United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2001 Decided June 19, 2001

No. 00-5218

Murphy Exploration and Production Company,
Appellant

v.

United States Department of the Interior and
Gale A. Norton,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 99cv00570)

Stephen M. McNabb argued the cause for appellant. With
him on the briefs was L. Poe Leggette.

Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Lois J. Schiffer, Assistant Attorney General, and Jeffrey
Dobbins, Attorney.


Before: Ginsburg, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Dissenting opinion filed by Circuit Judge Rogers.

Sentelle, Circuit Judge: Murphy Exploration and Produc-
tion Co. ("Murphy") appeals the District Court's dismissal, for
lack of jurisdiction, of its claim that the Department of the
Interior ("DOI") failed to reimburse it for mining royalty
overpayments. Murphy's lawsuit invokes the Federal Oil and
Gas Royalty Simplification and Fairness Act ("FOGRSFA"),
which confers jurisdiction on courts to consider challenges to
"administrative proceedings" that the agency fails to resolve
within 33 months after they are commenced. Murphy pro-
poses that it commenced such an "administrative proceeding"
when it submitted a refund request to DOI. Because we
conclude that FOGRSFA's 33-month deadline period begins
to run when a party submits a refund request, we hold that
the district court erroneously concluded that it lacked juris-
diction to hear Murphy's claim.

I. BACKGROUND

Several acts of Congress confer on DOI the authority to
issue leases to mining companies that wish to extract miner-
als from lands administered by the federal government. See,
e.g., the Mineral Leasing Act, 30 U.S.C. s 181 et seq., the
Mineral Leasing Act for Acquired Lands, 30 U.S.C. s 351 et
seq., and the Outer Continental Shelf Lands Act, 43 U.S.C.
s 1331 et seq. As a condition of their leases, lessees must
pay the government royalties based on the value of the
minerals they produce.

In response to a series of court decisions between 1988 and
1998, DOI's Minerals Management Service ("MMS") altered
the method it uses to calculate the royalties that producers
must pay when they extract gas from its lands. See Dia-
mond Shamrock Exploration Co. v. Hodel, 853 F.2d 1159 (5th
Cir. 1988); Independent Petroleum Ass'n of Am. v. Babbitt,
92 F.3d 1248 (D.C. Cir. 1996); In re Century Offshore Mgmt.
Corp., 111 F.3d 443 (6th Cir. 1997). Royalties now are based


on a company's "gross proceeds." A gas producer's "gross
proceeds" include "buydowns" (moneys paid by a purchaser
to reduce the price at which gas covered by an initial contract
will be sold in the future), but do not include "buyouts"
(payments by a gas purchaser to terminate a contract), or
"take-or-pay payments" (payments a purchaser is obliged to
make even if it does not take the gas it contracted to buy).
Mobil Exploration and Producing U.S., Inc., MMS-94-0151-
OCS (1998); Antelope Prod. Co., MMS-96-0068-O&G (1998).

A producer may challenge an MMS order to pay royalties
in two ways. First, it may pursue an administrative appeal.
30 C.F.R. Pt. 290. Second, the producer is entitled to imme-
diate judicial review if the agency fails to resolve the royalties
dispute timely. The latter type of challenge is authorized by
FOGRSFA. Enacted in 1996, FOGRSFA requires DOI's
Secretary to "issue a final decision in any administrative
proceeding, including any administrative proceedings pending
on August 13, 1996, within 33 months from the date such
proceeding was commenced or 33 months from August 13,
1996, whichever is later." 30 U.S.C. s 1724(h)(1). If the
Secretary fails to do so within the allotted time, she "shall be
deemed to have issued a final decision in favor of the Secre-
tary ... and the appellant shall have a right to judicial review
of such deemed final action in accordance with Title 5." Id.
s 1724(h)(2)(B). FOGRSFA further defines "administrative
proceeding" as "any Department of the Interior agency pro-
cess in which a demand, decision or order issued by the
Secretary ... is subject to appeal or has been appealed." Id.
s 1702(18). In other words, DOI's failure to resolve an
"administrative proceeding" relating to a royalties dispute
within 33 months triggers the right to immediate judicial
review.

In 1999, DOI promulgated regulations interpreting
FOGRSFA's 33-month deadline. 64 Fed. Reg. 26,240 (1999).
As the agency sees it, s 1724(h)'s reference to "any adminis-
trative proceedings" includes only administrative appeals--or,
to say the same thing, the 33 months begin to run only when
a party files a notice of appeal with the agency. "For appeals
involving Federal oil and gas leases covered by this new


provision, DOI has 33 months from the date a proceeding is
commenced to complete all levels of administrative review."
Id. at 26,240 (emphasis added). If DOI fails to "decide the
appeal within 33 months, the appeal is deemed decided for or
against DOI, depending on the type of order and the mone-
tary amount at issue in the appeal." Id. (emphasis added).
FOGRSFA's deadline is not triggered, for example, "on the
date that an MMS order is received by the recipient." Id. at
26,248.

On February 3, 1989, Murphy--a producer that holds oil
and gas leases on a number of DOI-administered lands--
submitted a refund request claiming that the agency owed it
some $4.1 million for past royalty overcharges. Murphy's
claim was not resolved for nearly ten years. On November 3,
1998, MMS issued an order instructing Murphy to pay it
nearly $368,000 in outstanding royalties. The agency deter-
mined that Murphy had overpaid by nearly $990,000 on
certain contracts, but that it owed $1.3 million in royalties on
certain others. Murphy appealed administratively on Decem-
ber 4, 1998.

On March 5, 1999, with its administrative appeal still
pending, Murphy challenged the November 3 order in the
United States District Court for the District of Columbia.
Murphy's lawsuit cited FOGRSFA for the proposition that
DOI's failure to resolve timely its refund request was a final
agency action entitling it to immediate judicial review. Be-
cause, Murphy argued, its refund request set in motion an
"agency process" that could result in the Secretary issuing "a
demand, decision or order" that "is subject to appeal," 30
U.S.C. s 1702(18), it therefore was an "administrative pro-
ceeding" within the meaning of FOGRSFA. And because its
request had been pending for more than 33 months when the
statute was enacted, the company was entitled to immediate
judicial review. Murphy also argued that, even assuming the
validity of DOI's interpretation of the statute, it was entitled
to immediate judicial review of one portion of its refund
request--a December 1993 DOI order that it had appealed
and that the agency later rescinded. Finally, Murphy argued
that, quite apart from FOGRSFA, the expiration of nearly ten


years from the filing of its refund request to DOI's November
1998 order constituted an unreasonable delay under Telecom-
munications Research & Action Center v. FCC, 750 F.2d 70
(D.C. Cir. 1984).

The district court on January 27, 2000 dismissed Murphy's
suit for lack of jurisdiction, on the grounds that FOGRSFA's
33-month deadline had not yet expired. Murphy Explora-
tion & Prod. Co. v. Dep't of the Interior, No. 99-570 (D.D.C.
Jan. 27, 2000). The court analyzed the statute according to
the two-step framework established in Chevron U.S.A. Inc. v.
NRDC, 467 U.S. 837 (1984). At step one, the court found
FOGRSFA to be ambiguous on the question whether a refund
request (or any other proceeding that is not an appeal) is one
of the "any administrative proceedings" that triggers the
statute's 33-month deadline. Because "Congress cannot be
said to have spoken directly to the specific issue at hand," the
court proceeded to step two and deferred to DOI's interpreta-
tion that FOGRSFA's 33-month period applies only to admin-
istrative appeals. Murphy Exploration, slip op. at 13. The
court also rejected Murphy's alternative claim that the pas-
sage of ten years since it filed its refund request was an
unreasonable delay, and hence a reviewable action: "[w]hile
the ten-year delay in this case is indeed worrisome, it does
not constitute final agency action." Id. at 10.

II. ANALYSIS

A. Procedural issues

DOI identifies two procedural hurdles which it contends
prevent this Court from considering Murphy's argument that
the district court had jurisdiction to hear its suit. Both are
easily cleared. The agency first claims that Murphy did not
preserve this issue for appeal since its complaint did not
expressly dispute the lawfulness of DOI's regulations. In
fact, Murphy's claim that the district court had jurisdiction is
properly before us. The complaint's failure to specifically
attack the regulations is irrelevant, since Murphy's suit was
not a facial challenge. Rather, the company sought an order
to compel DOI to refund what it claimed were royalties


overpayments. It was not until the agency challenged the
district court's jurisdiction--on the grounds that FOGRSFA's
33-month deadline had not yet expired--that the validity of
the regulations became an issue. In response to DOI's
motion to dismiss, Murphy explained its view that, agency
regulations notwithstanding, FOGRSFA gives it the right to
immediate judicial review. Murphy therefore has preserved
this issue for appeal.

DOI further proposes that Murphy waived its challenge to
the agency's interpretation of FOGRSFA because it did not
advance that view during the rulemaking process. To be
sure, in Ohio v. EPA, 997 F.2d 1520 (D.C. Cir. 1993), we
declined to consider an argument that the parties had waived
"by failing to raise it during rulemaking proceedings before
the agency." Id. at 1528. But Ohio is distinguishable. In
that case, the parties had participated in the promulgation of
an EPA rule that they then judicially challenged. Because
they had taken part in that prior proceeding, it made sense to
speak of "the States' failure to raise [their argument] below."
Id. By contrast, the record here does not reveal that Mur-
phy participated in the rulemaking that produced DOI's
regulations. Because Murphy had no role in the rulemaking,
it cannot be said to have "waived" its argument by failing to
advance it during those proceedings.

B. Chevron and the Standard of Review

The basic issue in this case is one of statutory construction.
Does FOGRSFA's definition of "any administrative proceed-
ing," the commencement of which triggers the statute's 33-
month deadline, embrace the filing of a refund request? Or
is "any administrative proceeding" limited to administrative
appeals? Because our task is to measure DOI's regulations
against FOGRSFA's text, this case might seem to be an
appropriate one for analysis under the rubric of Chevron.
Under Chevron, a court must first determine "whether Con-
gress has directly spoken to the precise question at issue."
467 U.S. at 842. If so, that "is the end of the matter; for the
court, as well as the agency, must give effect to the unambig-
uously expressed intent of Congress." Id. at 842-43. If


not--that is, if "the statute is silent or ambiguous with
respect to the specific issue"--we will defer to "a reasonable
interpretation made by the administrator of an agency." Id.
at 843, 844.

We conclude, however, that Chevron deference is inappro-
priate in this case. Chevron does not apply to statutes that,
like s 1724(h), confer jurisdiction on the federal courts. It is
well established that "[i]nterpreting statutes granting juris-
diction to Article III courts is exclusively the province of the
courts." Ramey v. Bowsher, 9 F.3d 133, 136 n.7 (D.C. Cir.
1993); see also Reeb v. Economic Opportunity Atlanta, Inc.,
516 F.2d 924, 926 (5th Cir. 1975) ("The courts, however, have
to make their own determination whether the district court
has jurisdiction, rather than defer to the [agency] in the first
instance."); cf. Crandon v. United States, 494 U.S. 152, 177
(1990) (Scalia, J., concurring in the judgment) (arguing that
Chevron deference is inapplicable to criminal statutes, which
are "not administered by any agency but by the courts"). As
the Supreme Court has explained, when Congress has "estab-
lished an enforcement scheme" that gives a party "direct
recourse to federal court," it is "inappropriate to consult
executive interpretations of [the jurisdiction-conferring stat-
ute] to resolve ambiguities surrounding the scope of [the
party's] judicially enforceable remedy." Adams Fruit Co.,
Inc. v. Barrett, 494 U.S. 638, 650 (1990).

A principal reason why courts pay agencies no deference on
jurisdiction-conferring statutes is that such statutes do not
grant powers to agencies. As the Supreme Court has ex-
plained, "a congressional delegation of administrative authori-
ty" is a "precondition to deference under Chevron." Id. at
649. Unless the agency is the recipient of congressionally
delegated power, there is no reason to defer to its interpreta-
tions of the statute that does the delegating. The typical
Chevron case involves Congress extending an administrative
power to an agency--for instance, an act that grants DOI the
authority to administer federally owned lands, or a statute
empowering the Environmental Protection Agency to regu-
late nitrogen-oxide emissions. A jurisdiction-conferring stat-
ute, by contrast, grants judicial power to the courts--namely
the power to hear certain cases or controversies. Because


jurisdiction-conferring statutes do not delegate authority to
administrative agencies, courts do not extend Chevron defer-
ence to an agency's construction of them.

It is true that the statute before us contemplates a regula-
tory role for the agency. However, the implicit delegation of
duties concerning the regulations for administrative appeals
is limited to precisely that subject and does not extend by its
terms or placement to any implication of authority to the
agency to "regulate the scope of the judicial power vested by
the statute." Id. at 650. As Justice Marshall wrote in
Adams Fruit, the fact that "Congress envisioned ... a role
for [an administrative agency] in administering [a] statute,"
by itself "does not empower the Secretary to regulate the
scope of the judicial power vested by the statute." Id. Just
so here. The fact that an agency has made a determination
such as the establishment of regulations governing adminis-
trative appeals, does not empower it to " 'bootstrap itself in
an area in which it has no jurisdiction,' " id. (quoting Federal
Maritime Comm'n v. Three Train Lines, Inc., 411 U.S. 726,
745 (1973) (specifically the grant of jurisdiction to the
courts)).

Moreover, administrative agencies have no particular ex-
pertise in determining the scope of an Article III court's
jurisdiction. Of course, "practical agency expertise is one of
the principal justifications behind Chevron deference." Pen-
sion Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-52
(1990). Absent congressional delegation, if an agency has
promulgated a regulation outside the scope of its specialized
knowledge, courts will not defer to it. See, e.g., Professional
Reactor Operator Soc'y v. NRC, 939 F.2d 1047, 1051 (D.C.
Cir. 1991) (affording no Chevron deference to agency inter-
pretations of statutes "outside the agency's particular exper-
tise and special charge to administer"). It goes without
saying that the jurisdiction of the federal courts is outside
agencies' expertise. See, e.g., Florida Manufactured Hous.
Ass'n, Inc. v. Cisneros, 53 F.3d 1565, 1574 n.2 (11th Cir.
1995); Ramey, 9 F.3d at 136 n.7 (explaining that "agencies
can bring no particular expertise to the subject"). Our
holding that DOI's interpretation of FOGRSFA's 33-month


deadline is entitled to no deference thus is but a specific
application of the general principle that an agency's regula-
tions deserve no deference where they proceed neither from a
congressional delegation nor from agency expertise.

The inapplicability of Chevron to jurisdiction-conferring
statutes is also informed by a federal court's obligation to
consider sua sponte its jurisdiction to hear a case. See, e.g.,
Citizens for Abatement of Aircraft Noise, Inc. v. Metropoli-
tan Wash. Airports Auth., 917 F.2d 48, 53 (D.C. Cir. 1990)
("[I]t is well established that a court of appeals must first
satisfy itself of its own jurisdiction, sua sponte if necessary,
before proceeding to the merits."), aff'd, 501 U.S. 252 (1991).
Courts have an obligation to examine the source of their own
power. In the same way that a court must determine for
itself that it has the jurisdiction to hear a dispute, even if the
parties have so stipulated, a court must determine the scope
of a congressional conferral of jurisdiction without consulting
the views of an agency. Put another way, neither the parties
to a private action nor an administrative agency may dictate
the scope of an Article III court's jurisdiction.

C. Jurisdiction under FOGRSFA

Because we conclude that the Chevron framework is inap-
plicable to FOGRSFA's conferral of jurisdiction on the feder-
al courts, we must decide, as an original matter, whether the
district court had jurisdiction to hear Murphy's lawsuit. The
outcome depends on what the meaning of the words "any
administrative proceeding" is. More precisely, we must con-
sider whether a refund request falls within the statute's
definition of "any administrative proceeding"--in other words,
whether FOGRSFA's 33-month deadline begins to run when
a party files a request for a refund. We hold that it does.

As always, in interpreting a statute, we begin with the text
of the statute itself. Carter v. United States, 120 S. Ct. 2159,
2170 (2000) ("In analyzing a statute, we begin by examining
the text."). As noted above, 30 U.S.C. s 1724(h)(1) obliges
DOI's Secretary to "issue a final decision in any administra-
tive proceeding, including any administrative proceedings
pending on August 13, 1996, within 33 months from the date


such proceeding was commenced or 33 months from August
13, 1996, whichever is later." If she fails to do so, FOGRSFA
establishes that she "shall be deemed to have issued a final
decision in favor of the Secretary ... and the appellant shall
have a right to judicial review of such deemed final action in
accordance with Title 5." Id. s 1724(h)(2). The statute
further defines "administrative proceeding" as "any Depart-
ment of the Interior agency process in which a demand,
decision or order issued by the Secretary ... is subject to
appeal or has been appealed." Id. s 1702(18).

We conclude that Murphy's request that DOI refund its
royalty overpayments triggered an "administrative proceed-
ing" within the meaning of s 1702(18). FOGRSFA makes
clear that a private party's refund request is a type of
"demand." A "demand" is "a separate written request by a
lessee ... which asserts an obligation due the lessee ... that
provides a reasonable basis to conclude that the obligation in
the amount of the demand is due and owing." Id.
s 1702(23)(B). Because Murphy's refund request "assert[ed]
an obligation" on the part of DOI to compensate it for past
royalty overpayments, it was a "demand" for the purposes of
FOGRSFA's 33-month deadline. And, because Murphy's
"demand" set in motion an "agency process" that could
culminate in a DOI order that would be "subject to appeal," it
triggered an "administrative proceeding."

Moreover, FOGRSFA contemplates that both DOI and
private parties are capable of making "demands." See id.
s 1702(23)(A) (defining DOI-issued "demands"); id.
s 1702(23)(B) (defining private-party-issued "demands"). To
be sure, the statute defines "administrative proceeding" to
include "a demand, decision or order issued by the Secretary."
Id. s 1702(18) (emphasis added). The placement of "issued
by the Secretary" arguably implies that the italicized phrase
modifies "demand," "decision," and "order." On this inter-
pretation, a private party's "demand" does not, simply by
virtue of being a "demand," set in motion an "administrative
proceeding." Rather, an "administrative proceeding" can be
triggered only by a particular type of "demand"--viz., one
that has been "issued by the Secretary."


This strikes us as an implausible reading. If s 1702(18)'s
reference to "demand" is read to denote only that class of
"demands" that have been issued by DOI's Secretary, then
the term is entirely redundant. This is so because all DOI-
issued "demands" are also "orders." Id. s 1702(23)(A) (defin-
ing "demand" to include only a request by a lessee or "an
order to pay issued by the Secretary ... to a lessee"). The
fact that "demand" and "order" are separately enumerated
suggests that Congress viewed them as separate categories.
See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (in-
structing courts to "avoid a reading [of statutory language]
which renders some words altogether redundant"); Parker v.
Califano, 561 F.2d 320, 325 (D.C. Cir. 1977) (invoking "the
familiar principle that statutory language should be construed
so as to avoid redundancy"). We will not assume that
Congress intended the definition of "demand" to be perfectly
coextensive with "order." Rather, we conclude that "de-
mand" includes both orders to pay issued by DOI, and refund
requests submitted by private parties. Either is sufficient to
set in motion an "administrative proceeding" within the mean-
ing of s 1702(18)--and, hence, to trigger FOGRSFA's 33-
month deadline.

DOI's interpretation of "administrative proceeding" is an
unconvincing one for the additional reason that it reads
"subject to appeal" out of the statute. FOGRSFA expressly
defines as an "administrative proceeding" a "demand, deci-
sion, or order" that either "has been appealed" or "is subject
to appeal." 30 U.S.C. s 1702(18) (emphasis added). But as
DOI sees it, "administrative proceeding" refers only to an
order that has been appealed, not to an order that could be
appealed. 64 Fed. Reg. 26,240, 26,240 (1999) (stating that
"DOI has 33 months from the date a proceeding is com-
menced to complete all levels of administrative review" (em-
phasis added)). Of course, when "construing a statute we are
obliged to give effect, if possible, to every word Congress
used." Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).
DOI's reading, under which "subject to appeal" lacks any
force, contradicts the "endlessly reiterated principle of statu-
tory construction ... that all words in a statute are to be


assigned meaning, and that nothing therein is to be construed
as surplusage." Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C.
Cir. 1995); see also Halverson v. Slater, 129 F.3d 180, 185
(D.C. Cir. 1997) (invoking "the familiar doctrine that the
Congress cannot be presumed to do a futile thing").

Nor is it significant that s 1724(h) is entitled "appeals and
final agency action." It is true, as DOI argues, that "the title
of a statute and the heading of a section are tools available for
the resolution of a doubt about the meaning of a statute."
Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)
(internal quotation and citation omitted). But as
Almendarez-Torres makes plain, a section's title is a useful
device only where its "meaning" is in "doubt." "For interpre-
tative purposes, [it is] of use only when [it] shed[s] light on
some ambiguous word or phrase." Pennsylvania Dep't of
Corrs. v. Yeskey, 524 U.S. 206, 212 (1998) (citation omitted).
When a statute is unambiguous, its title cannot be used to
"limit the plain meaning of the text." Id. And as we have
explained, FOGRSFA's definition of "administrative proceed-
ing" is plain: The category "administrative proceeding" in-
cludes a private party's "demand," which in turn includes a
refund request.

Even if we accept DOI's invitation to consult s 1724(h)'s
title, the fact that it speaks of "appeals" does not compel the
conclusion that "final agency action" cannot obtain unless a
party has filed an administrative appeal. For in addition to
"appeals," s 1724(h)'s title also includes "final agency action."
The subsection performs two functions: It both states that
DOI's orders are subject to administrative appeal, and de-
fines when final agency action occurs. It does not imply that
an "appeal" is a sine qua non without which "final agency
action" cannot exist.

Nothing in our dissenting colleague's extended discussion
of the canon of the last antecedent disturbs our conclusion
that the statutory phrase "issued by the Secretary" does not
modify "demand." If anything, it supports that conclusion.
Under that canon, as the dissent reminds us, a subsequent
modifying phrase "refer[s] solely to the last antecedent, which


consists of the last word, phrase, or clause...." Dissent at 2
(quoting 2A Norman Singer, Statutes and Statutory Con-
struction s 47:33 (6th ed. 2000)). But that same source
confirms that a subsequent phrase may modify an antecedent
"phrase," "clause," or "word." Therefore, there is no reason
to conclude that "issued by the Secretary" modifies the entire
preceding phrase ("demand, decision, or order"), as opposed
to the preceding word ("order"). Indeed, the rule as easily
supports our conclusion that "issued by the Secretary" does
not modify the comparatively remote word "demand" as the
dissent's conclusion that "issued by the Secretary" modifies
the phrase "demand, decision, or order." The rule of the last
antecedent may be sound "grammar," Dissent at 1, 3, but it
does not dispose of this case.

We conclude that Murphy's February 3, 1989 refund re-
quest set in motion an "administrative proceeding" within the
meaning of FOGRSFA. Because Murphy's request was
pending far longer than 33 months when the statute became
effective on August 16, 1996, DOI's failure to resolve it is
deemed a "final decision" that triggered a right to immediate
judicial review. The district court therefore erred when it
concluded that it lacked jurisdiction to hear Murphy's lawsuit.

D. Miscellany

Because we hold that the district court had jurisdiction
under FOGRSFA, we need not reach Murphy's alternative
argument that the delay between the filing of the refund
request and the November 1998 order--which the district
court described as "indeed worrisome" but not "final agency
action"--triggered a right to judicial review under Telecom-
munications Research & Action Center v. FCC, 750 F.2d 70
(D.C. Cir. 1984). Because we conclude that the entirety of
Murphy's refund request was within the district court's juris-
diction, we need not address Murphy's alternative claim that
the court had jurisdiction over one specific portion: its chal-
lenge to DOI's December 1993 order.

III. CONCLUSION

Chevron deference is inappropriate in this case because
FOGRSFA's conferral of jurisdiction is a grant of power to


the federal courts, not to an administrative agency. Applying
de novo review, we conclude that a refund request is an
"administrative proceeding" within the meaning of
FOGRSFA. In other words, the statute's 33-month deadline
begins to run when a party submits a refund request. The
district court therefore had jurisdiction to hear Murphy's
challenge to DOI's November 1998 order, and we reverse its
dismissal of Murphy's lawsuit.


Rogers, Circuit Judge, dissenting: In dismissing the com-
plaint for lack of jurisdiction, the district court observed that
the 10-year delay by the Department of the Interior ("DOI")
in addressing the refund request of appellant Murphy Explo-
ration and Production Co. ("Murphy") was "worrisome."
However worrisome that delay may be, the only question for
this court is whether Congress provided in the Federal Oil
and Gas Royalty Simplification and Fairness Act the relief
that Murphy claims entitles it to review in the federal district
court. Because the statutory text, structure, and legislative
history demonstrate that Congress intended for the statute to
shorten only delays in the agency administrative process
following initial action by DOI, and because the court's con-
trary interpretation robs the statute of its logical and natural
meaning, I dissent.

At the heart of my disagreement with the court is the term
"administrative proceeding," which is defined in the statute as
"any Department of the Interior agency process in which a
demand, decision, or order issued by the Secretary ... is
subject to appeal or has been appealed." 30 U.S.C.
s 1702(18) (emphasis added). The court correctly reasons
that "a private party's refund request is a type of 'demand.' "
Opinion at 10. However, the court then curiously states that
it is merely arguable that the phrase "issued by the Secre-
tary" that it modifies "demand," "decision," and "order." See
opinion at 10.

This point does not seem arguable because basic "rules of
grammar apply in statutory construction." Anhydrides &
Chemicals, Inc. v. United States, 130 F.3d 1481, 1483 (Fed.
Cir. 1997). Specifically, the rule of the last antecedent ap-
plies here, and the court has observed that it is "one of the
simplest canons of statutory construction." United States v.
Pritchett, 470 F.2d 455, 459 n.9 (D.C. Cir. 1972). As defined
by the court, the rule states: "Ordinarily, qualifying phrases
are to be applied to the words or phrase immediately preced-
ing and are not to be construed as extending to others more
remote. This ... is not an inflexible rule, and is not applied


where the context indicates otherwise." Id. at 459 (footnote
omitted). A treatise definition of the rule is similar: "Refer-
ential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent [, which
consists of] the last word, phrase, or clause that can be made
an antecedent without impairing the meaning of the sen-
tence." Norman Singer, 2A Statutes and Statutory Construc-
tion s 47:33 (6th ed. 2000) (footnote and internal quotation
marks omitted).

The rule of the last antecedent compels the conclusion that
"issued by the Secretary" modifies "demand," "decision," and
"order." This is the most natural reading of the statute
because these three nouns are similar, are placed next to each
other, and are all capable of being modified by "issued by the
Secretary." Ordinarily, adjectival modifiers are placed clos-
est to the nouns they modify, and to avoid ambiguity or
confusion, nouns that are not modified are set apart from
nouns that are modified. Congress would have drafted the
statute differently if it had intended to convey the meaning
that the court finds. Cf. Gustafson v. Alloyd Co. Inc., 513
U.S. 561, 575 (1995). If Congress had not intended for
"issued by the Secretary" to modify all three nouns, "Con-
gress with ease could have drafted [s 1702(18)] to read"1:
"any agency process in which a decision or order issued by
the Secretary, or a demand, is subject to appeal." Thus, the
most plausible conclusion is that Congress meant for "issued
by the Secretary" to modify "demand."

The court suggests that because an antecedent is some-
times a single "word" instead of a "phrase," the rule supports
the conclusion that "issued by the Secretary" only modifies
the word "order." See opinion at 13.2 This application of the
rule guts it of all practical meaning. How are we to deter-
mine if the relevant antecedent is just a single word, or if it is
a larger phrase? The rule itself provides guidance, as it

__________
1 Id.

2 In quoting the rule of the last antecedent, the court omits in
its ellipsis key language, namely, "the last word, phrase, or clause
that can be made an antecedent without impairing the meaning of
the sentence." See opinion at 13 (omitting italicized language).

encourages us to extend the reach of the modifying phrase as
far as is possible "without impairing the meaning of the
sentence." The Supreme Court has also provided useful
advice: "When several words are followed by a clause which
is applicable as much to the first and other words as to the
last, the natural construction of the language demands that
the clause be read as applicable to all." Porto Rico Ry.,
Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920). Fur-
thermore, the court's application of the rule is in conflict with
cases like Pritchett, which make clear that the rule does not
endorse parsing antecedent clauses to limit the meaning of a
modifying phrase to a single word. In Pritchett, this court
considered a statute that referred to "members of the Army,
Navy, or Marine Corps of the United States or of the
National Guard or Organized Reserves when on duty."
Pritchett, 470 F.2d at 456. Not surprisingly, the court con-
strued the modifying phrase "when on duty" to apply to all of
the service members listed, not just members of the Re-
serves. See id. at 459-61. Thus, the court has misapplied
the rule.

Not only has the court failed to point to any reason why the
ordinary rule of the last antecedent does not apply, the court
fails to identify any contextual clues in the statutory language
indicating that "demand" should be considered separately
from "decision" and "order." Instead, the court relies on
another canon of statutory interpretation, in effect asserting
that the natural reading of the statute is implausible because
it makes the term "demand" redundant. The court's ap-
proach is flawed for two reasons. First, although statutory
interpretation should proceed in a manner that avoids redun-
dancy, see Gustafson, 513 U.S. at 574, this principle is not a
license to ignore fundamental principles of grammar. The
court points to no authority suggesting that an antecedent
clause can be parsed in such an unnatural manner, or that
grammar rules can be suspended to avoid redundancy. Sec-
ond, the court's reading does not really avoid redundancy in
the statutory language; it just creates a different kind of
redundancy. If the phrase "issued by the Secretary" modi-
fies only "order" (or if it modifies both "decision" and "order,"
an even more improbable reading), then it is surplusage


because, for the purposes of this statute, only the Secretary
(or a delegated State) can issue decisions and orders. See 30
U.S.C. s 1702. The phrase "issued by the Secretary" is
stripped of much of its meaning unless it is construed to
modify "demand."

The type of redundancy that cases like Gustafson warn
against is not at issue here. See opinion at 11. In Gustafson,
a broad definition of the word "communication" threatened
completely to overshadow four other words in a definitional
list ("notice, circular, advertisement, [and] letter"), making
them "altogether redundant." Gustafson, 513 U.S. at 573-74.
Such a broad definition would have made the relevant stat-
ute's reach more expansive than Congress intended, and
inconsistent with "the background of what Congress was
attempting to accomplish in enacting [it]." Id. at 575. In
contrast, if "demand" is modified by "issued by the Secre-
tary," the resulting overlap between "demand" and "order" is
far less problematic. Were the court's excessively strict view
of what redundancy means to prevail generally, then other
definitions in s 1702 would also be redundant. For example,
"Indian tribe" is defined to "mean any Indian tribe, band,
nation, pueblo, community, rancheria, colony, or other group
of Indians." 30 U.S.C. s 1702(4). No less than each of these
words, the terms "order" and "demand" overlap, but they also
convey distinct meanings. Congress simply chose to define
the statute's terms using words that do not each possess
mutually exclusive and wholly independent meanings. The
fact that all demands issued by the Secretary are also orders
(although all orders are not necessarily demands) does not
mean that basic grammatical rules should be violated to wring
extra meaning out of the antecedent clause.

The court's reliance on Gustafson is misplaced for another
reason as well. In Gustafson, the Supreme Court cautioned
against "reliance on one word ... in isolation," and stated
that a disputed phrase "must be read in its entirety." Gus-
tafson, 513 U.S. at 574. The Supreme Court refused to pluck
one word out of a list, preferring to read the word in context
so that its meaning would not be unreasonably expanded.
See id. Here, the court divorces "demand" from its natural
and appropriate context when it refuses to apply the phrase


that modifies it. Other aspects of the statutory language also
help to show that the 33-month deadline cannot be triggered
when a private party files a refund request. Section 1724(h)
repeatedly uses the terms "appeal" and "appellant." For
example, it provides that "[d]emands or orders issued by the
Secretary are subject to administrative appeal," that a private
party's "immediate appeal of an order" should not be hin-
dered, and that "[t]he 33-month period may be extended by
any period of time agreed upon in writing by the Secretary
and the appellant." 30 U.S.C. s 1724(h). These references
to "appeal" and "appellant" establish the context of s 1724(h)
and confirm that it was not meant to limit the time that the
Secretary has to respond initially to refund requests. The
court ignores the statute's repeated use of the terms "appeal"
and "appellant."

The structure of the statute also points to the implausibility
of the court's construction that "issued by the Secretary"
should be read not to modify "demand." Private parties'
demands and refund requests are not subject to administra-
tive appeal in the absence of action by the Secretary. Logi-
cally, only demands issued by the Secretary can be appealed;
a private party cannot appeal its own refund request. The
statute provides that "[d]emands or orders issued by the
Secretary or a delegated State are subject to administrative
appeal in accordance with the regulations of the Secretary."
Id. s 1724(h). In this part of the statute, as in s 1702(18),
the phrase "issued by the Secretary" is properly construed to
modify both "demands" and "orders."

It is obvious that a private party's demand can lead to a
DOI order, and that DOI order, in turn, is subject to appeal.
See opinion at 10. However, the court engages in interpre-
tive sleight of hand when it states that "because Murphy's
'demand' set in motion an 'agency process' that could culmi-
nate in a DOI order that would be 'subject to appeal,' it
triggered an 'administrative proceeding.' " Opinion at 10. If,
as the court concludes, the term "demand" in the definition of
"administrative proceeding" extends to refund requests, then
under its interpretation the relevant reading of "administra-
tive proceeding" would be "the agency process in which a


refund request is subject to appeal." But of course a refund
request itself cannot be subject to appeal. Similarly, for
example, even though a tort claim might lead to a judicial
decision that is subject to appeal, it would be odd to charac-
terize a tort claim itself, in the absence of any adjudication, as
"subject to appeal."

Perhaps the court interprets the term "agency process," as
used in s 1702(18), to be so expansive that it is appropriate to
read into the statute the unmentioned, but obviously neces-
sary, step of DOI's order in response to a refund request.
See opinion at 10. Although as a general principle every
word in a statute should be construed to have meaning, see
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), in this
context it is implausible to suggest that Congress' use of the
term "agency process" means that a refund request can itself
be considered "subject to appeal" for purposes of triggering
the 33-month time limit. Put otherwise, the agency must act
for the phrase "subject to appeal" to have meaning. The
court's reasoning, however, bootstraps a significant agency
action--an order issued in response to a refund request--into
the meaning of the statute.

In contrast with the court's strained construction, DOI has
proposed a more reasonable way to interpret Congress' refer-
ence to "agency process" in conjunction with the phrases "is
subject to appeal" and "has been appealed." The agency
"recognizes that the 33-month deadline was intended to apply
to (1) appeals that were already pending when [the statute]
was enacted, and (2) appeals of future agency demands,
decisions, and orders." Br. for Appellee at 38. The " 'agency
process in which a demand, decision, or order issued by the
Secretary ... has been appealed,' refers to the agency pro-
cess for resolving those appeals already pending when [the
statute] took effect" on August 13, 1996. Id. Such appeals
must be resolved by May 13, 1999, 33 months after the date
the statute took effect. The statute's reference to an "agency
process in which a demand, decision, or order issued by the
Secretary ... is subject to appeal," simply pertains to the
agency process for resolving appeals of demands, decisions,


and orders issued by the Secretary after the statute was
enacted. See id.

The legislative history of the statute also supports the
conclusion that a private party's refund request cannot trig-
ger the 33-month deadline. For example, the House Report
generally describes one of the reforms of the new law as
"placing a time limit on administrative appeals." H.R. Rep.
No. 104-667, at 15 (1996), reprinted in 1996 U.S.C.C.A.N.
1442, 1444. More specifically, the House Report describes
the section that was codified as s 1724(h) as "requir[ing] the
Secretary of the Interior to take a final departmental action
on appealed claims within 33 months." Id. at 18, reprinted
in 1996 U.S.C.C.A.N. 1442, 1448 (emphasis added). This is
consistent with the overall goal of s 1724(h) reflecting Con-
gressional intent to make the agency appeals process more
efficient, thus accelerating "the collection of onshore and
offshore oil and gas royalty payments from Federal lands."
Id. at 14, reprinted in 1996 U.S.C.C.A.N. 1442, 1442.

The legislative history underscores the point that Congress
knew exactly how to write a statute to state that filing a
refund request could trigger an "administrative proceeding."
The first Senate version of the bill provided that " 'adminis-
trative proceeding' means any agency process for rulemaking,
adjudication or licensing," and that an administrative pro-
ceeding could be commenced by "the receipt by the Secretary
of a written request or demand by a lessee." 141 Cong. Rec.
S9517-02, S9539 (1995). This language did not survive in the
final legislation enacted by Congress. The absence of such
clear language in the final legislation enacted into law is fair
notice that the meaning of the statute has changed. Cf.
Booth v. Churner, No. 99-1964, 2001 WL 567712, *4-*5, 121
S. Ct. 1819 (U.S. May 29, 2001). The court nonetheless reads
back into the statute provisions that Congress eliminated.

Based on the plain language, structure, and legislative
history of the statute, therefore, I would hold that for the
purposes of s 1724(h), an administrative proceeding cannot
be commenced when a private party files a refund request.


Accordingly, I would affirm the dismissal of the complaint for
lack of jurisdiction.3

__________
3 Murphy's other contentions lack merit. First, Murphy sug-
gests that the ten-year delay between the filing of its refund
request and DOI's November 1998 order was unreasonable, and
that under the principles of Telecommunications Research and
Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC"), the
district court should have regarded the 1998 order as final agency
action. However, the remedy for unreasonable agency delay is for
the court to order the agency to expedite its administrative process-
es and issue a final decision within a time frame set by the court, or
to explain its refusal to act. Murphy did not request such relief,
but sought a substantive determination on the merits. Moreover,
because DOI has acted and the 33-month time period has not
expired, the delay is "worrisome," but not unreasonable under
TRAC. Second, Murphy's challenge to the December 1993 order
fails because its amended complaint does not mention that order.
See Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202-03
(D.C. Cir. 1996).