. Testing the sufficiency of allegations requires
more than merely refusing to rest the Court’s legal conclusions
on the complaint’s; legal conclusions within the complaint are
to be disregarded, with the Court then homing in on the “well-
pleaded, nonconclusory factual” “nub of the plaintiff’s
[claim],” if any. See, e.g., Iqbal, 556 U.S. at 680 (explaining
the analysis in Twombly). Then, the Court is to determine
whether plausible legal conclusions are suggested from those
facts alone. See id. Unfortunately, the Court invokes this
step-by-step analysis only insofar as it facilitates its desired
ends:

First, far from disregarding the complaint’s legal
conclusions, the Court deploys Gulf Coast’s revocation
labeling as the premise for analyzing whether the district court
had jurisdiction over the Company’s alcohol permit claim. By
itself, this is impermissible. See id.

Second, after the Court concludes the district court lacked
jurisdiction because we (and our sister circuits) possess
jurisdiction over revocation claims under 27 U.S.C. § 204, the
Court (conveniently) drops Gulf Coast’s revocation label—lest
the Court have to explain why it does not want to deal with
Gulf Coast filing an amended complaint here, as the Company
requested. See Gulf Coast Opening Br. 39 (“If this Court finds
that it has exclusive jurisdiction over this matter, we ask that it
remand this matter to the district court with modification of the
Order so dismissal is not with prejudice and the action may be
filed before this Court, or in the consideration of judicial
economy, the Court deems the complaint to be filed in this
Court.”). By all but saying Gulf Coast’s revocation pleading
is “[f]ar from” plausible, see Op. 14, the Court’s entire
discussion of the extent of our jurisdiction over revocations is
 3
proved a frolic; a cautionary tale in why one should not start on
the wrong foot.

Third, the Court claims Gulf Coast could have engaged in
a wild-goose chase through the outer reaches of our “final
agency action” case law to state an APA claim in district court
over the permit’s automatic termination. But if Gulf Coast’s
alcohol permit claim is deficient because the Company sought
jurisdiction under the wrong statute or in the wrong court, or
simply failed to draw the same liability theories as the Court
from plead facts, why is prejudicial dismissal not reversible
error? Because “[t]he court should freely give leave [to
amend a complaint] when justice so requires,” FED. R. CIV. P.
15 (a)(2), dismissals without prejudice are standard fare. I
have no problem affirming the district court’s dismissal with
prejudice because any amendment would be futile. The
statutory scheme set forth by Congress establishes a process
that precludes Gulf Coast from doing what it did: Refusing to
apply for a new permit application, using the signature stamp
of its deceased owner to continue operating with an
automatically terminated permit, and then coming to an Article
III court to ask for the due process afforded to revocations.
But the Court is not content with a straightforward, textual
analysis. Why are we not giving Gulf Coast the opportunity
to test the Court’s intriguing theory with an amended
complaint? Cf. City of Dover v. United States EPA, 40 F.
Supp. 3d 1, 5–6 (D.D.C. 2013) (“[B]ecause the Court did
suggest an alternative theory based on the facts pled, plaintiffs
should have been permitted to test that theory. . . . It was error,
then, to dismiss plaintiffs’ complaint with prejudice.”).

By adopting Gulf Coast’s legal conclusion, the Court is led
astray from some basic points that 27 U.S.C. § 204 and our
precedent establish: (1) This Court and the district court lack
jurisdiction over Gulf Coast’s alcohol permit claim because
 4
there is no jurisdiction over automatic terminations without the
denial of a new permit application; (2) The April 2016 TTB
letter is not “final agency action;” and (3) Even if the April
2016 letter could somehow be considered “final agency
action,” 27 U.S.C. § 204 adequately displaces APA review of
automatic terminations. For these reasons, and for the Court’s
lack of reasons, I write separately—even as I agree that the
district court lacked jurisdiction over Gulf Coast’s alcohol
permit claim.

I.

Like its tobacco permit claim, Gulf Coast insists the APA
affords it a right to notice and an opportunity to be heard before
its alcohol permit may cease operating. But Gulf Coast’s
argument is not based in the statutory scheme Congress enacted
to regulate alcohol permits.

27 U.S.C. § 204 sets forth the alcohol permitting scheme.
The statute provides a certain process due when a permit is
“revoked,” “suspended,” or “annulled” that is not due when
events result in an “automatically terminated” permit.
Compare id. § 204(e) (explicitly requiring “due notice and
opportunity for hearing to the permittee” when a permit is
subject to “revocation, suspension, and annulment”) with id. §
204(g) (“A basic permit shall continue in effect until
suspended, revoked or annulled as provided herein . . . except
that . . . if transferred by operation of law or if actual or legal
control of the permittee is acquired, directly or indirectly,
whether by stock-ownership or in any other manner, by any
person, then such permit shall be automatically terminated . . .
.” (emphasis added)). Section 204(g) goes on to explain,
similar to the tobacco permit scheme, that an automatically
terminated permit may be succeeded by a timely-filed
application for a new permit. See id. There is no such
 5
proviso within § 204(e) if a permit is revoked, suspended, or
annulled. This distinction informs the meaning of § 204(h)’s
discussion of judicial review.

Section 204(h) does not mention appeals from an
automatic termination, but it does mention appeals “from any
order of the Secretary of the Treasury denying an application
for . . . a basic permit.” Id. § 204(h). The section similarly
authorizes appeals in response to a permit’s suspension,
revocation, or annulment. See id. With suspensions,
revocations, and annulments being explicitly cross-referenced,
the natural reading of § 204(h)’s reference to “denying an
application for . . . a basic permit” encompasses the denial of a
new permit application filed in response to an automatically
terminated permit. The upshot of this reading is that, like in
the tobacco permitting scheme, revocation and automatic
termination are not the same. Nevertheless, Gulf Coast
persists in claiming its entitlement to § 204’s revocation
process when its alcohol permit automatically terminated.

II.

Gulf Coast claims a letter from TTB establishes that its
permit was revoked. As mentioned above, in April of 2016,
TTB wrote Gulf Coast, stating “[i]nformation recently received
by [TTB] provide[d] the agency with reason to believe that”
Gulf Coast was operating without valid permits. JA 72. The
letter informed Gulf Coast that “such activities violate federal
law,” and “[c]ontinued operation without the required permits[]
subjects you to criminal penalties and potential civil liability.”
Id. It then goes on to note Gulf Coast’s unreported change in
ownership—characterizing that ownership change as satisfying
the “automatic termination” definitions within the alcohol and
tobacco permitting schemes—and concludes, “as a result of
these unreported changes, per . . . 27 U.S.C. § 204(g) . . . [Gulf
 6
Coast] has been operating without the required permits since
September 2013.” JA 73 (emphasis added). As to Gulf
Coast’s alcohol permit, revocation is neither mentioned nor
alluded to, and the statutory process afforded to revocations
(under either the alcohol permitting statute or the APA) is not
cited. But to Gulf Coast, this correspondence was a “letter
decision” that its alcohol permit retroactively terminated—by
which the Company means, “revoked”—making the letter
“final agency action” subject to judicial review under the APA.
See, e.g., Gulf Coast Opening Br. 29.

Section 204 renders the denial of a new permit
application—an application made in response to an
automatically terminated permit—final agency action subject
to judicial review. See 27 U.S.C. § 204(h) (stating the mere
application for a new permit allows “the outstanding basic
permit [to] continue in effect until such application is finally
acted on by the Secretary of the Treasury,” and if that “final[]
act[ion]” is denial, judicial review may ensue in a circuit court
of appeals). Gulf Coast did not avail itself of this process;
short-circuiting the statute’s course by skipping over the new
permit application. Doing so left the Company without the
statutorily specified “final agency action” that would trigger
judicial review, either under the alcohol permit statute or the
APA. See, e.g., Reliable Automatic Sprinkler Co. v.
Consumer Prods. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir.
2003); see also 5 U.S.C. § 704. The letter is not a stand-in for
Gulf Coast’s end-run around § 204(h).

Deeming the April 2016 letter “final agency action” would
be an unjustifiable expansion of the APA’s scope. The letter’s
content and purpose are merely advisory; it reminds Gulf Coast
of the consequences of operating with a terminated permit and
without a new permit application. Informing Gulf Coast of
extant facts does not “impose[] an obligation, den[y] a right, or
 7
fix[] some legal relationship.” See, e.g., Reliable Automatic
Sprinkler, 324 F.3d at 731 (discussing what constitutes “final
agency action” under the APA). The letter is reasonably read
as indicating when the statutory trigger automatically
terminating Gulf Coast’s alcohol permit occurred—upon the
company’s failure to timely report an ownership change. But
“final agency action” rests on the agency consummating its
decision-making process. See Bennett v. Spear, 520 U.S. 154,
177–78 (1997). Moreover, the legal consequences (civil and
criminal penalties) identified within the TTB letter are clearly
understood to reference the consequences of operating without
a valid alcohol permit, not the consequences of refusing to
comply with the letter. This also disqualifies the letter from
constituting “final agency action.” Cf. id. Reading the letter
in line with Gulf Coast’s legal theory, as the Court does,
impermissibly “accept[s] inferences that are unsupported by
the facts.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d
905, 913 (D.C. Cir. 2015).

III.

As both the Supreme Court and this Court recognize, the
APA is not to “duplicate existing procedures for review of
agency action” or “provide for additional judicial remedies in
situations where Congress has provided special and adequate
review procedures.” Bowen v. Massachusetts, 487 U.S. 879,
903 (1988); Citizens for Responsibility and Ethics in
Washington v. U.S. Dep’t of Justice, 846 F.3d 1234, 1244 (D.C.
Cir. 2017). An “adequate” remedy “need not provide relief
identical to relief under the APA,” Garcia v. Vilsack, 563 F.3d
519, 522 (D.C. Cir. 2009)—it can, in fact, be less generous than
APA relief, see id. (stating a remedy is not “adequate” when
that remedy itself “offers only doubtful and limited relief”); see
also Council of & for the Blind of Del. Cnty. Valley, Inc. v.
Regan, 709 F.2d 1521, 1532–33 (D.C. Cir. 1983) (explaining
 8
that the alternative review need not be “more effective” than
APA review). Accordingly, even if one were to consider the
letter TTB issued “final agency action”—rather than merely
advising Gulf Coast of extant facts and the consequences of
operating without a permit—§ 204 displaces judicial review
under the APA.

The new permit application process allowed for Gulf
Coast to seek judicial review of the alcohol permit’s automatic
termination. Upon the transfer of Mr. Geller’s stock, Gulf
Coast could have filed an application for a new permit with
TTB while citing no change in ownership. TTB,
independently verifying the ownership assertion in the
application and being aware of Mr. Geller’s death and
corresponding stock transfer, might have denied the new
permit application. If so, § 204(h) would have allowed Gulf
Coast to appeal that denial to a circuit court, where Gulf Coast
could contest whether an ownership change occurred. During
the new permit application process, Gulf Coast could have
continued operating under its prior alcohol permit without
risking any penalty. Had the Company then appealed the new
permit denial, § 204(h) would have stayed TTB’s decision—
preserving Gulf Coast’s old permit, and thus continuing to
immunize it from penalties.

To be sure, § 204 required Gulf Coast to do what it claims
it did not have to do—file an application for a new permit. But
even then, as explained above, Gulf Coast was under no
obligation to cite any ownership change; TTB bore the burden
of establishing whether Gulf Coast’s assertion of ownership
was bona fide before approving a new permit application.
Section 204 therefore gave Gulf Coast the opportunity to
contest any TTB assertion of an ownership change; the “same
genre” of relief the Company asks for under the APA here,
placing § 204 within the realm of “adequate” APA
 9
displacement. See El Rio Santa Cruz Neighborhood Health
Ctr. V. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265,
1271 (D.C. Cir. 2005). The additional paperwork may seem
cumbersome, but it is also de-minimis when compared to the
risk Gulf Coast took in not filing anything at all after the stock
transfer. In any event, an adequate alternative to APA review
need not be “more effective” or more equitable than APA
review. See Council of & for the Blind of Del. Cnty. Valley,
709 F.2d at 1532–33; cf. Fornaro v. James, 416 F.3d 63, 69
(D.C. Cir. 2005) (“Yet however unsatisfactory the CSRA’s
approach may appear to the plaintiffs, the fact that a remedial
scheme chosen by Congress vindicates rights less efficiently
than a collective action does not render the CSRA remedies
inadequate for purposes of mandamus.”). Here, the alcohol
permitting statute afforded Gulf Coast an adequate opportunity
to seek judicial review of its ownership status. That Gulf
Coast chose—and it was a choice—to not take advantage of the
process Congress articulated does not make the process
inadequate. Cf. Women’s Equity Action League v. Cavazos,
906 F.2d 742, 751 (D.C. Cir. 1990) (“Plaintiffs urge, however,
that individual actions against discriminators cannot redress the
systemic lags and lapses by federal monitors about which they
complain. . . . But under our precedent, situation-specific
litigation affords an adequate, even if imperfect, remedy.”).

I agree with my colleagues that the district court lacked
jurisdiction over Gulf Coast’s alcohol permit claim. But I do
not agree with their intriguing theories for bending pleading
standards, the statute Congress enacted, and our precedent on
“final agency action.” We should affirm the judgment of the
district court because neither it—nor we—possess jurisdiction
over Gulf Coast’s alcohol permit claim.