 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 20, 2012           Decided November 16, 2012

                         No. 10-5432

                CONSERVATION FORCE, ET AL.,
                       APPELLANTS

                               v.

     KENNETH LEE SALAZAR, SECRETARY OF INTERIOR,
           IN HIS OFFICIAL CAPACITY, ET AL.,
                      APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:09-cv-00496)



    John J. Jackson III argued the cause and filed the briefs for
appellants.

     Tamara N. Rountree, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief was
Andrew C. Mergen, Attorney. James C. Kilbourne and Robert
J. Lundman, Attorneys, entered appearances.

   Before: ROGERS and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

    Opinion for the Court by Circuit Judge ROGERS.
                                  2

     ROGERS, Circuit Judge: This appeal is from the denial of a
motion for attorneys fees and costs under the citizen-suit
provision of the Endangered Species Act (“ESA”), 16 U.S.C.
§ 1540(g)(4). Conservation Force and others (“appellants”)
sued the Secretary of Interior and the Fish and Wildlife Service
(together “FWS”), pursuant to 16 U.S.C. § 1540(g). They
alleged violations of the ESA by refusing to process applications
for permits to import as hunting trophies Canadian wood bison,
a listed species, for nearly nine years. The FWS denied the
permits more than six months after appellants filed their
complaint. The district court dismissed the permit processing
claims as moot. See Conservation Force v. Salazar, 715 F.
Supp. 2d 99, 100, 105–08 (D.D.C. 2010) (“Conservation Force
I”). Appellants then sought attorneys fees and costs under a
catalyst theory pursuant to the ESA’s provision authorizing the
district court to award fees “whenever . . . appropriate.” 16
U.S.C. § 1540(g)(4).1 The district court denied the motion,
concluding that Bennett v. Spear, 520 U.S. 154 (1997),
foreclosed review of appellants’ claims under 16 U.S.C.
§ 1540(g)(1)(C) and thus rendered them ineligible for fees.
Conservation Force v. Salazar, 753 F. Supp. 2d 29, 31, 34
(D.D.C. 2010) (“Conservation Force II”).2


        1
            This court has held that the catalyst theory applies to a
similarly worded provision of the Clean Air Act authorizing courts to
award attorneys fees “whenever . . . appropriate.” Sierra Club v. EPA,
322 F.3d 718, 726 (D.C. Cir. 2003) (construing 42 U.S.C. § 7607(f)).
By contrast, the district court noted, although the Administrative
Procedure Act provides for the recovery of attorneys fees under the
Equal Access to Justice Act, 28 U.S.C. § 2412, recovery is limited to
a “prevailing party.” Conservation Force v. Salazar, 753 F. Supp. 2d
29, 35 (citing Buckhannon Bd. & Care Home v. West Virginia Dep’t
of Health and Human Res., 532 U.S. 598, 610 (2001)).
        2
           Appellant separately challenged the denial of the permit
applications as arbitrary and capricious, 5 U.S.C. § 706(2)(A) (2006),
                                   3

     On appeal, appellants contend that their claims were
brought, and are reviewable, under 16 U.S.C. § 1540(g)(1)(A)
for alleged “violations” of the ESA or its implementing
regulations, and that the district court thus erred in ruling they
were ineligible to recover fees. For the following reasons, we
affirm.

                                   I.

     The ESA generally prohibits the importation of endangered
species, including as hunting trophies. See 16 U.S.C.
§ 1538(a)(1)(A); 50 C.F.R. §17.21(b). The Secretary of Interior
may, however, grant permits to applicants to import endangered
species under limited circumstances, such as “for scientific
purposes or to enhance the propagation or survival of the
affected species.” 16 U.S.C. § 1539(a)(1)(A). Individuals
seeking to import hunting trophies of endangered species must
apply to the FWS for a permit. See 50 C.F.R. § 17.22. Upon
receiving a completed import permit application, the FWS must
publish the application in the Federal Register and allow thirty
days for public comment. Then, after considering a number of
factors, the FWS “will decide whether or not a permit should be
issued,” id. § 17.22(a)(2). The regulations provide that “[t]he
[FWS] will process all applications as quickly as possible” but
“cannot guarantee final action” within a requested time period.
Id. § 13.11(c).

     The ESA authorizes citizen suits brought




and the district court granted summary judgment in appellants’ favor,
finding the FWS “failed to articulate a satisfactory explanation for its
decision.” Conservation Force v. Salazar, 851 F. Supp. 2d 39, 51
(D.D.C. 2012) (“Conservation Force III”)
                                4

            (A) to enjoin any person, including the United
            States and any other governmental instrumentality
            or agency . . . who is alleged to be in violation of
            any provision of [the ESA] or regulation issued
            under the authority thereof; or
            ...

            (C) against the Secretary where there is alleged a
            failure of the Secretary to perform any act or duty
            under section 1533 of this title which is not
            discretionary with the Secretary.

16 U.S.C. § 1540(g)(1)(A), (C) (emphasis added).

     The Supreme Court clarified the respective scopes of
subsections (A) and (C) of section 1540(g)(1) in Bennett v.
Spear, 520 U.S. at 171–74. Subsection (A) “is a means by
which private parties may enforce the substantive provisions of
the ESA against regulated parties — both private entities and
Government agencies — but is not an alternative avenue for
judicial review of the Secretary’s implementation of the statute.”
Id. at 173. Subsection (C), on the other hand, “expressly
authorizes suit against the Secretary, but only to compel him to
perform a nondiscretionary duty under § 1533.” Id. The Court
noted that subsection (A)’s “reference to any ‘violation’ of the
ESA cannot be interpreted to include the Secretary’s
maladministration of the [Act],” and that such maladministration
“claims are not subject to judicial review” under subsection (A).
Id. at 174. It interpreted subsection (A) to be so limited because
to have done otherwise would have rendered subsection (C)
“superfluous.” Id. at 173. Without this limitation, suits
authorized under subsection (C) would become nothing more
than a subset of suits that litigants could bring under subsection
(A). The Court also interpreted subsection (A) to be so limited
in view of the Administrative Procedure Act (“APA”); otherwise
                                 5

subsection (A) “would [have] effect[ed] a wholesale abrogation
of the APA’s ‘final agency action’ requirement.” Id. at 174.
Without the limitation, “[a]ny procedural default, even one that
had not yet resulted in a final disposition of the matter at issue,
would form the basis for a lawsuit.” Id. The Court was “loathe
to produce such an extraordinary regime without the clearest of
statutory direction,” which it concluded was not present in the
ESA. Id.

     The district court ruled that appellants’ permit processing
claims were not properly brought under the ESA’s citizen-suit
provision. “[T]o sue under the ESA’s citizen-suit provision,
plaintiffs must identify a non-discretionary, statutory duty under
[16 U.S.C. §] 1533 to process their applications by a specific
date.” Conservation Force II, 753 F. Supp. 2d at 35. Because
appellants could identify no such duty, their claims were not
subject to judicial review under § 1540(g)(1)(C). Consequently,
appellants were “not eligible for attorneys fees under the ESA
attorneys’ fees provision on those claims.” Id. Appellants
appeal.

                                II.

     Appellants contend that the district court erred by failing to
address their arguments that their claims arose under 16 U.S.C.
§ 1540(g)(1)(A), and that, despite this error, they are entitled to
attorneys fees and costs under § 1540(g)(4).3 They point out
that under § 1540(g)(1)(A), a plaintiff can sue any person or
governmental agency upon identifying a violation of either a


        3
          The background to this appeal is set forth in Conservation
Force I, 715 F. Supp. 2d 99, and Conservation Force II, 753 F. Supp.
2d 29.
                                 6

non-discretionary duty under § 1533 or of other duties under any
provision or regulation of the ESA. Their lawsuit, they
maintain, did not allege that the manner in which the FWS
administered the ESA was unlawful but rather that the FWS did
not perform its duties under the ESA and its regulations at all.

     Although this court generally reviews the district court’s
denial of applications for attorneys fees for abuse of discretion,
see, e.g., Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521, 524 (D.C. Cir. 2011), a “district court abuses its
discretion if it did not apply the correct legal standard . . . or if
it misapprehended the underlying substantive law.” Kickapoo
Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995). In such
instances the court must “examine de novo whether the district
court applied the correct legal standard.” Brayton, 641 F.3d at
524 (citing FTC v. H. J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir.
2011)). Thus, although as appellants correctly maintain, the
precise statutory basis for the district court’s decision is in part
ambiguous, see Conservation Force II, 753 F. Supp. 2d at 34,
this court’s independent review is sufficient to affirm the district
court’s denial of fees.

     Appellants’ contention that they are eligible for attorneys
fees because their permit processing claims arise under
§ 1540(g)(1)(A) fails. Appellants’ position is that the FWS’
alleged failures to abide by various statutory and regulatory
requirements constitute “violations” of the ESA within the
meaning of subsection (A). In the district court they argued that
the FWS violated 16 U.S.C. § 1536(a)(2) (requiring agencies to
consult with the Secretary to ensure no action they are taking
will adversely affect an endangered or threatened species or its
habitat) and the ESA implementing regulations at 50 C.F.R. §§
13.11(c), 13.21(b), 17.22(a)(2), dealing with issuing permits.
On appeal appellants also cite 16 U.S.C. § 1531(c) and
§ 1532(3), maintaining that the FWS has violated these
                                   7

provisions, which concern the federal policy of conservation and
define words such as “conserve.” In appellants’ view, these
statutory and regulatory provisions impose nondiscretionary
obligations on the FWS to award permits where appropriate, not
sit on them for years and thereby fail to protect endangered
species.

     The statutory provisions appellants cite fall into two groups
— those that trigger certain procedures, such as consultation, 16
U.S.C. § 1536(a)(2), and those that address the goals of the ESA
or definitions related to such goals, id. § 1531(c); id. § 1532(3).
The cited regulatory provisions involve the requirement that the
FWS adjudicate permits in a timely manner, 50 C.F.R.
§ 13.11(c), grant permit requests when the established criteria
are met, id. § 13.21(b), and consider certain factors when
adjudicating permits, id. § 17.22(a)(2). Even assuming that
appellants have not forfeited contentions related to the
provisions not cited in the district court,4 see Petit v. U.S. Dep’t
of Educ., 675 F.3d 769, 782 (D.C. Cir. 2012), the provisions
appellants cite on appeal do not establish a duty, which, if not
fulfilled, constitutes a “violation” under 16 U.S.C.
§ 1540(g)(1)(A) as the Court interpreted that term in Bennett v.
Spear, 520 U.S. at 173–74. The Court explained that it knew of
“no precedent for applying” the “substantial civil penalties” that
the Secretary may impose pursuant to § 1540(a) “against those
who administer (as opposed to those who are regulated by) a
substantive law. Nor do we think it likely that the statute meant
to subject the Secretary and his officers and employees to
criminal liability under § 1540(b) . . . or . . . § 1540(e)(3).” Id.
Despite the repeated usage of obligatory words such as “shall,”
in 16 U.S.C. §§ 1531(c), 1536(a)(2); 50 C.F.R. §§ 13.21(b),
17.22(a)(2), and “will,” in 50 C.F.R. §§ 13.11(c), 17.22(a)(2),


        4
         In the district court, appellants did not refer to violations of
16 U.S.C. §§ 1531(c) and 1532(3).
                                 8

the FWS’ permit processing and other duties are discretionary
with regard to how much time it takes to complete them. As
noted, 50 C.F.R. § 13.11(c) provides that “[t]he [FWS] will
process all applications as quickly as possible. However, we
cannot guarantee final action within the time limit you request.”

      The delay by the FWS in processing appellants’ import
permit applications for wood bison trophies is, therefore, an
instance of agency delay on a matter not subject to firm time
constraints. Although the delay is substantial and unexplained,
it is nonetheless not the type of “violation” that would subject
ESA administrators to criminal or monetary sanctions. See
Bennett v. Spear, 520 U.S. at 173–74. It is, however, the type of
“procedural default” that the Court held plaintiffs cannot
challenge under § 1540(g)(1)(A). Id. at 174. Situations may
exist where in applying Bennett v. Spear a court might have to
wrestle with vexing questions as to whether an agency is
administering the ESA or is being regulated by it,5 but these
types of questions do not arise here.

     Appellants’ other contentions attempting to limit Bennett v.
Spear lack merit. Their suggestion that the district court limited
its ruling to the Secretary only, much as their attempt to
distinguish Bennett v. Spear on the ground that it limits
§ 1540(g)(1)(A) with regard to the Secretary only and not with
regard to the FWS, border on the frivolous. The Secretary has
delegated authority to the FWS, such that the district court’s
ruling regarding permit processing claims is applicable to the
FWS. See Department of the Interior Departmental Manual, 632
DM 1.5 (1988). The “Spear” in the Bennett v. Spear case
caption refers to a Regional Director of the FWS; and the claim


        5
         E.g., compare Envtl. Prot. Inf. Cen. v. Simpson Timber Co.,
255 F.3d 1073, 1074–1075, 1079 (9th Cir. 2001), with Bennett v.
Spear, 520 U.S. at 174, 176.
                               9

at issue in Bennett involved a biological opinion issued by the
FWS “as delegate of the Secretary.” Bennett v. Spear, 520 U.S.
at 158.

     Accordingly, we affirm the denial of appellants’ motion for
attorneys fees and costs pursuant to 16 U.S.C. § 1540(g)(4).
