252 F.3d 473 (D.C. Cir. 2001)
Murphy Exploration and Production Company, Appellantv.United States Department of the Interior and Gale A. Norton, Appellees
No. 00-5218
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2001Decided June 19, 2001

[Copyrighted Material Omitted]
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:


1
Murphy Exploration and Production 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 proposes 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 jurisdiction to hear Murphy's claim.

I. BACKGROUND

2
Several acts of Congress confer on DOI the authority to  issue leases to mining companies that wish to extract minerals from lands administered by the federal government.  See,  e.g., the Mineral Leasing Act, 30 U.S.C.          181 et seq., the  Mineral Leasing Act for Acquired Lands, 30 U.S.C.          351 et  seq., and the Outer Continental Shelf Lands Act, 43 U.S.C.           1331 et seq.  As a condition of their leases, lessees must  pay the government royalties based on the value of the  minerals they produce.


3
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 Diamond 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-94-0151OCS (1998);  Antelope Prod. Co., MMS-96-0068-O&G (1998).


4
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 immediate 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.          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 Secretary ... and the appellant shall have a right to judicial review  of such deemed final action in accordance with Title 5."  Id.           1724(h)(2)(B).  FOGRSFA further defines "administrative  proceeding" 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."  Id.           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.


5
In 1999, DOI promulgated regulations interpreting  FOGRSFA's 33-month deadline.  64 Fed. Reg. 26,240 (1999). As the agency sees it,          1724(h)'s reference to "any administrative 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 monetary 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.


6
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 determined 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 December 4, 1998.


7
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.  Because, 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.          1702(18), it therefore was an "administrative proceeding" 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 Telecommunications Research & Action Center v. FCC, 750 F.2d 70  (D.C. Cir. 1984).


8
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 Exploration & 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 interpretation that FOGRSFA's 33-month period applies only to administrative appeals.  Murphy Exploration, slip op. at 13.  The  court also rejected Murphy's alternative claim that the passage 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

9
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.


10
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 Murphy 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

11
The basic issue in this case is one of statutory construction. Does FOGRSFA's definition of "any administrative proceeding," the commencement of which triggers the statute's 33month 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 Congress 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 unambiguously 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.


12
We conclude, however, that Chevron deference is inappropriate in this case.  Chevron does not apply to statutes that,  like          1724(h), confer jurisdiction on the federal courts. It is  well established that "[i]nterpreting statutes granting jurisdiction 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 "established an enforcement scheme" that gives a party "direct  recourse to federal court," it is "inappropriate to consult  executive interpretations of [the jurisdiction-conferring statute] 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).


13
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 explained, "a congressional delegation of administrative authority" 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 interpretations 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 regulate nitrogen-oxide emissions.  A jurisdiction-conferring statute, 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 deference to an agency's construction of them.


14
It is true that the statute before us contemplates a regulatory 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 administrative 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)).


15
Moreover, administrative agencies have no particular expertise 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."  Pension 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 interpretations of statutes "outside the agency's particular expertise 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 regulations deserve no deference where they proceed neither from a  congressional delegation nor from agency expertise.


16
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. Metropolitan 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

17
Because we conclude that the Chevron framework is inapplicable to FOGRSFA's conferral of jurisdiction on the federal 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 consider 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.


18
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.          1724(h)(1) obliges  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."  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.          1724(h)(2).  The statute  further defines "administrative proceeding" 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."  Id.          1702(18).


19
We conclude that Murphy's request that DOI refund its  royalty overpayments triggered an "administrative proceeding" within the meaning of          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.           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."


20
Moreover, FOGRSFA contemplates that both DOI and  private parties are capable of making "demands."  See id.           1702(23)(A) (defining DOI-issued "demands");  id.           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.          1702(18) (emphasis added).  The placement of "issued  by the Secretary" arguably implies that the italicized phrase  modifies "demand," "decision," and "order."  On this interpretation, 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."


21
This strikes us as an implausible reading.  If          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 DOIissued "demands" are also "orders."  Id.          1702(23)(A) (defining "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) (instructing 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 "demand" 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 meaning of          1702(18)--and, hence, to trigger FOGRSFA's 33month deadline.


22
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, decision, or order" that either "has been appealed" or "is subject  to appeal."  30 U.S.C.          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 commenced to complete all levels of administrative review" (emphasis 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 statutory 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").


23
Nor is it significant that          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 interpretative 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 proceeding" is plain:  The category "administrative proceeding" includes a private party's "demand," which in turn includes a  refund request.


24
Even if we accept DOI's invitation to consult          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,"          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 defines when final agency action occurs.  It does not imply that  an "appeal" is a sine qua non without which "final agency  action" cannot exist.


25
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 Construction          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.


26
We conclude that Murphy's February 3, 1989 refund request 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

27
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 Telecommunications 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 jurisdiction, we need not address Murphy's alternative claim that  the court had jurisdiction over one specific portion:  its challenge to DOI's December 1993 order.

III. CONCLUSION

28
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:

29
In dismissing the complaint 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 Exploration 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 contrary interpretation robs the statute of its logical and natural  meaning, I dissent.


30
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.           1702(18) (emphasis added).  The court correctly reasons  that "a private party's refund request is a type of 'demand.' " Opinion at __.  However, the court then curiously states that  it is merely arguable that the phrase "issued by the Secretary" that it modifies "demand," "decision," and "order."  See  opinion at __.


31
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 applies 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 preceding 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:  "Referential 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 sentence."  Norman Singer, 2A Statutes and Statutory Construction          47:33 (6th ed. 2000) (footnote and internal quotation  marks omitted).


32
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 closest 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, "Congress with ease could have drafted [§ 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."


33
The court suggests that because an antecedent is sometimes 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 __.2  This application of the  rule guts it of all practical meaning.  How are we to determine if the relevant antecedent is just a single word, or if it is  a larger phrase?  The rule itself provides guidance, as it  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).  Furthermore, 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 construed the modifying phrase "when on duty" to apply to all of  the service members listed, not just members of the Reserves.  See id. at 459-61.  Thus, the court has misapplied  the rule.


34
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 approach is flawed for two reasons.  First, although statutory  interpretation should proceed in a manner that avoids redundancy, 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.  Second, 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" modifies 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.          1702.  The phrase "issued by the Secretary" is  stripped of much of its meaning unless it is construed to  modify "demand."


35
The type of redundancy that cases like Gustafson warn  against is not at issue here.  See opinion at __.  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 statute'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 Secretary," 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          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.          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.


36
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."  Gustafson, 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 hindered, 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.          1724(h).  These references  to "appeal" and "appellant" establish the context of          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."


37
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 administrative appeal in the absence of action by the Secretary.  Logically, 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.          1724(h).  In this part of the statute, as in          1702(18),  the phrase "issued by the Secretary" is properly construed to  modify both "demands" and "orders."


38
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 __.  However, the court engages in interpretive sleight of hand when it states that "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.' "  Opinion at __.  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 "administrative 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 characterize a tort claim itself, in the absence of any adjudication, as  "subject to appeal."


39
Perhaps the court interprets the term "agency process," as  used in          1702(18), to be so expansive that it is appropriate to  read into the statute the unmentioned, but obviously necessary, step of DOI's order in response to a refund request. See opinion at __.  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.


40
In contrast with the court's strained construction, DOI has  proposed a more reasonable way to interpret Congress' reference 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 process 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.


41
The legislative history of the statute also supports the  conclusion that a private party's refund request cannot trigger 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          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          1724(h) reflecting Congressional 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.


42
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 " 'administrative proceeding' means any agency process for rulemaking,  adjudication or licensing," and that an administrative proceeding 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, ___ U.S. ___, 121 S.Ct. 1819, 1824-25, ___ L.Ed.2d ___ (2001). The court nonetheless reads  back into the statute provisions that Congress eliminated.


43
Based on the plain language, structure, and legislative  history of the statute, therefore, I would hold that for the  purposes of          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



Notes:


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 __ (omitting italicized language).


3
  Murphy's other contentions lack merit.  First, Murphy suggests 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 processes 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).


