BP America Production Co. v. Burton – Oral Argument – October 04, 2006

Media for BP America Production Co. v. Burton

Audio Transcription for Opinion Announcement – December 11, 2006 in BP America Production Co. v. Burton

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John Paul Stevens:

We’ll hear argument in BP America Production Company against the Secretary.

Mr. Lamken.

Jeffrey A. Lamken:

Thank you, Justice Stevens, and may it please the Court:

Section 2415(a) established a limitations period for every action for money damages by the Government which is founded on any contract.

That provision, by its terms, applies to every contract action, every adversary adjudication seeking monetary compensation for breach, whether pursued before a court or an agency.

The contention that every action encompasses only civil actions or judicial actions is incorrect for three reasons.

First, it is inconsistent with the broad language that Congress used.

It is inconsistent with the statutory structure, in that it renders another provision, the exception for administrative offset, totally superfluous.

It also creates an irrationality in the hierarchy of the Government’s claims.

Finally, it robs Section 2415(a) of its intended effect.

Turning to the text, Congress and agencies regularly use the term “action” to refer to adversary adjudications before administrative agencies and before the judiciary.

The term–

David H. Souter:

What–

Jeffrey A. Lamken:

–denotes–

David H. Souter:

–May I ask you, on that point… I understand what you’re saying, and I’ve looked at your authority, but, right in the provision itself, there is a verbal distinction made between actions for money damages, and what, at the end of the provision, they refer to as 1-year supplementary rule.

Doesn’t the statute, in effect, say,

“We don’t mean, by “action”, what we would possibly… what possibly might be included as an administrative proceeding? “

If they had wanted an administrative proceeding to be a subset of the actions for money damages, wouldn’t it have been sensible for Congress to say in… to refer, instead of to “administrative proceedings”, to “administrative actions”?

Jeffrey A. Lamken:

–Well, in fact, the… it refers to

“administrative proceedings required by contract or law. “

And that clause applies in the particular circumstance where a law or a contract requires some sort of administrative proceeding as a condition precedent to the action for money damages.

So, if you can bring your money-damages action without any prior administrative proceeding, regardless of where you bring–

Antonin Scalia:

I think your point has to be that there are administrative proceedings that are not actions.

Jeffrey A. Lamken:

–That is absolutely correct.

Nonadversarial administrative proceedings would, themselves, not be actions.

Antonin Scalia:

Right.

Jeffrey A. Lamken:

And they also wouldn’t be money… damages actions.

So, the distinction the statute draws is not between money-damages actions in court and money… damages actions before agencies; it’s before money-damages actions, wherever brought, and the administrative proceedings that have to be brought as a condition precedent.

Antonin Scalia:

You contend that what commenced the action here was the order demanding payment.

Jeffrey A. Lamken:

That is correct.

Jeffrey A. Lamken:

That is the–

Antonin Scalia:

That’s a very weird commencement of an action, where what then follows is what is referred to as an “appeal”, within the agency.

Jeffrey A. Lamken:

–For historical reasons, the denominations are quite strange, but for Grisa, quoted… on subsections 1702 and 1724, quoted on pages 5 and 6 of our reply brief, specifically state that the order to pay commences the proceedings.

And so, since that is the–

Antonin Scalia:

Which says that?

Jeffrey A. Lamken:

–It’s on page 5-6 of our brief.

It’s Section 1702 of our–

Antonin Scalia:

What page of your brief?

Jeffrey A. Lamken:

–5 and 6 of the reply brief.

Antonin Scalia:

Of the reply.

Jeffrey A. Lamken:

Yes.

And it’s 13 U.S.C. 1724, and it talks… or it defines the “demand” as the order to pay.

And then, the definitional provisions, in turn… when they’re talking about what commences the action, it says that the order to pay “commences” the action.

And so–

Antonin Scalia:

I’m not finding it.

Where is it, again?

Jeffrey A. Lamken:

–Page 6 of the reply, Your Honor, very top.

The citation says

“13 U.S.C. 1724(b), emphasis added. “

It defines “demand” to include an order to pay issued by the Secretary.

And, in the next line down, we say,

“For Grisa thus recognizes that the so-call order to pay, far from concluding the action, in fact, commences it. “

because the statute of limitations prepared… uses the word “commenced” to describe what the action… the order to pay does.

Antonin Scalia:

Why is… why doesn’t it make much more sense… as I understand the proceeding, this order doesn’t come out of the blue.

As required, there has to be a letter to the… to the payee saying,

“We think… we think you owe so much money. “

He is allowed to respond, right?

Jeffrey A. Lamken:

That–

Antonin Scalia:

And then, after considering the response, the order issues.

Now, I would consider that a… you know, an… that sounds to me like a complaint and an opportunity to respond to it.

Antonin Scalia:

And then, finally, the first decision of the agency, which is then appealed… and CFR provides for an… what he calls an appeal.

And it seems to me the final opinion of the agency is the opinion on the appeal.

Jeffrey A. Lamken:

–In fact, that process, which isn’t even mentioned in the regulations, doesn’t have any legal operative effect.

It’s more like a demand letter.

If the lessee doesn’t respond to the letter, he doesn’t waive any of his rights.

If the Government fails to include a claim in its demand letter, in the… well, in the audit letter… it doesn’t waive any of its rights.

The–

Antonin Scalia:

Well, it doesn’t–

Jeffrey A. Lamken:

–first document–

Antonin Scalia:

–waive it, but it can’t issue the order without having issued the letter first, giving–

Jeffrey A. Lamken:

–I–

Antonin Scalia:

–giving the party an opportunity to say why this amount isn’t owed.

Jeffrey A. Lamken:

–Well, in fact, there’s nothing in the regulations… and I think the Solicitor General would concede… that actually requires this informal process.

It happens to be typically done.

And the SG uses the word “typically” in the brief.

But there’s nothing that requires it.

And if you don’t respond, there are no consequences to failure to respond.

Antonin Scalia:

Is there anything that requires the order?

Jeffrey A. Lamken:

The… anything that requires the Secretary to proceed by order?

Antonin Scalia:

Yes.

Jeffrey A. Lamken:

That is the Secretary’s traditional way of doing things–

Antonin Scalia:

Well–

Jeffrey A. Lamken:

–yes, but–

Antonin Scalia:

–So, you could say the same for the other.

Jeffrey A. Lamken:

–Oh, but it… but there is no liability if the order fails to issue.

The order, if it were the first salvo, you still would be required to respond.

And so, your failure to respond is very much a default.

The failure to respond to the letter, the audit letter, has no legal operative effect–

Antonin Scalia:

You don’t… you don’t… but you don’t respond to the order; you take an appeal from the order.

Jeffrey A. Lamken:

–That’s correct.

Jeffrey A. Lamken:

You file a–

Antonin Scalia:

It seems to me crazy to call that order a complaint.

I… even if I grant your other argument, that an administrative proceeding can be commenced by a complaint… or that the term “complaint” can apply to administrative proceedings, I don’t think that what you’ve hung your hat on here… namely, the order… seems to me to fit that description.

Jeffrey A. Lamken:

–Well, Justice Scalia, it is the first document, which is recognized in the regulations, which provides the lessor of the notice of claims against it, the first one that’s required by the regulations in order to commence the proceedings.

David H. Souter:

You mean–

Jeffrey A. Lamken:

It’s recognized–

David H. Souter:

–the regulations don’t refer to the initial letter?

Jeffrey A. Lamken:

–No.

They don’t… the regulations don’t require this informal process.

It’s typically done–

David H. Souter:

So, they literally could start, absolutely out of the blue, by issuing the order?

Jeffrey A. Lamken:

–I think that’s correct.

That is the way that it could be done.

There’s an informal process that’s typically followed; but you could ignore it, and there’s no legal operative effect.

So, that–

Antonin Scalia:

I doubt whether–

Jeffrey A. Lamken:

–informal process–

Antonin Scalia:

–that would–

Jeffrey A. Lamken:

–can’t be a complaint.

Antonin Scalia:

–I doubt whether that would conform with the Administrative Procedure Act.

I mean, either… even at the first level of agency decision–

Jeffrey A. Lamken:

Well–

Antonin Scalia:

–it seems to me you have to give the individual an opportunity to reply.

Jeffrey A. Lamken:

–Well, that is perhaps why the agency tries this… to do the informal process.

But, in fact, it does not have legal operative effect.

There… you could completely ignore that initial demand letter, and say,

“Sorry, Agency, I’m not responding. “

The agency then files its order.

And that’s the first time you must register your defenses, upon failure or forfeiture–

Antonin Scalia:

Of course you can ignore it.

Antonin Scalia:

That doesn’t prove anything.

You could ignore an agency complaint, too–

Jeffrey A. Lamken:

–Right.

Antonin Scalia:

–I mean, a formal complaint, in which case you’ll be found liable.

What does–

Jeffrey A. Lamken:

That’s the–

Antonin Scalia:

–the fact that you don’t have to respond have to do with anything?

Jeffrey A. Lamken:

–The legal consequences.

It’s exactly right, Justice Scalia.

If you don’t respond to the demand letter, there are no legal consequences.

If you don’t respond to the letter by filing what’s called an “appeal”, you lose.

And so, it’s just like a complaint; you default if you fail to raise your defenses at that point.

In addition, Section 2415–

John Paul Stevens:

And it’s also, I assume, true that the demand letter would not toll a statute.

Jeffrey A. Lamken:

–No, we don’t believe a demand letter would toll a statute, because it’s not required by–

Antonin Scalia:

Well, you–

Jeffrey A. Lamken:

–by law.

Antonin Scalia:

–you’d win in this case even if it did.

I don’t think that the difference between the initial letter giving you an opportunity to reply, and the… what you call the “complaint”, the order… that time period doesn’t put you out of… out of the permissible period.

Jeffrey A. Lamken:

Oh, I certainly hope–

Antonin Scalia:

Right.

Jeffrey A. Lamken:

–hope not.

Antonin Scalia:

Yes.

Jeffrey A. Lamken:

But, in fact, Section 2415(f), which is on page 4 and 5 of the appendix to our brief, makes it clear that whether something is denominated a complaint or not does not determine whether or not it’s covered by the limitations period.

2415(f) is an exception for counterclaims and offsets by the Government where a private party brings an action against the Government.

But counterclaims and offsets typically aren’t brought by complaint; they’re brought in the answer, they’re submitted in the answer.

Therefore, whether it’s denominated an 2415 applies.

2415 applies to any action for money damages founded on a contract, however you might denominate the initial filing which commences the proceedings.

In–

Ruth Bader Ginsburg:

Mr. Lamken, the point has been made that there are many indications that what Congress had in mind was ordinary civil action in a court.

Ruth Bader Ginsburg:

In addition to finding this provision solely in title 28, the judiciary code, and not in title 5, there’s also, if you read the following provision, 2416, time for commencing actions brought by the United States.

And then it tells us the tolling periods.

And, in doing that, it refers twice to the “defendant”, which is a term that’s used in civil proceedings, not administrative proceedings.

Jeffrey A. Lamken:

–Well, starting at 28 U.S.C., why it’s there, it, in fact, applies both to administrative agency actions and actions in courts.

And sometimes in 28 U.S.C. there are provisions that apply to both.

The Federal Tort Claims Act, for example, is in 28 U.S.C., and it has a provision for administrative adjustment of claims.

People must file their claims before an agency first, and then the agency can do administrative adjustment.

That’s entirely separate from the attorney general’s ability to compromise the claim once it’s filed in court.

Section… title 5 also contains things that apply to courts and agencies… the right to judicial review of agency actions, the waiver of immunity that’s necessary for those… in addition to standards that govern judicial review of agency actions.

Those were all in title 5, but they actually apply to courts.

These–

Antonin Scalia:

Well, 2415(a), (i), we… you, you cannot possibly say that that only applies to judicial actions, can you?

Jeffrey A. Lamken:

–Oh, no.

That’s–

Antonin Scalia:

Yes.

Jeffrey A. Lamken:

–actually completely–

Antonin Scalia:

And that’s in–

Jeffrey A. Lamken:

–superfluous.

Antonin Scalia:

–and that’s in title 28.

Jeffrey A. Lamken:

And that’s in… yes, that’s in title 28, as well.

And with respect to the term “defendants”, Justice Ginsburg, Congress has often used the term “defendants” even in the context of administrative actions.

The Stockyard and Packers Act of 1921… it’s in 7 U.S.C. 210… actually talks about a complaint against a defendant for damages, all adjudicated before the Secretary of Agriculture, and that was 85 years ago.

It seems a little late in the day now to debate whether one can be a defendant, the person who defends before an agency, as well as the defendant–

Ruth Bader Ginsburg:

It’s not the typical term used in agency proceedings to designate the responding party.

Jeffrey A. Lamken:

–Well, you can talk about the 85 years ago… to discuss the person who might be liable for damages in–

Ruth Bader Ginsburg:

And the content–

Jeffrey A. Lamken:

–an adversary–

Ruth Bader Ginsburg:

–the content of the tolling provision, as well, seems geared… seems geared to a civil lawsuit.

It talks about a person being outside the United States; therefore, they wouldn’t be amenable to service of process.

Jeffrey A. Lamken:

–That’s certainly right.

Jeffrey A. Lamken:

These are all things that would apply, we would expect, both to a civil action in court and an administrative-agency action, as well.

They may work better for one or the other in different particular circumstances, but they are all sufficiently broad that they can be used in both circumstances.

And the one the Government, in the administrative context, would be most interested in would be subsection C.

When the Government just doesn’t know the facts, or the Government reasonably couldn’t know the facts, it gets an exception, just tolling, until it reasonably could have known of the fact.

And that’s just as applicable in an action before an agency as it would be in an action before a court.

In addition, the Government’s contrary construction renders an entire provision superfluous.

And that is the one that Justice Scalia mentioned, Section 2415(i), which is an exception for administrative offsets.

That exception for administrative offsets would do no work at all if–

Ruth Bader Ginsburg:

That wasn’t part of the original statute, was it?

Jeffrey A. Lamken:

–No, that was added about 16 years later, Your Honor.

And it was added, but it clarifies the scope of the statute.

And, as this Court admitted in… pointed out in cases like Fausto and LaFranca, the later amendment to a statute can clarify its meaning; and, indeed, statutes are ordinarily read, once amended, as if they existed in their amended form from the offset.

Ruth Bader Ginsburg:

I thought that (i) was added because it’s… for a very specific reason, that there was a debate between the Department of Justice and… I forgot the other agency–

Jeffrey A. Lamken:

The Comptroller, Your Honor.

Antonin Scalia:

Yes.

Ruth Bader Ginsburg:

–yes… about whether an offset would be subject to the time limit.

Jeffrey A. Lamken:

That’s exactly right.

And Congress resolved that debate by providing an exception for administrative offsets, and no other exception for any–

Antonin Scalia:

What–

Jeffrey A. Lamken:

–sort of administrative proceeding.

And that raises the strong inference that, in fact, this applies to administrative proceedings, and it simply doesn’t apply to administrative offsets, because they’re an exception.

Antonin Scalia:

–They could have said… if the other interpretation of 2415(a), as not applying to administrative proceedings, were correct, they could have said the provisions of this section do not apply to administrative proceedings–

Jeffrey A. Lamken:

That’s–

Antonin Scalia:

–which would have… which would have handled the offset–

Jeffrey A. Lamken:

–Yes.

It would have–

Antonin Scalia:

–but would have been well beyond the offset.

And the fact–

Jeffrey A. Lamken:

–That’s exactly right.

Antonin Scalia:

–that they only focus on the offset certainly suggests that when you’re not talking about offset, it does apply to administrative proceedings.

Jeffrey A. Lamken:

I could not have said it better, and I will not attempt to.

In fact, in addition, it raises another anomaly in the statute, the Government’s contrary construction.

And that is, it creates sort of an irrationality in the hierarchy of claims for the Government.

Offensive judicial actions to extract money from private individuals must be brought within 6 years.

Administrative offsets for the Government to try and avoid paying money, those must be brought within 10 years, under the administrative offset provision that was enacted together with the exception in (i).

However, offensive administrative actions to extract money may be brought in perpetuity, forever.

It simply strains credulity to believe that Congress, at the same time it was saying the Government has only 10 years to assert administrative offsets to avoid paying money, instead intended administrative agencies to be able to extract money on that very same claim–

Antonin Scalia:

I can believe that they do–

Jeffrey A. Lamken:

–in perpetuity.

Antonin Scalia:

–I can… I can believe that they do that.

[Laughter]

But–

Jeffrey A. Lamken:

Well, Justice–

Antonin Scalia:

–By mistake.

But I would not assume a mistake unless it’s very clear.

Jeffrey A. Lamken:

–I think that’s exactly right, Justice Scalia.

And that’s, again, going back to Fausto, where there is a sensible hierarchy of claims, or a sensible hierarchy of preferences.

The Court doesn’t ordinarily presume that Congress put in a structure that doesn’t respect that ordinary hierarchy.

And the Government’s construction here is inconsistent with the ordinary hierarchy which allows the Government to avoid making payment on more favorable terms; then the Government gets to go in and forcibly extract money from private individuals.

Finally, the Government’s construction also undermines the intended effect of the statute.

The effect of statute… the purpose of statutes of limitations… and this one, in particular… is to provide repose… to allow the individual to know that he will no longer confront Government claims, to dispose of his documents, and also to encourage the Government to be diligent in pursuing its claims.

None of those purposes are achieved, all of those purposes are defeated, if… once the statute of limitations period expires–

John Paul Stevens:

Mr. Lamken–

Jeffrey A. Lamken:

–Yes.

John Paul Stevens:

–could we go back to Section (i) for a second more?

Is it also possible to say that there was this disagreement between the Department of Justice and the Comptroller General, and Congress decided that the Comptroller General was right?

And, if that’s true, should we not accept the Comptroller General’s reading of the entire statute?

Jeffrey A. Lamken:

Well, if Congress had decided the Comptroller General is right, and had done that in subsection (i), it would have written subsection (i) the way Justice Scalia proposed, which is to say this doesn’t apply to administrative claims at all.

What it did is, it said,

“Ooh, this appears to apply to administrative claims and the Comptroller thinks these administrative offsets are important, so we will give a special statute of limitations period in 31 U.S.C. for those, and exempt them from the more general statute of limitations period in section 28 U.S.C. 2415. “

Jeffrey A. Lamken:

So, I don’t believe that it should be read that way.

Is it frivolous to suggest that that’s the reading?

No, the Government–

John Paul Stevens:

Does the–

Jeffrey A. Lamken:

–got it’s–

John Paul Stevens:

–legislative history tell us how detailed the congressional examination of the particular issue was?

Jeffrey A. Lamken:

–Well, indeed, the legislative history mentions… and there is a battle of letters between–

John Paul Stevens:

That’s about all–

Jeffrey A. Lamken:

–the Office of Legal Counsel and the Comptroller on this issue.

And Congress actually stepped into the fray and created an exception.

But it created a limited exception–

John Paul Stevens:

–Okay.

Jeffrey A. Lamken:

–an exception that applies only to one context, and that’s administrative offsets.

And that certainly raises a very strong inference that, where there isn’t such an exception, the statute applies to administrative proceedings, more generally.

Samuel A. Alito, Jr.:

Isn’t the most likely answer that they just… they saw a small problem, and they rendered a decision on the small problem, and they didn’t think about it any further than that?

Jeffrey A. Lamken:

Well, I have a hard time psychoanalyzing Congress, because it’s sort of a corporate body, and I can’t tell what Member of Congress is saying what.

But when the Court of these statutes, it generally reads them… and it, in fact, avoids, whenever possible, superfluity.

And if this provision applies to administrative proceedings from the outset, subsection (i) is superfluous, it’s… does no work whatsoever.

And so, the… when Congress amended this statute, it certainly clarified that, where there is no exception, this statute applies to actions filed in administrative proceedings.

If there are no further questions, I’ll reserve the remainder of my time for rebuttal.

John Paul Stevens:

Thank you.

Mr. Joseffer.

Daryl Joseffer:

Justice Stevens, and may it please the Court:

The presumption is that the Government is not bound by a statute of limitations.

And, when read as a whole, Section 2415(a) does not overcome that presumption, but instead makes clear that it applies only to suits in court.

There are several reasons for that.

First, the ordinary meanings of all of the key statutory terms refer to suits in court.

Second, the statute expressly distinguishes between administrative proceedings and actions.

Third the statute’s located in the judicial code.

Fourth, the committee reports, for those who are inclined to consider them, strongly support the statute’s ordinary meaning.

Daryl Joseffer:

And, fifth, even if some administrative proceedings were governed by Section 2415(a), these would not, because they do not involve a complaint.

Now, on the first of those points, the term 7 years ago, in West v. Gibson, every member of this Court agreed that the term “action” often refers only to suits in court, and not to administrative proceedings.

Antonin Scalia:

It often does.

But it does not, universally.

And there are a number of instances cited by the Petitioner that… where this Court and… and statutes use the term in context where it clearly applies to administrative proceedings.

Daryl Joseffer:

Well–

Antonin Scalia:

So, the question is, How… you know, how absurd is it not to read it to apply to administrative proceedings in this case?

And I find it pretty absurd, because you assume, if you read that it way, that there is effectively no statute of limitations whatever for the Government in these cases.

Daryl Joseffer:

–Well, the structure of the law here is that in those instances where Congress does authorize administrative recovery, it ordinarily provides a context-specific administrative limitations period, such as in the Contract Disputes Act, which governs almost all of the contract claims the Government can pursue administratively.

Congress specifically enacted a 6-year limitations period for the submission of a claim to a contracting officer.

In this unique context, however, Congress had very good reasons for not applying a limitations period until it prospectively enacted a partial one in 1996.

The reason is that what Congress found here, in context of mineral leasing, based on the findings of an independent commission, was that the companies were historically on an honors system and had abused that by underpaying royalties of up to half a billion dollars annually.

So, what Congress directed the agency to do is to audit all current and past lease accounts.

One of the committee reports said to focus on old accounts, because this was a Congress that was not concerned with repose, but with getting some of those vast underpayments back from the companies.

Now, when we fast-forward to 1996–

Antonin Scalia:

Wait.

Daryl Joseffer:

–at that point–

Antonin Scalia:

Excuse me.

And this was the Congress that enacted what?

Daryl Joseffer:

–No, I… agreed.

What I’m referring to now is the Congress that enacted the mineral leasing provisions.

Antonin Scalia:

Oh.

Daryl Joseffer:

–which is not a good–

Antonin Scalia:

Which is not what we’re talking about here.

Daryl Joseffer:

–No, but… well, we are, because the structure of the law here is that Section 2415(a), as we see it, governs court suits.

And that works, because, when Congress authorizes administrative recovery, it almost always provides a specific… context-specific administrative limitations period.

Also, when Congress was telling the agency to focus on old accounts, it certainly wasn’t thinking that a statute of limitations applied to that, and the agency, in that contemporary context, did not understand that there was a limitations period, either, because the orders that issued in the aftermath of the 1982 Act went back 7, 8, 9, sometimes more, years than that.

Antonin Scalia:

As late as 1978, the Justice Department didn’t think that way, did it?

Daryl Joseffer:

No, the Justice Department–

Antonin Scalia:

The opinion of the Office of Legal Counsel, in ’78, was exactly what the Petitioner here would urge.

Daryl Joseffer:

–No, the OLC opinion was limited, by both its terms and its reasoning, to administrative offsets, not to administrative adjudications.

And if I could explain that, an administrative offset occurs in the situation… this is what OLC was looking at… where the Government, by statute, owed retirement benefits to a person, and, because it thought that person owed it money, what the Government did was to unilaterally reduce the retirement benefits.

What OLC opined is that that is a… nothing more than a prejudgment attachment.

And OLC thought that if the Government is time-barred from obtaining a judgment, it should be time-barred from obtaining a prejudgment attachment.

An administrative adjudication is significantly different, because it does provide an actual judgment.

So, there are a couple of important points from that.

First is that the dispute between OLC and the Comptroller General was limited by its terms to administrative offsets, although, Justice Stevens, the Comptroller General did opine beyond that, that the statute specifically applies only to suits in court.

But the actual dispute was as to administrative offsets.

So, when Congress addressed that specific dispute, as Justice Alito pointed out, it resolved only that specific dispute.

Antonin Scalia:

But… excuse me… how could OLC possibly think that it applied to administrative offsets if it didn’t apply to administrative proceedings?

I mean, it was a contradiction of the proposition, which you’re urging here, which is that this statute applies only to judicial proceedings.

I mean, that’s the point.

Whether they spoke just to offsets or not, the position taken by the Justice Department was that this statute relates to administrative proceedings.

Daryl Joseffer:

No, the position of OLC was limited to administrative offsets, and it did not… the important thing is, OLC opinion did not interpret the statutory term “action”, or, frankly, any other statutory term.

Instead, it had a theory, which was probably wrong, that administrative offsets are unique because they are prejudgment attachment devices.

That’s the dispute that went to Congress, and that’s the dispute that Congress actually resolved.

And, in any event, going forward–

David H. Souter:

Well, on that theory, then, there was… there was no time issue with respect to the right to offset, then, in the OLC’s position.

Daryl Joseffer:

–No, the OLC’s view is that if the Government was time-barred from obtaining a judgment under Section 2415(a), then it would be time-barred from obtaining a prejudgment attachment.

David H. Souter:

No, but I thought your… in answer to Justice Scalia, you said what was essential to the… to OLC’s position was that the offset is like a prejudgment attachment, and, in effect, it’s an attachment without process.

If that’s the case, then timing should have nothing to do with it.

Conversely, as Justice Scalia said, if timing does have something to do with it, timing presumably derives from this provision; this provision, therefore, must have been assumed to apply to administrative proceedings.

So, either there’s no time question with respect to the offsets, or, if there is a time question with respect to the offsets, it implies an OLC position that this provision applies to administrative proceedings.

Daryl Joseffer:

Well–

David H. Souter:

What’s wrong with that logic?

Daryl Joseffer:

–I think what’s wrong with the logic is what was wrong with the logic of the OLC opinion.

We don’t mean to defend the–

David H. Souter:

You put me–

Daryl Joseffer:

–reasoning of the OLC opinion–

David H. Souter:

–in good company, but–

Daryl Joseffer:

–but what OLC really did say… and Comptroller General and Congress promptly disagreed… was that… it didn’t see a problem… OLC didn’t see a problem with procedurally imposing an administrative offset.

What it saw a problem with was, it thought if an… a judgment would be time-barred, then a prejudgment attachment should be time-barred, as well.

I mean, that was the reasoning of the–

David H. Souter:

–No, but if it was–

Daryl Joseffer:

–OLC opinion, which–

David H. Souter:

–a prejudgment–

Daryl Joseffer:

–I agree was–

David H. Souter:

–It was a prejudgment attachment in aid of what could be accomplished administratively by, ultimately, an administrative judgment.

Daryl Joseffer:

–No, the… I guess it was another point.

The OLC opinion was… arose in the context where a judgment could be obtained at all only in court.

Antonin Scalia:

Do we have–

Daryl Joseffer:

In the context of–

Antonin Scalia:

–that opinion, by the way?

Both sides cited it.

The… is it… it was unpublished.

Daryl Joseffer:

–It was unpublished, and–

Antonin Scalia:

Does anybody give it to us?

Daryl Joseffer:

–Petitioners offered to lodge it with the Court–

Antonin Scalia:

Yes, I know they did offer, but nobody did it.

Daryl Joseffer:

–I’ll… we’ll do it this afternoon.

Antonin Scalia:

Good.

I would like that.

Daryl Joseffer:

The point’s just… the OLC reasoning was admittedly somewhat odd, but that was the context in which Congress was responding to.

And, going forward, it is not surplusage, because the issue still arises.

If the Government could pursue its suit only in court, it would be time-barred from pursuing a suit in court.

The question would then still arise, under the OLC opinion, unless it had been overruled, whether the Government could, nonetheless, obtain a prejudgment attachment, even though it cannot obtain judgment.

That’s all that Congress was looking at there.

And, as this Court’s recognized in cases like O’Gilvie and Vonn, when Congress amends a statue to resolve a specific dispute, oftentimes its amendments should be read as doing no more than that.

We… I agree, though, that terms… to get back to the beginning of this discussion… terms do not always have their ordinary meanings, but they presumptively do, especially when a statute must be strictly construed.

And here, the context confirms that “action” does have its ordinary meaning, for several reasons.

Daryl Joseffer:

First, the ordinary meanings of the other key statutory terms, such as “right of action”, “complaint”, and “defendant”, as Justice Ginsberg pointed out, all ordinarily refer to aspects of suits in court.

A “right of action” is the right to bring a suit in court; a “defendant” is the person defending in court ordinarily; and a “complaint” is the document that initiates proceedings by stating a claim that’s seeking relief in a civil action, which is a suit in court.

Especially when those terms are used together, this Court recognized, in Unexcelled Chemical, that a reference to commencing a action by filing a complaint ordinarily refers to filing a suit in court, not a pleading before an administrative agency.

The statute then goes on to expressly juxtapose an action against an administrative proceeding by saying that the time to file an action does not run until after the administrative proceedings have concluded, which certainly gives weight to the point that the action is… an administrative proceeding is not an action.

David H. Souter:

Would the… at the time that 4515… is that the–

Daryl Joseffer:

It’s 2415.

David H. Souter:

–20– I’m sorry.

At the time that was enacted, were there any limitations in other statutes on the commencement of administrative proceedings?

Daryl Joseffer:

The ones that we have found were… I’m not 100-percent sure, but the ones that we… that we have found and cited in our brief do appear to be enacted after that time.

I think the reason is that… I mean, historically, administrative… obviously, court suits have been around a lot longer than administrative adjudications.

And, as Congress has authorized administrative adjudications, it’s dealt with them on a case-by-case basis.

And every time that it enacted a context-specific administrative adjudications period since 1966… in theory, it could have just done an across-the-board one for all agency adjudications, but, instead, it’s chosen to deal with the context-specific; in part, because of the great variety of administrative procedure.

I mean, as this case illustrates, a statute of limitations that governs a complaint in an action is just not going to work in a lot of administrative contexts.

Here, there’s no complaint.

An “order” is a legally binding order.

It doesn’t seek relief, it imposes it.

And unless it is both appealed and stayed pending appeal–

Antonin Scalia:

How about the initial letter that, in the agency practice, precedes the order?

I gather there’s a letter to the–

Daryl Joseffer:

–Right.

There’s… there are basically three steps here.

First, there’s an audit.

Then, if the audit reveals an apparent discrepancy, the agency or a State with delegate authority would send an issue letter requesting an explanation.

Antonin Scalia:

An issue letter.

Daryl Joseffer:

Yes.

It’s called an “issue letter”.

And then would basically request an explanation of the apparent discrepancy.

And then, if the agency then decides, after consideration of the audit and the issue letter, that it’s appropriate to issue an order to pay it, will do so.

It–

Antonin Scalia:

–Sounds to me like a complaint, a response–

Daryl Joseffer:

–An issue letter?

Antonin Scalia:

–and an adjudication.

I mean, you know–

Daryl Joseffer:

I don’t know whether you mean the audit–

Antonin Scalia:

–“We think you owe this”.

Daryl Joseffer:

–or the issue letter, but either way–

Antonin Scalia:

The response comes back,

“I don’t think we owe it, and here’s why. “

And then there’s a ruling, “You do owe it”.

And that’s the order.

And then you can appeal it.

And the CFR refers to it as an appeal.

Daryl Joseffer:

–Yes.

Well, there are a few things.

First, on the… with respect to the issue letter… I mean, a complaint, functionally, is a document that initiates proceedings, stating it… by stating the claim for relief, is seeking relief in a civil action.

With respect to the second of those, an issue letter does not… is not an allegation of wrongdoing, and it does not seek relief; it seeks information so that the agency can determine whether or not an apparent discrepancy raised by an audit is, in fact, a discrepancy.

But there’s–

Antonin Scalia:

It does not–

Daryl Joseffer:

–no claim.

Antonin Scalia:

–assert that there’s a discrepancy?

Daryl Joseffer:

Well, what it… what it asserts is that,

“We’ve done an audit, and the audit has raised the following issues. “

–that’s why it’s called an “issue letter”… “Please provide an explanation”.

And it… so, at that point, the agency has not decided yet whether it is, in fact, asserting a claim.

It’s not… and it’s not requesting relief, which a complaint definitely does.

All it’s requesting is information to help the agency assess the issue.

Antonin Scalia:

Do we have an example of issue letters anywhere?

That’s not in the materials either, is it?

In the–

Daryl Joseffer:

No, in fact, it’s not even… in fact, it’s not even in the administrative record–

Antonin Scalia:

–Right.

Daryl Joseffer:

–which is one of the reasons it’s not in the issue–

John Paul Stevens:

Do we know–

Daryl Joseffer:

–record of the case–

John Paul Stevens:

–what time lapse–

Daryl Joseffer:

–which also reflects that it’s not a formal complaint, or it would be in the record.

John Paul Stevens:

–Do we know, in this case, what time lapse there was between the issue letter and the order?

Daryl Joseffer:

I don’t think it was more than a year or two.

John Paul Stevens:

But–

Daryl Joseffer:

And there was–

John Paul Stevens:

–would that… if you took the issue letter as the day, wouldn’t all of the… all of the Government’s claims be timely?

Because we’re only talking about part of the claim, anyway, as I understand it.

Is that correct?

Daryl Joseffer:

–Here, I think if you ran–

Antonin Scalia:

I don’t think so.

I tried to figure that out.

I think–

Daryl Joseffer:

–Yes, if it ran from the–

Antonin Scalia:

–I think–

Daryl Joseffer:

–if it ran from the issue letter–

Antonin Scalia:

–Okay.

Daryl Joseffer:

–I think there would still be about a year in dispute here.

John Paul Stevens:

There would be some in dispute.

Samuel A. Alito, Jr.:

Going forward, if we–

Daryl Joseffer:

But–

Samuel A. Alito, Jr.:

–if we agree with your position, the result will be that there will be a 7-year limitations period for oil and gas leases, but, for Indian claims and for minerals, there’ll be no statute of limitations?

Daryl Joseffer:

–Yes, and the reason is that that’s what Congress chose to do.

I mean, in the prospective 1996 Act, it–

Samuel A. Alito, Jr.:

Did they–

Daryl Joseffer:

–enacted the limitations–

Samuel A. Alito, Jr.:

–When they enacted the 7-year limitation period, did they explain why they would treat those two situations so differently?

Daryl Joseffer:

–No, there’s no explanation.

As a practical matter, though, the prospective 1996 legislation governs a wide variety of aspects of the… of the relationship between the Federal Government and the lessees.

And, on balance, that package was pretty favorable to the oil companies, and I think Congress probably just decided not to… to apply that to itself, but not to the Indians.

Getting back to the order, though, it’s not only that–

Antonin Scalia:

How do you defend against a claim for, you know, stuff that went on a hundred years ago?

Daryl Joseffer:

–Well, as a–

Antonin Scalia:

I… I’m really very reluctant to… unless there is no possible other reading of the statute, to think that that’s… that that’s what the law provides, that the Government can show up a hundred years later, and say,

“Oh, by the way, you owe all this money. “

Daryl Joseffer:

–Well, first off, until–

Antonin Scalia:

The company says

“Gee, I… you know, I don’t have records from a hundred years ago. “

Daryl Joseffer:

–Right.

Well, there are a few points, both legal and practical.

On the legal, until 1966 that absolutely was the law, because historically no limitations period ever applies against the Government.

And that’s the reason for the strict construction canon, that the statute applies here only if it clearly applies, and thereby bars the Government from forcing the law in the public interest.

Antonin Scalia:

Say that again.

Until 1966, there were no statute of limitations against any Government suits?

Daryl Joseffer:

Not contract.

I mean, the historic rule is that the Government is not bound by statutes of limitations, because what it’s doing is enforcing the law in the public interest.

Now, in 1966, Congress enacted Section 2415(a) so that there would prospectively be a contract limitations period.

But it’s strictly construed, because of the historical backdrop and the importance of enforcing the law in the public interest.

So that’s why we do have a strict construction canon here.

As a–

Antonin Scalia:

He didn’t apply against the Government either.

Daryl Joseffer:

–For the same reason laches is never applied against the Government.

Ruth Bader Ginsburg:

So, there’s no limit at all, and you concede that that’s the case.

So, the Government could go back on these royalties as long as it likes.

Daryl Joseffer:

Well, as an abstract theoretical matter, the Government could reach back many, many decades.

As a practical matter, though, that’s never happened that we’ve gone back, say, 50 or 100 years and there are practical reasons for that.

Daryl Joseffer:

First is that the agency does not have enough resources to audit–

John Paul Stevens:

Well, there’s a case involving the Oneida Indians, that went back quite a ways–

Daryl Joseffer:

–That’s true.

It’s… I meant in the–

John Paul Stevens:

–200 years–

Daryl Joseffer:

–leasing context here.

John Paul Stevens:

–Yes.

Daryl Joseffer:

I didn’t mean in the leasing context here.

But in the leasing context, one… there are a couple of important points.

One is that the Government does not have enough resources to audit all of the current accounts in all of the years, which is one of the reasons that we need to be able to go back farther when we catch the violation.

As a… but as a result, the notion that we’re going to pull auditing resources off of today to do a frolicking detour into 50 years ago, there’s a reason that’s never happened.

In addition, the farther we try to go back, the greater the proof problems, because oftentimes only the companies have the information that shows what royalties they would owe, and if they lawfully destroy those records after 6 years, it makes it even harder for us to try to go back, because of proof problems.

Antonin Scalia:

That’s another indication.

Why would you allow them to destroy those records after 6 years if you… if you thought… if you thought that there was no statute of limitations to claims for these things?

I mean, that’s just another inconsistency that… in the statutory scheme that’s created.

Daryl Joseffer:

Well, no, the–

Antonin Scalia:

You say,

“You can destroy your records after 6 years. “

Well, why?

It doesn’t make any sense.

Daryl Joseffer:

–Well, first, it’s optional, not mandatory.

If they want to keep them, they–

Antonin Scalia:

Yes.

Daryl Joseffer:

–certainly can.

But there’s no… and, as a practical matter… I mean, because the Government bears the initial burden of going forward, if the company destroys the sources of proof, that’s, on balance, going to be in its favor.

But, in addition, there’s not a strict congruence between the 6-year periods, because, first, the companies only have to keep records for 6 years, but, in some circumstances, the Secretary can require they be kept for longer.

In addition, sometimes the statute of limitations, because of tolling, is much longer than 6 years; and so, the lawful destruction of records would still leave absence-of-proof issues in situations where the statute might, because of tolling, be much longer.

So, there’s not a strict congruence.

There is also no indication that Congress enacted the 6-year records-retention policy because it was thinking about a 6-year limitations period.

There’s never been any linkage between the two.

Daryl Joseffer:

If I could briefly cover, then, also… I mean, in addition to all the textual points, this is also located in the judicial code.

And, although it’s true that a couple stray provisions in the judicial code apply to administrative proceedings, they say that expressly.

Every time the word “action” is used in the judicial code… and Petitioners identified no examples… every time the word “action” is used in the judicial code, it refers to a suit in court, and only a suit in court.

When a provision of the judicial code applies to something else, it will say so.

For example, 28 U.S. Code 2462, which is a statute of limitations for penalty proceedings, refers to an

“action, suit, or proceeding. “

The Federal Tort Claims Act is very clear that what it’s talking about is submitting something to an agency.

So, if Congress was going to legislate against the backdrop of a strict construction canon with terms that ordinarily refer to suits in court, and put the provision in the judicial code, I mean, that just is a totally irrational way of expressing intent, especially clear… especially a clear intent, when it’s trying to govern administrative proceedings.

The committee reports also strongly confirm that, because they not only say that the statute defines the time limitation for bringing an action in the U.S. courts, and not only use court terminology from front to back, they also say, like the statute, that they’re aware of the administrative proceedings, but what they’re saying is that the time to bring an action in the courts does not expire until after the conclusion of those proceedings.

The committee has explained that the reason for that provision was the great number and variety of administrative proceedings.

So, in other words, Congress was saying,

“There’s a great variety of administrative procedure. “

“We’re just not going to deal with that here. “

“We’re taking it off the table by saying this limitations period does not expire until a year after those administrative proceedings, whatever they might be, have expired. “

There’s also some relevance in the fact that this legislation was proposed by the Justice Department as part of an overall package of reforms that would govern the civil litigation that the Department was handling in the courts.

It was then referred to the Judiciary Committees, not to the House Government Reform Committees that might consider administrative procedure matters, and, as I mentioned before, was enacted as part of the judicial code.

From start to finish, this legislation has never had anything to do with anything other than court suits, which is why Congress has expressly provided for context-specific administrative systems… limitations periods… which make sense in the context of the relevant administrative procedures.

Antonin Scalia:

Well, except when you… when you say 2415(a) and you leave out (i), which… or I guess it’s “one”.

Is it?

Little… or–

Daryl Joseffer:

It’s (i).

It is (i).

Antonin Scalia:

–It’s (i).

I mean, that clearly does apply to administrative proceedings.

And I could understand the argument that Congress was just making things doubly clear… okay +/?

that (a) does not apply to administrative proceedings.

I could understand that argument if the way (i) was written is,

“The provisions of this section shall not apply to administrative proceedings. “

And then I would say,

“You know, oh, well, that was always the case, and this is just making it clear. “

Antonin Scalia:

It doesn’t say that.

It says that… the only administrative proceeding that they cut out of it is these offsets.

Daryl Joseffer:

I think the reason is that–

Antonin Scalia:

And, you know, the normal rule is inclusio unius, exclusio alterius.

I would… it means, to me, when I read the statute as a whole… and that’s the way I read statutes, I don’t ask whether this section was adopted this year, and the other section was adopted next year… I don’t do it bite by bite; you look at the whole text… and, when you read all this stuff together, it seems to me that the import of (i) is that administrative proceedings, despite the fact that “action” is not a very common word to use for them, are covered.

Daryl Joseffer:

–I mean, it’s… there’s no doubt the statute should be read as a whole.

But, as this Court has explained in cases like the O’Gilvie and Vonn cases cited in our brief, when a court’s trying to make sense of a statute read as a whole, oftentimes it will find that when Congress faces a specific dispute and amends a statute to resolve that specific dispute, that’s all it resolves, and there’s no reason to draw further negative inference, especially here, as the Court of Appeals pointed out, where a strict construction canon applies.

Antonin Scalia:

That’s the best thing you have going for you, really, the strict construction canon.

Daryl Joseffer:

Well, because… I mean, and it is an important point, that the statute applies only if it clearly applies by its terms.

And it seems to me, the best that Petitioners can do is to say that some of the statutory terms, in isolation, are ambiguous.

But that… all that means, as I said, is that, under the strict construction canon, we would prevail.

And even if the statute governs some administrative proceedings, but not others, it would not govern these, for the reason I gave earlier, which is that there’s no complaint here.

We talked, before, about the ways in which an order is not a complaint.

It’s another important point, though, that in order not only… it is… not only does it not begin the proceedings, it normally ends them, because appeals are only taken about a quarter of the time.

And in some limited circumstances there’s not even a right of appeal, if the Assistant Secretary issued the order.

So–

Antonin Scalia:

What if I didn’t think the order was a complaint, but I thought the initial letter was a complaint?

Would the Petitioner lose?

Because they never made that argument.

Daryl Joseffer:

–Correct.

It’s… the only argument they’ve ever made–

Antonin Scalia:

Yes.

Daryl Joseffer:

–is that an “order” is a complaint.

So, they haven’t preserved the point.

Ruth Bader Ginsburg:

Because you’re–

Daryl Joseffer:

But–

Ruth Bader Ginsburg:

–you made the point that the issue letter is just raising the issues, and it’s not charging, as a complaint would allege, “You owe us”, but this is, “Maybe you owe us”.

Daryl Joseffer:

–Correct.

There’s no… in an issue letter, there’s no claim for relief, just a claim for the request for information, and there’s no allegation of wrongdoing.

So, it’s just not a complaint in those ways.

Daryl Joseffer:

Also, it doesn’t… it’s not really fair to say that it begins proceedings, because it comes between an audit and an order to pay.

So it doesn’t… and plus, it’s, of course, not filed in a civil action.

And, in that respect, it doesn’t satisfy any of the… any of the elements of the… of the ordinary definition of “complaints”.

Samuel A. Alito, Jr.:

Are you saying that this doesn’t apply to any administrative proceeding, or just those that are structured like this one, where you don’t have anything that’s labeled a “complaint”?

Daryl Joseffer:

We… well, our primary submission is that it does not apply to any administrative proceedings, for the reason… reasons I’ve given, that the ordinary meanings of all of the key statutory terms are for suits in court.

A “complaint” itself is ordinarily defined to be–

Antonin Scalia:

Even if you have an administrative proceeding which is called a “complaint”?

You know, I mean… and some are, I think.

Daryl Joseffer:

–There are… there are some contexts in administrative procedure in which the word “complaint” is used.

Antonin Scalia:

And that would not be covered by 2415(a).

Daryl Joseffer:

Because it’s not filed in an “action”, which refers to a suit in court, following occurral of a right of action, which refers to the right to bring suit in court, in a statute which then juxtaposes the terms “action” against “administrative proceedings”–

Antonin Scalia:

And let’s assume all those terms are used in the agency procedure.

They’re talking about “action”, “right of action”.

All those terms are used in the agency’s procedural rules.

Would they then come under this thing?

Daryl Joseffer:

–No.

Antonin Scalia:

I think you have to say no–

Daryl Joseffer:

Yes.

Antonin Scalia:

–because, otherwise, it would be up to the agency, just by renaming their things, to–

come in or out, right?

Daryl Joseffer:

Well, and it’s a much more–

Antonin Scalia:

Yes.

Daryl Joseffer:

–fundamental point than that, too, is that what Congress was doing here was, when using these terms in their ordinary sense, to lay out an across… the-board rule that applies to suits in court.

And, finally, one thing I should also emphasize is that what we have in this context is a comprehensive administrative scheme.

Petitioners like to say that,

“Well, we could just as easily be in court. “

There’s a reason that no administrative royalty proceeding has ever been brought by the Government in a court.

And that’s, first, that Congress directed the agency to establish a comprehensive auditing and collection system, and then gave the agency administrative authority to enforce its administrative orders.

The only way the agency could administer thousands of leases with something like $9 billion in royalties every year is to do this in an efficient administrative manner.

Congress has not only authorized that, and ratified it, it has strengthened that scheme and told the agency, as I said, in 1982, to go back and look at old leases, precisely because Congress knew that is a standalone administrative scheme, and it’s never provided the administrative limitations period for the standalone administrative scheme.

Daryl Joseffer:

If there are no more questions–

John Paul Stevens:

Thank you, Mr. Joseffer.

Mr. Lamken, as I understand it, you have about 11 minutes left.

You don’t have to use them all.

[Laughter]

Jeffrey A. Lamken:

I will endeavor not to.

Thank you, Justice Stevens.

I wanted to start with the ordinary meaning of the term “action”.

I was somewhat bemused by the Government’s insistence that had… the term “action” in West versus Gibson was construed… it must mean an action before a court, and has that as its ordinary meaning.

The Solicitor General’s own position in West versus Gibson, on page 25 and 6 of its brief was,

“Section 1981(a) does not, however, define the term “action” as being limited to judicial proceedings. “

“The statutory language, read in context, suggests that no such limitation was intended. “

Page 6 of the Government’s reply,

“The term 1981, can reasonably be construed as encompassing both administrative and judicial proceedings. “

The term “action” is a term that’s used for adversary adjudicative proceedings, whether those are in court or before an agency.

It is not limited to administrative agency proceedings, as the Government itself recognized in West versus Gibson.

There are more general terms here.

There’s also “complaint”, there’s also “defendant”.

There’s a number of those.

But those general terms are also the terms of adversary adjudication.

And Congress uses them, as far back as 1921, for adversary adjudications before agencies.

John Paul Stevens:

Mr. Lamken, have you had any second thoughts about your position that it’s the order, rather than the issue letter, that we should look at?

Jeffrey A. Lamken:

Well, in fact… no.

But the… the answer is that we didn’t… no issue was engaged as to what was the functional equivalent of the complaint below.

That raised… was raised for the first time by the Solicitor General in its merits brief, saying,

“No, no, no, there’s actually some stuff that comes before the order. “

But if… I would encourage the Court to look at the definitions in FOGRSFA, 1724 and 1702(A), which tell you what, under… in Congress’s view, commences the proceedings here.

And, in Congress’s view, what commences the proceedings, what triggers the new statute of limitations and stops it from running, is the order to pay, which Congress defines as a “demand”.

Antonin Scalia:

Well, that’s true.

That’s true.

Antonin Scalia:

But the provision you’re arguing that you come under does talk about a complaint.

Jeffrey A. Lamken:

That’s–

Antonin Scalia:

And that’s what… you know, that’s what starts the 6 years running.

And it’s… seems to me odd to call something a “complaint” which is, in fact, an order.

They’re not complaining about anything; they’re saying, “Pay the money”.

Jeffrey A. Lamken:

–Actually, Justice Scalia–

Antonin Scalia:

You know, usually a complaint, you’re… you make your point, and say,

“What do you say? “

“What’s your answer? “

Jeffrey A. Lamken:

–Well–

Antonin Scalia:

And this is an order.

You’re… boom, “Pay”.

Jeffrey A. Lamken:

–It certainly has a hybrid quality, Justice Scalia.

And it’s not a hybrid quality that the industry particularly likes.

But it is the first time that the Government asserts its state… its claims as to what’s wrong, in a binding legally operative document, where the failure to respond results in default.

It has that function as complaint.

It is the first salvo in official, formal administrative proceedings.

Antonin Scalia:

Well, that’s only true if you consider an appeal to be the response.

And that’s rather weird, that–

Jeffrey A. Lamken:

It is–

Antonin Scalia:

–that the response to a complaint is an appeal.

Jeffrey A. Lamken:

–The language that has been used, and… as a result of very odd historical anomalies and attempts to introduce a sense of due process to these proceedings over time… is odd, and it is awkward.

But it’s clear that when Congress wrote the scope of this statute, it said it applies to

“every action for money damages by the Government which is founded in contract. “

It doesn’t say

“actions that are begun by complaint. “

Now, the complaint is what Congress assumes will stop the provision from running.

And there is always, in an adversary adjudication, some document that functions like a complaint, that provides the defendant the notice of what the claims are against it, and to which failure to respond will result in default.

We believe that the most likely thing to be the complaint here is, the thing that provided us with notice, is that…

“Boys, you’ve got to respond; otherwise, you’re in trouble. “

Jeffrey A. Lamken:

–was the order to pay.

And Congress came to that same conclusion when it enacted… when it enacted FOGRSFA and established a 7-year statute of limitations provision.

But if we lose 2 years of the claim, and only get 1 because it is the agency letter, in the Court’s view, well, that’s fine, but there’s some document here that started these agency proceedings, and it is that document which is a complaint.

Antonin Scalia:

Could you get us… we’re going to have supplemental material filed, the OLC opinion.

Could you… could you get us a… you know, a sample of an agency letter?

Or, if you can’t, maybe the Government can?

Jeffrey A. Lamken:

Yes, I… that’s true.

And in terms of the OLC letter, we offered to lodge it in our brief.

Unfortunately, by the Court’s rules, we’re not allowed to lodge it, unless the Court specifically requests it.

And so, that’s why it’s not there.

But we will get that to you, or the Government will get it to you, as soon as possible.

The actual agency letter, in this case, isn’t in the administrative record.

And it turns out that we haven’t been able to find it, and the Government hasn’t been able to find it.

And so, it’s a letter.

It’s a demand letter, but it is a letter, and that… the order to pay is actually the opening salvo in these proceedings.

And again, what opens the proceedings in… the Justice Department regulations and other regulations–

John Paul Stevens:

May I suggest–

Jeffrey A. Lamken:

–to try to define–

John Paul Stevens:

–this, Mr. Lamken, that when the… when the filing is made giving us the OLC opinion, you include a… an example of such a letter?

Jeffrey A. Lamken:

–Yes.

Yes.

Of course.

John Paul Stevens:

And so, we’ll get a notion of what it looks like.

Jeffrey A. Lamken:

Right.

It may have to be from some other proceeding; it wouldn’t necessarily be from this case.

Ruth Bader Ginsburg:

Your position is, this would apply to the universe of administrative proceedings.

Now, this particular lease arrangement is taken care of by an express statute of limitations.

So, what we’re talking about, for the future… what would change under your interpretation?

Not gas leases, because… there’s a 7-year limitation for both administrative orders to pay and–

Jeffrey A. Lamken:

Right.

Ruth Bader Ginsburg:

–court actions.

Jeffrey A. Lamken:

Right.

It would be all leases on Indian lands.

It would be all leases which involve minerals other than oil and gas, whether it be coal, gold, silver, anything like that.

It would also be all claims before September… all production before September of 1996.

That introduces something of an oddity, if one accepts the Government’s position.

It would be that, for all claims going forward from September of 1996, the Government has 7 years, but, for the prior 200 years, those claims persist in perpetuity.

When Section 2415(a) itself was enacted, Congress avoided precisely that result by deeming all prior claims to have accrued on the date the statute of limitations was enacted.

And the very fact that Congress didn’t do that here is evidence that Congress… to the extent it has anything to do with it at all… is evidence that Congress, in fact, understood that there already was a statute of limitations applicable.

And, in fact–

Antonin Scalia:

What–

Jeffrey A. Lamken:

–it also–

Antonin Scalia:

–What other areas would we be messing up by finding for you?

I mean, here, you know, if we don’t find that this administrative action is covered by this statute of limitations, there’s no statute of limitations.

But there may… there are other… may be other areas covered by this text… namely, a suit by the United States… founded upon any contract expressly or implied in law or in fact, where there is some kind of a statute of limitations.

Jeffrey A. Lamken:

–Right.

There are… there are some contexts in which there already is a separate administrative regime which would have its own statute of limitations.

The Contract Disputes Act, as the Government points out, is one of those.

Antonin Scalia:

And that would prevail over this–

Jeffrey A. Lamken:

Yes, because the–

Antonin Scalia:

–because it’s more–

Jeffrey A. Lamken:

–Contract Disputes–

Antonin Scalia:

–specific.

Jeffrey A. Lamken:

–Act has an exception at the front and says 2415> [“].

It’s its own animal to itself.

And there is a clause at the front of 2415 that says

“except as otherwise provided by Congress. “

And so, Congress often takes exceptions.

And when it modified the Mineral Leasing Act of 1996, that was an exception to the 2415 regime.

So, Congress knows how to conduct specialized situations and take things outside of 2415 when it needs to.

Jeffrey A. Lamken:

But it enacted Section 2415 as a catchall for all of those situations where Congress hadn’t managed to anticipate the circumstances.

And the Government’s premise of the whole provision is that Congress botched it.

Congress provided a catchall that catches judicial actions, but leaves the Government free, in perpetuity, to persist… to proceed on precisely the same claims for precisely the same relief, plus interest.

And, because interest is calculated at a relatively high rate, that makes those old claims much, much more valuable than the relatively more recent claims.

And it seems implausible to think that Congress enacted a catchall limitations period with a loophole so large that it deprives the statute of limitations period of effect almost entirely.

Finally, I’d like to say, one moment about the statute… the canon of strict construction.

And that is that it doesn’t always require the court to narrow otherwise broad statutory language, particularly where doing so would have the effect of rendering another provision… here, subsection (i) is superfluous… introducing anomalies into the statutory structure and depriving the statute of its intended effect, as the Bowers case we cite in our reply brief on page 16 makes clear.

And Bowers case was virtually on point.

It was the case where the… it was a statute of limitations that could have applied to administrative agency actions, or it could not have.

And the Court declined to accept a narrowing construction proffered by the Government under statute of strict construction because it would have rendered one of the provisions… one for consent proceedings… superfluous, because it would have resulted in anomaly, and because it would have undermined the premise of repose which undergirded the statute of limitations in that case.

Precisely the same things are true here.

And, for those reasons, the Court should reach precisely the same result.

If there are no further questions, thank you very much.

John Paul Stevens:

Thank you, Mr. Lamken.

The case is taken… is… as submitted.