             In the United States Court of Federal Claims
                                         No. 18-972C

                                     (Filed: April 8, 2019)
 **********************************          )
 BP EXPLORATION &                            )      Suit for leasehold royalty overpayments
 PRODUCTION, INC.,                           )      and interest; jurisdiction; Federal Oil and
                                             )      Gas Royalty Management Act, 30 U.S.C.
                       Plaintiff,            )      §§ 1701-59, as amended by the Federal Oil
                                             )      and Gas Royalty Simplification and
        v.                                   )      Fairness Act; jurisdiction under the Tucker
                                             )      Act for a monetary claim; 28 U.S.C. §
 UNITED STATES,                              )      1491(a) not displaced by 30 U.S.C. §
                                             )      1724(h)(2)(B) for a monetary claim;
                       Defendant,            )      contractual remedy for refund and interest
                                             )      supplanted by the statutory remedial
 **********************************          )      scheme; takings claim for accrued interest
        Jonathan A. Hunter and Sarah Y. Dicharry, Jones Walker, LLP, New Orleans, Louisiana,
for plaintiff.

        Tanya B. Koenig, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Allison Kidd-Miller, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Joseph D.
Coleman, Attorney-Advisor, Rocky Mountain Regional Solicitor’s Office, United States
Department of the Interior, Lakewood, Colorado.

                                    OPINION AND ORDER

LETTOW, Senior Judge.

        Plaintiff BP Exploration & Production, Inc. (“BP”) has brought suit against the United
States (the “government”) acting through the Department of the Interior’s (the “Department’s”)
Office of Natural Resources Revenue (“ONRR”) to recover overpayments of royalties made to
the government between 2004 and 2007 pursuant to lease agreements on several oil and gas
leases in the Gulf of Mexico. The government refunded some, but not all, of the overpaid
royalties claimed by BP and refused to pay interest on the amount refunded.

       BP seeks $1,536,785 plus interest for royalty overpayments denied by ONRR. Compl. ¶¶
28, 33-34. In addition, BP seeks interest on the approximately $6.5 million in royalties that
ONRR refunded to BP pursuant to an administrative decision rendered in December 2017.
Compl. ¶¶ 14, 18, 28-29, 42-43. In its complaint, BP advances four claims against the
government. Count I asserts that ONRR owes BP $1,536,785 for royalty overpayments, Compl.
¶¶ 33-35, and Count II avers that ONRR owes BP interest on both the $1,536,785 in unrefunded
overpayments and on the approximately $6.5 million in refunded overpayments, Compl. ¶ 42.
Counts I and II arise under money-mandating provisions of the Federal Oil and Gas Royalty
Management Act of 1982 (“Royalty Management Act”), Pub. L. No. 97-451, 96 Stat. 2447
(codified at 30 U.S.C. §§ 1701-59), as amended by the Federal Oil and Gas Royalty
Simplification and Fairness Act of 1996 (“Royalty Simplification Act”), Pub. L. No. 104-185,
110 Stat. 1700 (1996). Compl. ¶¶ 35, 43. Count III alleges that ONRR breached its leases and
tolling agreements with BP by refusing to refund overpayments and interest. Compl. ¶¶ 45-47.
Count IV claims that ONRR has taken accrued interest owed to BP in violation of the Takings
Clause of the Fifth Amendment. Compl. ¶ 52.

        The government has moved to dismiss the complaint pursuant to Rules 12(b)(1) and (6)
of the Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss Pl.’s Compl.
(“Def.’s Mot.”), ECF No. 10. The issues have been fully briefed, see Pl.’s Opp’n to Def.’s Mot.
to Dismiss (“Pl.’s Opp’n”), ECF No. 13; Def.’s Reply in Supp. of its Mot. to Dismiss Pl.’s
Compl. (“Def.’s Reply”), ECF No. 18, and the court held a hearing on February 26, 2019.

         The court concludes that it possesses jurisdiction to hear claims for refunds and interest
denied by the government under the Royalty Management Act. Accordingly, the government’s
motion to dismiss the complaint for lack of subject-matter jurisdiction is denied. In other
respects, unresolved legal and factual issues mean that BP may well have stated a claim upon
which relief can be granted, although the remedial scheme of the Royalty Management Act
limits the types of claims that can be brought. As a result, the government’s motion to dismiss
for failure to state a claim upon which relief can be granted is granted in part and denied in part.

                                           BACKGROUND

                             A. ONRR’s Audit of BP’s Royalty Payments

         BP leases several oil and gas fields in the Gulf of Mexico from the government, and BP
owes royalties to the government based on the value of oil and gas produced from the leased
fields. Compl. ¶ 1. BP may deduct transportation costs from the value of oil and gas produced,
thus reducing the royalties owed. Compl. ¶¶ 8-11, Ex. 1 at 2.1 Deductible transportation costs
include those incurred for the “construction, operation, and maintenance of non-arm’s-length
transportation facilities,” i.e., where BP owns the transportation infrastructure. Compl. ¶ 11, Ex.
1 at 6; see also Hr’g Tr. at 29:9 to 30:3 (Feb. 26, 2019).2

       Royalty obligations are governed by the Royalty Management Act, 30 U.S.C. §§ 1701-
59, which establishes obligations for leases executed on federal lands. Amendments by the
Royalty Simplification Act in 1996 added, among other things, procedures for conducting audits

       1
         Exhibit 1 to the Complaint consists of a copy of the ONRR Director’s decision of
December 11, 2017, regarding BP’s royalty appeal, BP Expl. & Prod. Co., ONRR-14-0020-
OCS, 2017 WL 10662077, at *1 (Dec. 11, 2017). Citations to Exhibit 1 refer to the page
numbering assigned by the court’s electronic case filing system and not to the page number of
the decision.
       2
           Subsequent references to the transcript of the hearing will omit the date.
                                                   2
and requesting corrections of overpayments and underpayments, as well as a limitation on time
for the Department of the Interior to issue a final decision on demands made by lessees. The
Royalty Simplification Act also allowed lessees to recover interest on refunds of overpayments,
although the provision authorizing interest was repealed in 2015 by the Fixing America’s
Surface Transportation Act of 2015 (“FAST Act”), Pub. L. No. 114-94, Div. C, Title XXXII, §
32301, 129 Stat. 1312 (Dec. 4, 2015).

        On February 7, 2009, ONRR commenced an audit of calculations of costs claimed by BP
for transporting oil and gas through BP’s Na Kika subsea complex. Compl. ¶ 8, Ex. 1 at 4-5.
The audit covered royalties owed between January 1, 2004, and December 31, 2007. Compl. ¶
10, Ex. 1 at 5. Because BP employed the same methodology to calculate transportation costs for
the Na Kika complex as it used for its other Gulf of Mexico leases, ONRR intended to carry over
audit findings for that complex to other BP leases (collectively, the “Deepwater Properties”).
Compl. Ex. 1 at 5; see also Compl. ¶¶ 15-16 (showing dates covered by BP’s refund request).3
The Deepwater Properties included the Holstein property, but excluded the Mad Dog and Mica
properties. See Compl. Ex. 3 (fourth tolling agreement, which covered the Na Kika complex and
Deepwater Properties and listed covered properties); see also Compl. Ex 1 at 6, 9.

       The Royalty Management Act imposes limitations on the periods in which the
government and BP may seek corrections to past royalty payments. See 30 U.S.C. §§
1721a(a)(4) (adjustment period),4 1724(b)(1) (limitation period).5 The Royalty Management Act

       3
        ONRR contends that BP agreed to carry over audit findings, Compl. Ex. 1 at 4-5,
although BP’s appeal of ONRR’s decision to the Department of Interior’s Board of Land
Appeals contested this point, Compl. Ex. 5 at 7-8.
       4
           Paragraph 1721a(a)(4) provides:

       (4) For purposes of this section, the adjustment period for any obligation shall
       be the six-year period following the date on which an obligation became due.
       The adjustment period shall be suspended, tolled, extended, enlarged, or
       terminated by the same actions as the limitation period in section 1724 of this
       title.

30 U.S.C. § 1721a(a)(4).
       5
           Subsection 1724(b) provides:

       (b) Limitation period

             (1) In general
                  A judicial proceeding or demand which arises from, or relates to an
                  obligation, shall be commenced within seven years from the date on which
                  the obligation becomes due and if not so commenced shall be barred. If
                  commencement of a judicial proceeding or demand for an obligation is
                  barred by this section, the Secretary, a delegated State, or a lessee or its
                  designee (A) shall not take any other or further action regarding that
                                                   3
allows the government and a lessee to toll the period by written agreement. 30 U.S.C. § 1724(d);
see also id. § 1721a(a)(4). BP and ONRR executed a series of seven tolling agreements from
2010 to 2014. Compl. Ex. 1 at 5. The first tolling agreement, executed on November 19, 2010,
tolled the periods for the Na Kika properties from November 30, 2010, through December 31,
2011. Compl. Ex. 1 at 5. The second agreement covered the Na Kika and Deepwater Properties
from February 28, 2011, through December 31, 2011. Compl. Ex. 1 at 5. The third, fourth, and
fifth agreements tolled the periods for both the Na Kika and Deepwater Properties through
February 15, 2014. Compl. Ex. 1 at 5; see also Compl. Ex. 3. The sixth and seventh agreements
tolled the periods for the separate Mad Dog property from May 31, 2013, to February 15, 2014.
Compl. Ex. 1 at 5. In sum, the agreements tolled 1,173 days for the Na Kika complex, 1,083
days for the Deepwater Properties, and 260 days for the Mad Dog property. Compl. Ex. 1 at 9.

       On July 13, 2013, ONRR notified BP by e-mail that it was closing the audit of the Na
Kika complex. Compl. Ex. 1 at 7. ONRR issued its final audit report on November 18, 2013,
Compl. Ex. 1 at 8, although ONRR continued to ask BP questions pertaining to the audit into
2014, and BP alleges the audit did not actually end until 2014. See Compl. Ex. 1 at 14, Ex. 5 at
8.

        During the audit, BP identified allowable transportation costs for months covered by the
audit that it had not previously deducted. Compl. ¶ 11, Ex. 1 at 7. BP subsequently submitted
two requests for refunds to ONRR. On November 13, 2013, BP requested $6,955,581.89 plus
interest for royalty overpayments for January 2004 through August 2007 for the Na Kika and

               obligation, including (but not limited to) the issuance of any order,
               request, demand or other communication seeking any document,
               accounting, determination, calculation, recalculation, payment, principal,
               interest, assessment, or penalty or the initiation, pursuit or completion of
               an audit with respect to that obligation; and (B) shall not pursue any other
               equitable or legal remedy, whether under statute or common law, with
               respect to an action on or an enforcement of said obligation.

          (2) Rule of construction
              A judicial proceeding or demand that is timely commenced under
              paragraph (1) against a designee shall be considered timely commenced as
              to any lessee who is liable pursuant to section 1712(a) of this title for the
              obligation that is the subject of the judicial proceeding or demand.

          (3) Application of certain limitations
              The limitations set forth in section 2401, 2415, 2416, and 2462 of Title 28
              and section 226-2 of this title shall not apply to any obligation to which
              this chapter applies. Section 3716 of Title 31 may be applied to an
              obligation the enforcement of which is not barred by this chapter, but may
              not be applied to any obligation the enforcement of which is barred by this
              chapter.

30 U.S.C. § 1724(b) (emphasis added).


                                                 4
Holstein properties. Compl. ¶ 15, Ex. 1 at 7-8. On February 12, 2014, BP requested
$6,619,730.51 plus interest for royalty overpayments for January 2004 through December 2007
for some Deepwater Properties, including additional requests for the Holstein property. Compl.
¶ 16, Ex. 1 at 8. The second request also sought refunds attributable to the Mad Dog and Mica
properties. Compl. ¶ 16, Ex. 1 at 8.6

       In February and June 2014, ONRR partially granted BP’s refund requests, refunding BP
$5,556,497.32 of the $13,575,312.40 claimed, plus interest. Compl. ¶¶ 14, 18. ONRR
concluded that the tolling agreements only operated in favor of the government’s claims for
underpayments, and, applying the period specified in 30 U.S.C. § 1724(b), held that BP could
only request refunds for overpayments within seven years of its request. Compl. ¶ 18. ONRR
accordingly denied refunds for months more than seven years from the dates of BP’s requests.
Regarding BP’s November 2013 claim covering the Na Kika and Holstein properties, ONRR
granted refunds for October 2006 through August 2007, but rejected refunds covering January
2004 through September 2006. See Compl. Ex. 1 at 8. Regarding BP’s February 2014 claim for
the Deepwater, Holstein, Mad Dog, and Mica properties, ONRR granted refunds for January
2007 through December 2007, but rejected refunds for January 2004 through December 2006.
Compl. Ex. 1 at 8. BP appealed the decision to the ONRR Director on October 17, 2014.
Compl. ¶ 19.

                   B. ONRR Director’s Decision on BP’s Appeal of the Audit

         The ONRR Director granted BP partial relief some three years later. Although the
decision of December 11, 2017 provided a net benefit for BP, the Director denied some of the
relief sought and reversed some of the relief granted by the initial decision. First, the Director
held that the tolling agreements did apply bilaterally. Compl. Ex. 1 at 10-11. Next, the ONRR
Director found that the applicable deadline for requests was the six-year “adjustment period” of
30 U.S.C. § 1721a(a) and not seven-year “limitation period” of 30 U.S.C. § 1724(b)(1). Compl.
Ex. 1 at 10-14. The ONRR Director reasoned that adopting the seven-year limitation period
would render “superfluous” the six-year adjustment period, the latter of which altered for refunds
the general seven-year rule. Compl. Ex. 1 at 11-13. He ruled that a lessee may not seek a refund
outside of the adjustment period unless requested during an ongoing audit. Compl. Ex. 1 at 12;
see also 30 U.S.C. § 1721a(a)(4). The Director further concluded that BP’s demands of
November 2013 and February 2014 occurred after the audit closed in July 2013, and that the
government’s requests for information after July 2013 were merely to verify information
provided by BP. Compl. Ex. 1 at 13-14. Accordingly, applying the six-year period and the
tolling agreements, ONRR found that the first five months for Na Kika request, first nine months
of the 2013 Holstein request, and first 12 months of the Deepwater Properties request (to include
claims made in 2014 for the Holstein property) remained ineligible for refund. See Compl. Ex.
1. The remaining months previously excluded were now deemed eligible, and the ONRR

       6
        BP also mentions that the Atlantis property was among those included in the February
2014 refund request. Compl. ¶ 16. Atlantis, however, does not appear among the Deepwater
Properties listed in the fourth tolling agreement, see Compl. Ex. 3, and ONRR’s refund decisions
do not mention this property as among those excluded from the refund, see Compl. Ex. 1 at 8,
15-16. Much like the property’s fabled namesake, the status of the Atlantis property remains
unknown.
                                                5
Director granted a refund of an additional $6,736,368, leaving $1,282,447 not refunded. See
Compl. ¶¶ 14, 18, 28.7

        The ONRR Director, however, found that $254,338 of the initial refund was improper
and had to be returned to the government. See Compl. ¶ 28, Ex. 1 at 16-17. Specifically,
$188,821 for the Mad Dog property and $65,517 for the Mica property should not have been
refunded. Compl. ¶ 28, Ex. 1 at 16-17. The Mica property was not covered by the tolling
agreement and the request was thus untimely, while the Mad Dog property’s tolling agreement
only covered the latter nine months of 2007 and not the 12 months refunded. Compl. ¶ 28, Ex. 1
at 16-17. Notably, however, had ONRR applied the seven-year limitation period urged by BP,
the $1,282,447 not refunded and the $254,338 BP had to return would have been timely. See
also Compl. Ex. 1 at 10.

        Finally, the ONRR Director denied interest on the additional $6.5 million refunded to BP
pursuant to the appeal. Compl. ¶ 28. While BP’s appeal was pending before the Director,
Congress had enacted the FAST Act on December 4, 2015, amending 30 U.S.C. § 1721 by
removing the requirement for ONRR to pay interest on overpayments refunded to lessees. FAST
Act, Pub. L. No. 114-94, § 32301, 129 Stat. at 1741; see also 30 U.S.C. § 1721(h) (2012).
ONRR reasoned that this statutory change barred interest on refunds granted after enactment,
even if the refund request was made, and interest had accrued, prior to enactment of the FAST
Act. Compl. Ex. 1 at 14-15.

        BP appealed the ONRR Director’s decision to the Interior Board of Land Appeals
(“Board of Land Appeals”) on December 29, 2017. Compl. Ex. 5 at 10. BP argued that the
FAST Act should not be applied retroactively and that ONRR incorrectly applied the six-year
adjustment period instead of the seven-year limitation period. Compl. Ex. 5 at 6. BP reiterated
its argument that despite ONRR’s finding that the audit ended in July 2013, the audit actually
extended into 2014, which would also make the refund requests timely for all periods sought.
Compl. Ex. 5 at 8. Finally, BP contended that ONRR was statutorily time-barred from seeking
repayment of improper refunds relating to the Mad Dog and Mica properties. Compl. Ex. 5 at 6.

        Ultimately, the Interior Board of Land Appeals dismissed the appeal for lack of
jurisdiction on June 21, 2018. Compl. Ex. 6 (dismissal decision).8 The Royalty Management
Act provides that if the Secretary of the Interior (the “Secretary”) does not issue a final decision
within 33 months from the date the proceeding commences, the Secretary is presumed to have
issued a decision affirming the agency’s prior decision. 30 U.S.C. § 1724(h).9 The 33-month

       7
         Although not explicitly stated in the complaint or the ONRR Director’s decision, the
court calculates the amount of $6,736,368 by subtracting the June 2014 refund amount from the
total requested and then subtracting the amount the Director refused to refund, $1,282,447, for a
total additional refund of $6,736,368.
       8
         A decision by the Board of Land Appeals constitutes final agency action. See 43 C.F.R.
§ 4.21(d).
       9
           Subsection 1724(h) provides as follows:


                                                  6
period ended in early 2018. Compl. Ex. 5 at 9, Ex. 6. Upon expiration, the lessee may seek
judicial review within 180 days of receipt of notice of final agency action. 30 U.S.C. §
1724(h)(2), (j). BP sought judicial review in this court on July 6, 2018. Compl. at 1.

                               STANDARDS FOR DECISION

                       A. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction

        The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The

       (h) Appeals and final agency action

          (1) 33-month period
               Demands or orders issued by the Secretary or a delegated State are subject
               to administrative appeal in accordance with the regulations of the
               Secretary . . . . The Secretary shall 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, which is
               later. The 33-month period may be extended by any period of time agreed
               upon in writing by the Secretary and the appellant.

          (2) Effect of failure to issue decision

              If no such decision has been issued by the Secretary within the 33-month
              period referred to in paragraph (1)—

              (A) the Secretary shall be deemed to have issued and granted a decision in
                  favor of the appellant as to any nonmonetary obligation and any
                  monetary obligation the principal amount of which is less than
                  $10,000; and

              (B) the Secretary shall be deemed to have issued a final decision in favor
                  of the Secretary, which decision shall be deemed to affirm those issues
                  for which the agency rendered a decision prior to the end of such
                  period, as to any monetary obligation the principal amount of which is
                  $10,000 or more, and the appellant shall have a right to judicial
                  review of such deemed final decision in accordance with Title 5.

30 U.S.C. § 1724(h) (emphasis added).

       BP and the government disagreed about when the 33–month period expired, but both
agreed that its expiration precluded the Board of Land Appeals from rendering a decision. See
Compl. Ex. 6 at 2.
                                                    7
Tucker Act does not, however, provide a plaintiff with any substantive rights. United States v.
Testan, 424 U.S. 392, 398 (1976). To establish this court’s jurisdiction under the Tucker Act, “a
plaintiff must identify a separate source of substantive law that creates the right to money
damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant
part) (citing United States v. Mitchell, 463 U.S. 206, 216 (1983); Testan, 424 U.S. at 398). If a
plaintiff fails to raise a claim under a money-mandating provision, this court “lacks jurisdiction,
and the dismissal should be for lack of subject matter jurisdiction.” Jan’s Helicopter Serv., Inc.
v. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v.
United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

        A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. This six-year statute of limitations is jurisdictional
and is not susceptible to equitable tolling or any of the other doctrines that would excuse an
untimely claim. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134-38 (2008).

        BP, as plaintiff, must establish jurisdiction by a preponderance of the evidence. Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on the government’s
motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts
asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”
Id. at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).

           B. Rule 12(b)(6) - Failure to State a Claim Upon Which Relief Can be Granted

        A complaint will survive a motion to dismiss under RCFC 12(b)(6) if it “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The factual matters alleged “must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted).

        When reviewing the complaint, “the court must accept as true the complaint’s undisputed
factual allegations and should construe them in a light most favorable to the plaintiff.”
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v. Allain, 478
U.S. 265, 283 (1986) (additional citation omitted)). Conclusory statements of law and fact,
however, “are not entitled to the assumption of truth” and “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. “‘[N]aked assertions[s]’ devoid of ‘further factual
enhancement”’ are insufficient to state a claim. Id. at 678 (quoting Twombly, 550 U.S. at 557);
Accord Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) (“Conclusory allegations
of law and unwarranted inferences of fact do not suffice to support a claim.”).

                                                    8
                                           ANALYSIS

                    A. Jurisdiction Over BP’s Claims Under the Tucker Act

        The government argues that the Royalty Management Act contains a detailed remedial
scheme that displaces the Tucker Act. Def.’s Mot. at 10-14. In consequence, the government
avers that 30 U.S.C. § 1724(h) requires that judicial review be pursued only in federal district
court. Id. at 11. As quoted earlier, Paragraph (2) of Subsection 1724(h) provides in pertinent
part that “the appellant shall have a right to judicial review of such deemed final decision in
accordance with Title 5.” 30 U.S.C. § 1724(h)(2) (emphasis added). While judicial review
pursuant to Subsection 1724(h) does not specify where a lessee must file its complaint, the
government interprets “in accordance with Title 5” as invoking not only the standard of review
of the Administrative Procedure Act (the “APA”), but also implicitly routing relief to district
courts, as this court lacks authority to invoke the APA as a source of jurisdiction. Def.’s Mot. at
13.

          This argument ignores that the APA is not itself an independent grant of jurisdiction to
any court, whether to district courts or this court. See Califano v. Sanders, 430 U.S. 99, 107
(1977); Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304 (Fed. Cir. 2004) (“It is well
established that the APA does not afford an implied grant of subject-matter jurisdiction
permitting federal judicial review of agency action.”) (quoting Califano, 430 U.S. at 107). The
APA also notably waives sovereign immunity only for claims “seeking relief other than money
damages.” 5 U.S.C. § 702. That adjudication under the APA, as contrasted to merely invoking
and using its standard or review, expressly excludes monetary relief gives the government no
pause. As it would have it, if relief is warranted, the district court can issue a declaratory
judgment reversing the agency and a remand to the agency for relief in accordance with the
court’s equitable decision. Hr’g Tr. at 18:11 to 19:21; see Def.’s Reply at 12. In this respect, the
government ignores Delano Farms Co. v. California Table Grapes Commission, 655 F.3d 1337,
1347 (Fed. Cir. 2011), in which the court commented that the APA “cannot serve as a ‘backdoor’
to . . . district court jurisdiction over a monetary claim.” Even so, the government bases its
displacement argument on the statutory language used to invoke judicial review, the express
waiver of several specified statutes of limitations, and the legislative history of the Royalty
Simplification Act.10


       10
           For purposes of its motion only, the government assumes that the former provisions of
Section 1721 regarding interest on refunds of overpayments were money-mandating prior to its
repeal by the FAST Act. Def.’s Mot. at 10 n. 3. The government also asserts without
explanation that Sections 1721a and 1724 are not money-mandating. Id. at 10. Because the
Tucker Act predicates this court’s jurisdiction on the plaintiff’s invoking a money-mandating
statute, e.g., Jan’s Helicopter Serv., 525 F.3d at 1308 (quoting Greenlee Cty., 487 F.3d at 876),
the court must address the money-mandating character of these statutes as part of its
jurisdictional inquiry, see, e.g., Fisher, 402 F.3d at 1173.

       Prior to the FAST Act, Subsection 1721(j) stated in part: “If the estimated payment
exceeds the actual royalties due, interest is owed on the overpayment.” 30 U.S.C. § 1721(j)
(2014); see also id. § 1721(h) (“Interest shall be allowed and paid or credited on any
                                                 9
         BP counters that Subsection 1724(h) is silent as to which court has jurisdiction and
contains no waiver of sovereign immunity. Pl.’s Opp’n at 2. It avers that the remedial scheme
of 30 U.S.C. § 1724(h) does not displace the Tucker Act. Id. at 16. Rather, whether this court or
a district court has jurisdiction would depend on the relief sought. “The Tucker Act waives
sovereign immunity with regard to actions for money damages . . . and the APA waives
sovereign immunity for actions ‘seeking relief other than monetary damages.’” Id. at 22 (citing
28 U.S.C. § 1491 and quoting 5 U.S.C. § 702). BP contends that the Royalty Management Act,
along with the Outer Continental Shelf Lands Act, Pub. L. No. 95-372, 43 U.S.C. §§ 1331-56b,
provide the money-mandating statutes required to invoke the Tucker Act. Pl.’s Opp’n at 5. Thus
in short, BP argues that the text of the Royalty Management Act and the APA, the legislative
intent of the Royalty Simplification Act, and precedent in the circuit courts of appeals which had
previously ruled on jurisdiction all point to this court as the proper forum for addressing BP’s
refund and interest claim.

        “The Tucker Act is displaced . . . when a law assertedly imposing monetary liability on
the United States contains its own judicial remedies. In that event, the specific remedial scheme
establishes the exclusive framework for the liability Congress created under the statute.” United
States v. Bormes, 568 U.S. 6, 12 (2012) (citing Hinck v. United States, 550 U.S. 501, 506
(2007)). “A remedy furnished by statute preempts a more general remedy.” E.g., Shearin v.
United States, 992 F.2d 1195, 1196 (Fed. Cir. 1993) (collecting cases). By a “detailed remedial
scheme,” the Supreme Court referred to one which “‘set out a carefully circumscribed, time-
limited, plaintiff-specific’ cause of action [and] ‘precisely define[d] the appropriate forum.”’
Bormes, 568 U.S. at 15 (quoting Hinck, 550 U.S. at 507). In short, displacement occurs when
another statute “enables claimants to pursue in court the monetary relief contemplated by the
statute” “[w]ithout resort to the Tucker Act.” Id. at 15. “But where two statutes are ‘capable of
co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the
contrary, to regard each as effective.’” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984)
(quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34 (1974)) (subsequent
citations omitted) (discussing Tucker Act displacement specifically).

        “To determine whether a statutory scheme displaces Tucker Act jurisdiction, a court must
‘examin[e] the purpose of the [statute], the entirety of its text, and the structure of review that it
establishes.”’ Horne v. Department of Agriculture, 569 U.S. 513, 527 (2013) (quoting United

overpayment.”). Section 1721a provides the process for a lessee to request a refund due to
“overpayment of an obligation,” id. § 1721a(a)(1), and Section 1724 describes the rights and
process to enforce a royalty obligation, to include enforcing a “demand” arising from or relating
to a lessee’s royalty obligation, id. § 1724(b), (c), (i), (j). “‘Obligation’ means . . . any duty of
the Secretary . . . to pay, refund, offset, or credit monies including . . . principal . . . [or] interest.”
Id. § 1702(25)(A). A “refund” is “the return of an overpayment,” id. § 1702(30) and an
“overpayment” is “any payment by a lessee . . . in excess of an amount legally required to be
paid . . . and includes the portion of any estimated payment . . . in excess of the royalties due,” id.
§ 1702(27). A “demand” includes “a separate written request by a lessee . . . which asserts an
obligation due the lessee.” Id. § 1702(23)(B). The non-discretionary nature of the statutory text
requiring refunds with interest to the lessee when properly requested therefore indicates that
these provisions are money-mandating. The Act also mandates payment of refunds by the
Secretary of the Treasury. Id. § 1721a(b)(2).
                                                    10
States v. Fausto, 484 U.S. 439, 444 (1988) (alteration in original)). “[T]he proper inquiry [for
displacement] is not whether the statute ‘expresses an affirmative showing of congressional
intent to permit recourse to a Tucker Act remedy,’ but ‘whether Congress has in the [statute]
withdrawn the Tucker Act grant of jurisdiction to the Court of Claims . . . .’” Ruckelshaus, 467
U.S. at 1017 (quoting Regional Rail Reorganization Act Cases, 419 U.S. at 126) (alteration in
original).

        Displacement requires an unambiguous intent, even where a comprehensive remedial
scheme is present. E.g., Ruckelshaus, 467 U.S. at 1017; see also Acceptance Ins. Co. Inc. v.
United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007) (“[W]ithdrawal of Tucker Act jurisdiction
by implication is disfavored, which means that a court must find that the statute at issue . . .
reflects an unambiguous congressional [] intent to displace.”). Consequently, the Supreme Court
has ruled that “a comprehensive regulatory statute” does not inherently displace the Tucker Act.
Ruckelshaus, 467 U.S. at 991, 1017. In Ruckelshaus, the Supreme Court found that the Federal
Insecticide, Fungicide, and Rodenticide Act was a “comprehensive regulatory statute” that
created a “mandatory data-licensing scheme” between private parties and the Environmental
Protection Agency, with an administrative process followed by judicial review to resolve
disputes involving compensation. Id. at 991-97, 1017. A district court had held that several data
disclosure provisions constituted a Fifth Amendment Taking but that the remedies afforded by
the statute were inadequate and the Tucker Act was displaced by the comprehensive scheme, and
thus enjoined enforcement of those provisions. Id. at 999-1000. The Supreme Court, in vacating
the district court’s decision, held that while a Fifth Amendment Taking did occur, a remedy
under the Tucker Act remained because Congress had not clearly withdrawn its jurisdiction and
the district court could have construed the statues as complimentary. Id. at 1016-17.

       1. Statutory scheme for refund requests under the Royalty Management Act.

        The Royalty Simplification Act’s amendments to the Royalty Management Act
established an administrative process for both the government and a lessee to correct royalty
payments, subject to judicial review. See Royalty Simplification Act §§ 4, 5 (codified at 30
U.S.C. §§ 1721a, 1724). A lessee must resort to the administrative process before seeking
judicial review. See 30 U.S.C. § 1724(h); see also 43 C.F.R. § 4.21(c) (providing that a
Department of Interior Director’s decision that remains administratively appealable is not final
agency action).

        A lessee may seek a refund of an overpayment within “a reasonable period of time” and
within the “adjustment period.” Id. § 1721a(a)(1). The adjustment period is a “six-year period
following the date on which an obligation became due,” but the period may be tolled for
enumerated reasons, such as mutual agreement of the lessee and the government. Id. §
1721a(a)(4); see also id. § 1724(d). An obligation becomes due “when the right to enforce the
obligation is fixed,” which occurs on the last day of the month following the month of
production. Id. § 1724(c). Outside of the adjustment period, a refund may only be requested
during an audit of the royalty paid or due. Id. § 1721a(a)(3).

       A lessee seeks a refund by making a written request to the Secretary that is identified as a
“demand” and describes when and why the overpayment occurred and to whom it is owed. 30
U.S.C. § 1721a(b). The Secretary must pay or deny the refund within 120 days of receipt. Id. §

                                                11
1721a(b)(3). A lessee’s refund demand is made to ONRR. ONRR’s decision to pay or deny the
refund constitutes an order, see 30 C.F.R. § 1290.102 (defining “order” to include a “decision to
deny a lessee’s . . . written request that asserts an obligation due the lessee”), and is appealable
within a prescribed time to the ONRR Director, id. § 1290.105(a). The decision of the ONRR
Director is appealable within a prescribed time to the Interior Board of Land Appeals. Id. §
1290.108; see also 43 C.F.R. § 4.1(b)(2) & subpt. E. A decision by the Board of Land Appeals
constitutes final agency action. 43 C.F.R. § 4.21(d).

        The Secretary must, however, “issue a final decision in any administrative proceeding . . .
within 33 months from the date such proceeding was commenced,” though the parties may agree
to extend the period. 30 U.S.C. § 1724(h)(1). An administrative proceeding encompasses “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). A demand includes a
“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).

        If there is no final decision after 33 months, “the Secretary shall be deemed to have
issued a final decision . . . affirm[ing] those issues for which the agency rendered a decision prior
to the end of [the 33-month] period” as to any monetary obligation exceeding $10,000. 30
U.S.C. § 1724(h)(2)(A)-(B). A lessee without a final decision after the time has expired has a
“right to judicial review of such deemed final decision in accordance with Title 5.” Id. §
1724(h)(2)(B). No judicial forum for review is specified. The lessee may seek review beyond
the seven-year limitation period “so long as such judicial proceeding is commenced within 180
days from receipt of notice by the lessee . . . of the final agency action.” Id. § 1724(j).

       2. Whether unambiguous intent to displace the Tucker Act exists.

         The Royalty Management Act, as amended, does provide a remedial scheme for
requesting refunds by establishing requirements for a lessee to pursue refund demands with
ONRR and requiring a final agency decision within 33 months. See 30 U.S.C. §§ 1721a(4),
1724(b), (h). It contains time limits for requesting refunds, commencing demands, or initiating
judicial proceedings, and specifies when claims accrue and methods to terminate or toll the time
limits. Id. §§ 1721a, 1724(b)-(d), (e), (j). It identifies plaintiffs in refund demands as lessees or
their designees. Id. § 1721a. The cause of action available to a lessee when the Secretary fails to
act is, as stated previously, “judicial review [of the agency’s last decision] . . . in accordance with
Title 5.” Id. § 1724(h)(2)(B).

       As noted earlier, the existence of a remedial scheme does not inherently displace the
Tucker Act. Rather, the existence of a remedial scheme requires that the terms of that scheme
govern the process for relief and the relief afforded. See Bormes, 568 U.S. 12-14; see also
Ruckelshaus, 467 U.S. at 992-97.11 Here, the Royalty Management Act contains no express

       11
         BP argues that the Royalty Management Act does not waive sovereign immunity, see
Pl.’s Opp’n at 29, but the court disagrees. It allows a lessee to request a monetary refund and, if
denied, to seek judicial review, which could result in a grant of the refund. 30 U.S.C. § 1724(h).
The Act also mandates payment of refunds by the Secretary of the Treasury. Id. § 1721a(b)(2).
                                                  12
requirement of where judicial review must be sought. Therefore, for the Royalty Management
Act’s remedial scheme to displace this court’s jurisdiction under the Tucker Act, the Royalty
Management Act’s invocation of the APA must necessarily imply judicial review before a court
other than this court. The court finds it does not and that no displacement of this court’s
jurisdiction occurs. Rather, existing jurisdictional principles determine the proper forum. See
Ruckelshaus, 467 U.S. at 1016-17; Straughter v. United States, 120 Fed. Cl. 119, 125 (2015). As
a result, claims by a lessee against the government for money damages come to this court, and
claims against a lessee or by a lessee seeking relief other than money damages head to a district
court.

        Merely invoking the APA when permitting judicial review does not deprive this court of
jurisdiction. The APA waives sovereign immunity with respect to equitable relief sought against
the United States and provides a standard for reviewing administrative decisions. See 5 U.S.C. §
702. It does not channel relief to any specific court. See id. (referring to “a court of the United
States”). This court’s Tucker Act jurisdiction encompasses monetary claims against the
government not sounding in tort and disputes regarding government contract solicitations and
award decisions. 28 U.S.C. § 1491. A claim challenging an agency action can therefore
properly arise under the Tucker Act, and when it does, this court invokes the standards of review
under the APA when reviewing the agency’s action.12

       Review under the APA is pertinent for a number of types of claims before this court, and
the court has a specific rule in place to facilitate review in such cases. See, e.g., RCFC 52.1(a)
(“When proceedings before an agency are relevant to a decision in a case, the administrative
record of those proceedings must be certified by the agency and filed with the court.”).

        For example, the Tucker Act expressly invokes the APA regarding this court’s review of
agency procurement decisions involving contract solicitations, bid evaluations, and contract
awards. 28 U.S.C. § 1491(b)(1), (4). It requires this court to review the agency’s decisions
“pursuant to the standards set forth in section 706 of Title 5,” i.e., the standard of review
prescribed in the APA. Id. § 1491(b)(4). And, for military service members seeking monetary
payments or disability benefits in this court under the Tucker Act, it is “well established that
judicial review of military correction boards is conducted under the APA.” Walls v. United
States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (citations omitted); see also Metz v. United States,
466 F.3d 991, 998 (Fed. Cir. 2006) (“[T]he Court of Federal Claims reviews [a military board]
action under the same standard as any other agency action, [which is] whether the decision is
arbitrary, capricious, unsupported by substantial evidence, or contrary to law.”) (citing Porter v.
United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998)). Contrastingly, if correction of a military
board’s decision would not mandate compensation, this court would lack jurisdiction. See, e.g.,
Murphy, 93 F.2d at 874. The court accordingly invokes the rubric of the APA to review an
agency action when the claim arises under a grant of jurisdiction to this court independent of the

       12
         A suit seeking “relief other than money damages” under the APA would not be
reviewable by this court, except for government procurement decisions, because the agency’s
action would not be money-mandating within this court’s Tucker Act jurisdiction. See Heuss v.
United States, 315 Fed. Appx. 255, 257 (Fed. Cir. 2008) (“[T]he Court of Federal Claims does
not have jurisdiction to hear cases arising under the APA.”) (citing Murphy v. United States, 993
F.2d 871, 874 (Fed. Cir. 1993) (emphasis added).
                                                13
APA. See Martinez v. United States, 333 F.3d 1295, 1313-14 (Fed. Cir. 2003) (“To be sure, in
monetary actions brought under the Tucker Act, the . . . Court of Federal Claims [has] often
reviewed [military personnel decisions] . . . . [It has] treated a claim for back pay within [its]
jurisdiction as an appropriate occasion for review the actions of the [military]. And in doing so,
[it has] granted relief [if it has] found that the [military’s] decision is arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.”) (citations and internal quotations
omitted).

        BP presents claims arising under the Tucker Act, as BP seeks monetary damages against
the United States arising from a money-mandating statute, mainly the Royalty Management Act.
See generally Compl. That the court must proceed by reviewing the agency’s decisions under
the APA standard rather than conducting a de novo determination of the facts presents no
impediment to this court’s jurisdiction. Put simply, the court is not exercising jurisdiction over
claims arising under the APA. Rather, the court is exercising jurisdiction under the Tucker Act,
and will review the underlying agency decision pursuant to the standards of the APA and RCFC
52.1, just as it would for a government procurement case or a military pay or disability case.

        The government asks the court to distinguish between the language used to invoke the
APA by the Tucker Act regarding procurement protests and by the Royalty Management Act.
Def.’s Mot. at 13-14. While the Tucker Act states that this court reviews an agency’s
procurement decision “pursuant to the standards set forth in section 706 of Title 5,” 28 U.S.C. §
1491(b)(4) (emphasis added), the Royalty Management Act grants a “right to judicial review . . .
in accordance with Title 5,” 30 U.S.C. § 1724(h)(2)(B) (emphasis added). The government
contends there is an “unambiguous” difference in this express language, specifically that
“pursuant to the standards” merely imports the standard, but “in accordance with title 5” also
imports the forum implicit in the equitable relief permitted by APA review. Def.’s Mot. at 13-
14. Yet, directing judicial review “in accordance with Title 5” neither explicitly nor implicitly
connotes exclusive jurisdiction in the district courts. As the government’s own motion noted,
“the prepositional phrase ‘pursuant to’ carries the meaning of ‘. . . in accordance with.”’ Def.’s
Mot. at 13 (quoting Baird v. Sonnek, 944 F.2d 890, 893 (Fed. Cir. 1991)). Thus, the introductory
phrases of both statutes are on a par with each other. More tellingly, other remedial schemes that
displace the Tucker Act specify a particular forum of review, including those that invoke the
APA.

        For example, the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994 (“Agriculture Reorganization Act”), Pub. L. No. 103-354
(amending, among other provisions, 7 U.S.C. §§ 6991-7002), creates one remedial scheme
invoking the APA, see St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 991 (Fed. Cir.
2019). When St. Bernard Parish brought suit against the Department of Agriculture in this court
under the Tucker Act invoking a contract theory, the Court of Appeals for the Federal Circuit
affirmed the trial court’s dismissal of the action, finding that Congress had “provided for such
claims to be addressed [administratively], followed by judicial review in a federal district court.”
Id. at 991. The Agriculture Reorganization Act stated that a “final determination of the
[Department of Agriculture’s National Appeals] Division shall be reviewable and enforceable by
any United States district court of competent jurisdiction in accordance with chapter 7 of Title
5.” 7 U.S.C. § 6999 (emphasis added); St. Bernard Parish Gov’t, 916 F.3d at 997. Similarly, the
Medicare Act displaces the Tucker Act because it specifies “district court” review “pursuant to

                                                14
the applicable provisions under chapter 7 of Title 5.” 42 U.S.C. § 1395oo(f)(1); accord St.
Vincent’s Med. Ctr. v. United States, 32 F.3d 548, 550 (Fed. Cir. 1994) (citing 42 U.S.C. §
1395oo(f)(1)).

        Statutes found to displace the Tucker Act absent reference to the APA also identify the
forum with particularity. The Fair Credit Reporting Act specifies that “jurisdiction will lie ‘in
any appropriate United States district court, . . . or any other court of competent jurisdiction,’”
and thus a claimant could “pursue in court the monetary relief contemplated by the statute”
“[w]ithout resort to the Tucker Act.” Bormes, 568 U.S. at 15 (quoting 15 U.S.C. § 1681p); see
also Horne, 569 U.S. at 527-28 (relying on the specification of district court review in the
Agricultural Marketing Agreement Act); Alpine PCS, Inc. v. United States, 878 F.3d 1086, 1093-
94 (Fed. Cir. 2018) (relying on the specification in the Communications Act of the D.C. Circuit
as the forum to review orders by the Federal Communication Commission); Shearin, 992 F.2d at
1196 (A request for an award of attorney fees under the Criminal Justice Act “shall be made to
the district court [or the] appellate court before which the attorney provided representation.”)
(quoting 18 U.S.C. § 3006A(d)(4)).13

        In contrast, statues that do not specify a forum have been held to not displace the Tucker
Act. See Abbey v. United States, 745 F.3d 1363, 1369-70 (Fed. Cir. 2014) (distinguishing the
Fair Credit Reporting Act from the Fair Labor Standards Act by finding that the latter act did not
displace the Tucker Act because designating “‘any Federal or State court of competent
jurisdiction’ . . . does not specify a forum that is contrary to that specified by the Tucker Act.”).

        To sum, statutes found to displace the Tucker Act are unambiguous as to where
jurisdiction lies. What distinguishes the remedial scheme in the Royalty Management Act from
those statutes that displace the jurisdictional grant of the Tucker Act are statutorily-specified
forums of review. Such specification “afford[s] . . . a ready avenue to bring . . . claims,” Horne,

       13
          The government cites to Colorado Dep’t of Human Servs. v. United States, 74 Fed. Cl.
339 (2006), where this court held that “appeal and review . . . for purposes of chapter 7 of . . .
Title 5” under the Randolph-Sheppard Act precluded this court’s jurisdiction, id. at 347 n.7
(citing 20 U.S.C. § 107d-2) (emphasis added). The Randolph-Sheppard Act gives “blind
vendors a priority to operate vending facilities on federal property,” id. at 341, and contains a
“comprehensive scheme for the resolution of disputes,” id., where an arbitration panel must first
issue a decision, which is then subject to ‘“appeal and review . . . for purposes of chapter 7 of . . .
Title 5,”’ id. at 345 (quoting 20 U.S.C. § 107d-2) (emphasis added). The claim arose as a protest
to the Air Force’s decision to let a dining facility contract with the plaintiff expire and thus allow
the Air Force to perform the services in-house. Id. at 341-42. Plaintiffs sought a preliminary
injunction in this court pending the decision of the arbitration panel. Id. at 340. The court held it
lacked jurisdiction to issue an injunction because it lacked jurisdiction to review an arbitration
panel’s decision, either under the APA (because the APA is not a jurisdictional statute) or under
the Tucker Act. Id. at 347-48. While the court found the Tucker Act displaced by the Randolph-
Sheppard Act’s remedial scheme, it was not evident that Tucker Act jurisdiction would have
existed regardless, and the court even “question[ed] whether a ‘procurement’ exists in this case.”
Id. at 348. At bottom, even though no forum was specified by the statute, it appears that no
claim in that case was or could have been brought within Tucker Act jurisdiction.


                                                  15
569 U.S. at 527, and “precisely define[s] the appropriate forum,” Hinck, 550 U.S. at 506-07. The
Royalty Management Act does neither.

        Furthermore, the general reference to APA review in Subparagraph 1724(h)(2)(B) stands
in contrast to other portions of the Royalty Management Act in which district courts are
expressly designated as the appropriate forum for certain types of actions. Prior to 1996, district
courts were empowered to compel compliance with a subpoena issued by the Department, 30
U.S.C. § 1717(b), to review on the administrative record civil penalties issued by the
Department, id. § 1719(j), to hear civil actions for injunctive and specific enforcement brought
by the Attorney General, id. § 1722, and to hear suits brought by a state against a lessee, id. §
1734(b). After amendment by the Royalty Simplification Act in 1996, district courts were
further enabled to review Department orders regarding state delegation proposals. Id. § 1735(g).
Each such grant of jurisdiction to the district courts specifies which district court has jurisdiction.
E.g., id. § 1719(j) (where the alleged violation took place); id. § 1722(b) (where the violation
allegedly occurred or where the defendant is found or transacts business); id. § 1735(g) (district
that includes the capital of the affected state). That Congress specifically identified district
courts as the judicial forum for five types of claims, but did not do so for Subparagraph
1724(h)(2)(B), indicates that district courts were not intended to be the exclusive forum for
judicial review under Subparagraph 1724(h)(2)(B). See Keene Corp. v. United States, 508 U.S.
200, 208 (1993) (“Where Congress includes particular language in one section but omits it in
another,” it is “presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.”). In short, nothing in the statutory context demonstrates the unambiguous intent
necessary to displace the Tucker Act for actions for monetary relief under Subparagraph
1724(h)(2)(B).

        The government nonetheless contends that Congress adopted Subparagraph
1724(h)(2)(B) with an awareness that most review litigation had occurred in district courts, with
a few cases in this court. Def.’s Mot. at 14. Given this background, the government argues that
Congress intended to confirm that judicial review would occur before district courts, “by tying
judicial review to ‘Title 5.”’ As an example, the government points to the Senate Committee
Report to S. 1014,14 which mentions that under current practice, after the Secretary takes
jurisdiction of a matter, “an appellant [could] pursue relief in U.S. District Court.” Def.’s Mot. at
14 (citing S. Rep. No. 104-260, at 14 (1996)) (alteration in original).

        As previously discussed, merely tying judicial review to the APA does not inherently
channel cases exclusively to the district courts. Rather, reference to the APA serves to delineate
the type of adjudication that would occur, not the forum that would conduct the review. Had 30
U.S.C. § 1724(h) merely provided for judicial consideration, de novo determination of the facts
might be permissible. The APA, however, dictates a review of factual matters based on the
administrative record as it existed at the time of the decision. See 5 U.S.C. § 706.

        The legislative history of the Royalty Simplification Act supports this inference regarding
the standard of review over that offered by the government. As initially proposed by H.R. 1975,
the Royalty Simplification Act provided a “lessee [with] a right of de novo judicial review and

       14
         S. 1014 was the Senate’s companion bill to H.R. 1975, the House’s Royalty
Simplification Act.
                                                  16
appeal of such final agency action.” H.R. 1975, 104th Cong., § 3 at 8 (1995) (enacted, as
amended) (emphasis added); accord 141 Cong. Rec. 18,060 (1995) (S. 1014, companion bill to
H.R. 1975). During a hearing on H.R. 1975 held by the House Subcommittee on Energy and
Mineral Resources on July 18, 1995, an organization of royalty auditors for states and tribal
authorities submitted written testimony objecting to de novo review. A Bill to Improve the
Management of Royalties From Federal & Outer Continental Shelf Oil & Gas Leases, and for
Other Purposes: Hearing on H.R. 1975 Before the H. Subcomm. on Energy & Mineral Res. of
the H. Comm. on Res., 104th Cong. 140-41 (1995) [hereinafter Hearing on H.R. 1975]
(statement of Wanda Fleming, First Vice Chair, State & Tribal Royalty Audit Comm.). When
H.R. 1975 was reported from the committees and subsequently passed by both houses, judicial
review was changed to be “in accordance with Title 5.” 142 Cong. Rec. 17,291 (1996) (H.R.
1975, Royalty Simplification Act, as passed by the House of Representatives); accord S. Rep.
No. 104-260, at 8, 39 (1996) (Report on S. 1014, amending the judicial review provision among
others); see also 142 Cong. Rec. 21,662 (1996) (Senate’s passage of H.R. 1975 as amended,
noting it was identical to S. 1014 as reported); H.R. Rep. No. 104-667, at 8, 38 (1996) (Report on
H.R. 1975, amending the judicial review provision, among others).

        The Senate Report’s brief reference to existing practice of judicial review in district court
occurs in the context of explaining why the “lengthy administrative appeals process,” which was
causing “$450 million in disputed claims [to] languish in a bureaucratic appeals process,”
necessitated cutting off the administrative process after 33 months. S. Rep. 104-260, at *14.
The court sees no intent that this remark served to indicate Congress’s intention to specify a
particular forum. If that had been Congress’ goal, it would have had to express a desire to
eliminate this court as a forum, dislodging established practice.

        Prior to enactment, this court had exercised jurisdiction over royalty claims in which
lessee sought monetary relief by way of a refund, while district courts did not. See Diamond
Shamrock Expl. Co. v. Hodel, 853 F.2d 1159, 1168 (5th Cir. 1988) (finding that a referred
request “against the United States seeking monetary relief in excess of $10,000.00” and brought
“under the authority of 30 U.S.C. § 1711(c)(1)” is “within the exclusive jurisdiction of the
Claims Court under the Tucker Act”) (citing Amoco Production v. Hodel, 815 F.2d 352 (5th Cir.
1987); Marathon Oil Co. v. United States, 16 Cl. Ct. 332 (1989) (“[T]his court has subject matter
jurisdiction to the extent Marathon seeks a refund of the approximately $1,700,000 paid
[pursuant to the Royalty Management Act].”); cf. Chevron U.S.A., Inc. v. United States, 923 F.2d
830 (Fed. Cir. 1991) (holding that the “Claims Court appropriately took jurisdiction of the
[royalty] refund claim based on the [Outer Continental Shelf Lands Act.”]).15 And when the


       15
          While not binding on this court, the court notes cases in three circuits that address
jurisdiction over refund requests subsequent to enactment of the Royalty Simplification Act. The
Fifth and Tenth Circuit Courts of Appeals have maintained that suits for refunds of royalty
overpayments arise under the Tucker Act and must be brought in this court. In Santa Fe Snyder
Corporation v. Norton, 385 F.3d 884, 893 (5th Cir. 2004) and Amerada Hess Corp. v.
Department of Interior, 170 F.3d 1032, 1035-36 (10th Cir. 1999), both courts dismissed claims
for refunds of royalty overpayments for lack of subject-matter jurisdiction, and cited Diamond
Shamrock, 853 F.2d at 1168, for the proposition that the Court of Federal Claims has exclusive
jurisdiction over refund claims. Plaintiffs in both cases, however, requested refunds under other
                                                 17
legislative history does refer to prior judicial decisions, it does so in the context of the need to
resolve circuit splits over the applicable statute of limitations. See H.R. Rep. 104-667, at 14, 48-
49; see also Hearing on H.R. 1975, at 2, 20-21, 101-03.

        The House Report of the Royalty Simplification Act describes the purpose as
“establish[ing] clear and equitable provisions for the effective and efficient administration of
leases . . . to further exploration and development of oil and gas resources.” H.R. Rep. 104-667,
at 13. The House Report identifies as the basis for the amendments a “lack[] in clarity,
consistency and reciprocity, and [] inequities which impose unnecessary and unreasonable costs
and burdens on lessees and the [f]ederal [g]overnment alike.” Id. “For example, multiple
conflicting statutes of limitation for suits to collect royalty payments and recent court decisions .
. . have created uncertainty and unfairness for lessees and operators subject to indefinite audit
collection. . . . In addition, current law severely restricts [] lessees’ access to overpayments made
to the [f]ederal [g]overnment, and does not provide for the time value of lessees’ overpayments.”
Id. at 14. According to the Senate Report, the Royalty Simplification Act would, among other
things, speed the audit, collection, and appeals process, lessen record retention requirements and
burdens, grant reciprocity regarding interest for incorrect payments, and reduce the
administrative burden on small operators. S. Rep. 104-260, at 13-14. The Senate Report also
noted uncertainties regarding the statute of limitations applicable to government audits. Id. at 14.
Overall, neither the text of the Act nor the legislative history in the House and Senate identify the
purpose of the Royalty Simplification Act as channeling judicial review to any particular court.
The expressed statutory purposes simply do not bear on the court’s exercise of jurisdiction.16


offshore royalty statutes, not the Royalty Management Act. See Santa Fe Snyder, 385 F.3d at
885-86; Amerada Hess, 170 F.3d at 1033.

         Tangentially, the Court of Appeals for the D.C. Circuit found that a district court had
jurisdiction under Subsection 1724(h) where the issue was whether the 33-month period had
elapsed. See Murphy Expl. & Prod. Co. v. United States Dep’t of the Interior, 252 F.3d 473, 475
(D.C. Cir. 2001). The D.C. Circuit held that the 33-month deadline commenced when the
plaintiff submitted its refund request, not when the administrative appeal commenced, and thus
the agency’s decision could be deemed final. Id. at 475, 477. The agency action appealed to the
district court was not a refund denial, but rather the agency’s 1998 order to plaintiff to pay the
government $368,000 in royalties, which represented the balance after accounting for
underpayments and overpayments. Id. at 476-77. The precise jurisdictional issue addressed was
whether the agency’s action should be deemed final. Id. at 480-82.
       16
          As amended, the Royalty Simplification Act made changes to the remedial scheme as
follows. Section 2 added 17 definitions, including terms such as “adjustment,” “commence,”
“demand,” “obligation,” “overpayment,” and “refund.” Section 3 expanded activities that the
Secretary of the Interior could delegate to the states and the process for delegation, and provided
judicial review of the Secretary’s decision before a district court in the affected state. Pub. L.
No. 104-185, § 3, 110 Stat. at 1702-04 (codified at 30 U.S.C. § 1735). Section 4 added Section
1724 in its entirety, which, among other things, established the seven-year limitation period and
tolling criteria, replaced several statutes of limitations, specified records that lessees must
maintain, and established the appeals process and right of judicial review under the APA when
                                                 18
         In sum, the Royalty Management Act does not displace this court’s jurisdiction.
Subsection 1724(h) does not specify a particular forum for judicial review of ONRR’s rejection
of BP’s monetary claims. The reference to the APA in Subparagraph 1724(h)(2)(B) provides the
standard of review, not the forum of review, a conclusion supported by the legislative history
and consistent with the statutory purpose. To find displacement here, the court would have to
adopt inferences lacking support from the statutory text or legislative history. But Tucker Act
displacement requires an unambiguous intent. E.g., Ruckelshaus, 467 U.S. at 1017; Acceptance
Ins., 503 F.3d at 1336-37. Absent express intent to displace the Tucker Act and without a need
to do so to effectuate the statutory remedial scheme, the court has no basis to infer that
invocation of the APA does anything more than establish the standard for judicial review.
Accordingly, so long as the claims arise under the Tucker Act by invoking a money-mandating
statute, a contract, or the Constitution, this court continues to have jurisdiction over a lessee’s
monetary refund claims following the amendments wrought by the Royalty Simplification Act.

       3. Accrual of the claims and application of statute of limitations.

         The government argues that even if jurisdiction is proper under the Tucker Act, BP’s
claims are time-barred by the six-year statute of limitations applicable to claims before this court
under 28 U.S.C. § 2501. Def.’s Mot. at 18. While the government raises this statute of
limitation for only BP’s contract claim (Count III), Def.’s Mot. at 18-20, BP’s claims invoke
only different theories for the same relief requested, and accordingly the court’s analysis does
not distinguish between the legal theories to analyze whether any of BP’s claims are barred by
the statute of limitations. Moreover, the relevance of the specific limitation periods in the
Royalty Management Act, see supra, at 4-5 & nn. 3-4, bears on the court’s analysis. Because BP
filed its claim on July 6, 2018, the government contends that claims before July 6, 2012 are
untimely. Id. at 20. BP’s claims relate to overpayments made between January 2004 and
December 2007. BP argues that because the Royalty Management Act specifies mandatory
administrative remedies, its claims did not accrue until final agency action, which occurred in
June 2018. Pl.’s Opp’n at 12-13.

        A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. The six-year statute of limitations is jurisdictional
and is not susceptible to equitable tolling or any of the other doctrines that would excuse an

the agency fails to act within 33 months. Id. § 4, 110 Stat. at 1704-10 (codified at 30 U.S.C. §
1724). Section 5 added Section 1721a in its entirety, which established the process for lessees to
make adjustments to incorrect payments and request refunds of overpayments. Id. § 5, 110 Stat.
at 1710-12 (codified at 30 U.S.C. § 1721a). Section 6 added the subsequently repealed
provisions governing payment to lessees of interest on overpayments, and revised methods for
paying royalties and allocating production and royalty liability among lessees. Id. § 6, 110 Stat.
at 1710-15 (codified at 30 U.S.C. § 1721). Section 7 allowed for prepayment and regulatory
relief for lessees of marginally producing properties. Id. § 7, 110 Stat. at 1715-16 (codified at 30
U.S.C. § 1721). The remaining sections included a statement that two provisions, including the
original statute of limitations, were no longer applicable given other amendments, exempted
leases on Indian or private lands from these amendments, established an effective date, and
explicitly stated that no property right or interest arose with a state against any Federal lease or
land. Id. §§ 8-12, 110 Stat. at 1717 (codified at 30 U.S.C. §§ 1701, 1732).
                                                 19
untimely claim. See John R. Sand & Gravel Co., 552 U.S. at 134. Yet, Congress can always
carve out exceptions by statute, U.S. Const. Art. I § 8, Art. III § 2, and a “remedy furnished by
statute preempts a more general remedy,” e.g., Shearin, 992 F.2d at 1196. And “if a dispute is
subject to mandatory administrative proceedings, the plaintiff’s claim does not accrue until the
conclusion of those proceedings.” E.g., Martinez, 333 F.3d at 1304.

        BP’s refund claim was subject to the mandatory administrative proceedings of the
Royalty Management Act. That process commences with a refund request made either within
six years of the obligation becoming fixed or during an audit, can be appealed though
administrative procedures, and can be followed by judicial review contingent upon either final
agency action or 33 months elapsing since requesting the refund. See 30 U.S.C. §§ 1721a, 1724.
Judicial review could be had within seven years of the obligation becoming fixed, although this
seven-year period could be tolled or terminated early. See id. § 1724(b), (d), (e), (h). Further,
judicial review of an obligation more than of seven years old is timely if sought within 180 days
of notice of final agency action. See id. § 1724(j).

        BP complied with the statutory requirements to seek judicial review within 180 days of
notification of final agency action, having been notified on June 21, 2018 of the dismissal of its
appeal due to the agency’s inaction, and then having filed its complaint on July 6, 2018. Specific
to BP’s contract claim, the claim accrued not when either parties’ royalty obligations became
fixed, but when the alleged breach occured. To the extent a breach occurred, it would have
occurred when ONRR denied BP its refund and interest, which given the mandatory
administrative remedies, also occurred upon the final agency action. To the extent a taking of
interest occurred, it too would have accrued upon the final agency action that refused interest that
had accrued at the time of BP’s requests.

                             B. Whether the Court Can Grant Relief

         Separate from its argument about statute of limitations, the government contends that BP
fails to allege sufficient facts to show that the leases or tolling agreements contained terms that
entitled BP to a refund of overpayments or interest. Def.’s Mot. at 21-22. The government
accordingly seeks to dismiss Counts III and IV, but not Counts I and II, for failure to state a
claim upon which relief can be granted. See id. at 25 (arguing that the court should dismiss the
complaint for lack of jurisdiction, “or, in the alternative, dismiss Count III for failure to state a
claim upon which relief may be granted.”).

       1. Count III: contract theory for refund and interest claimed.

        Count III repackages the refund and interest claims of Counts I and II under a contract
theory. See Compl. ¶¶ 45-47. It is undisputed that BP executed leases and tolling agreements
with the government. BP alleges that pursuant to these contracts, it is entitled to pay no more
than the royalty it actually owed. Compl. ¶¶ 1, 45-48. BP’s underlying claim is plausible, given
the facts and statutory obligations. Even so, the court cannot independently grant relief to BP
under this theory in light of the remedial scheme, which delineates the type of relief BP may seek
and the process by which it may claim that relief. See 30 U.S.C. §§ 1721, 1721a, 1724; see also
Bormes, 568 U.S. at 13-14 (“We have long recognized that an additional remedy in the Court of
Claims is foreclosed when it contradicts the limits of a precise remedial scheme. . . . Where a

                                                 20
specific statutory scheme provides the accoutrements of a judicial action, the metes and bounds
of the liability Congress intended to create can only be divined from the text of the statute
itself.”); see also Alpine PCS, 878 F.3d at 1093-94. The statutory relief covers the entirety of
BP’s claims.

        BP defends the claim by invoking several cases in which new statutes that prevented the
government from adhering to oil and gas lease terms gave rise to cognizable contract claims.
Pl.’s Opp’n at 11 & n.7 (citing, among others, Mobil Oil Expl. & Prod. SE., Inc. v. United States,
530 U.S. 604 (2000); Amber Res. Co. v. United States, 538 F.3d 1358 (Fed. Cir. 2008)). Yet,
these cases address jurisdiction and not whether an independent contract claim can survive a
remedial scheme that specifies remedies. Further, to the extent that a new statute precluded
adherence to contract terms, that new statute here would be the FAST Act, and thus only apply to
BP’s claim for interest on overpayments. The interest entitlement, however, was a statutory
creation, and BP has not alleged sufficient facts to assert it was entitled to interest independent
from the terms of 30 U.S.C. § 1721. Because BP does not allege it was owed interest pursuant to
contract terms, BP has not plausibly alleged the FAST Act breached its contract. Count III
consequently must be dismissed for failure to state a claim.

       2. Count IV: Fifth Amendment taking of interest.

        Count IV presents BP’s interest claim as a Fifth Amendment Takings claim. Compl. ¶
52-55. The government contends that because BP “exclusively relies on a statutory entitlement,”
no property interest exists. Def.’s Mot. at 23. BP counters that it alleged a property right and
that a dispute over a property interest is not fatal to the claim at the pleadings stage. Pl.’s Opp’n
at 14. In effect, the government seeks to dismiss Count IV for lack of jurisdiction.

         The court has jurisdiction over takings claims and BP alleges a property right in interest
on its overpayment. Whether BP has a property right in the interest presents questions of law
and fact, but not ones of this court’s jurisdiction. See Jan’s Helicopter Serv., 525 F.3d at 1309
(“In determining whether the Court of Federal Claims has jurisdiction, all that is required is a
determination that the claim is founded upon a money-mandating source and the plaintiff has
made a nonfrivolous allegation that it is within the class of plaintiffs entitled to recover under the
money-mandating source. There is no further jurisdictional requirement that the court determine
whether the additional allegations of the complaint state a nonfrivolous claim on the merits.”).
Accordingly, the court addresses the government’s argument as alleging that BP has failed to
state a claim upon which relief can be granted. Pl.’s Opp’n at 14-15.

        “[N]o statutory obligation to pay money . . . can create a property interest within the
meaning of the Takings Clause.” Adams v. United States, 391 F.3d 1212, 1225 (Fed. Cir. 2004).
Nevertheless, a property interest has been found to exist in interest that has accrued on a
claimant’s principal. See Phillips v. Washington Legal Found., 524 U.S. 157, 166-69 (1998)
(finding that interest accrued on the principal in a trust account constituted private property of
the owner of the principal). In distinguishing a statutory entitlement that creates a property
interest from one that does not, the Federal Circuit noted the difference between “an actual sum
of money representing interest derived from ownership of particular deposits in an established
account, as opposed to some abstract sum of money capable of being calculated.” Adams, 391
F.3d at 1225. The “lack of immediate right [to deposited funds] does not automatically bar a

                                                 21
claimant ultimately determined to be entitled to all or a share of the fund from claiming a proper
share of the interest . . . that is realized in the interim.” Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 161-62 (1980).

        In this instance, BP’s claim to a property right in interest may be distinct from a monetary
entitlement pursuant to statute, and BP may have stated a plausible claim for relief under the
Takings Clause if the FAST Act does have retroactive effect.17 It is undisputed that BP overpaid
royalties. Compl. ¶¶ 14, 18, 28, Ex. 1 at 10-11, 16. Under the Royalty Management Act prior to
amendment by the FAST Act, interest began to accrue from the date of overpayment. See 30
U.S.C. § 1721(h) (2012). Interest accrued on the overpayment principal until at least December
3, 2015, and, if final action had occurred by then, would have been paid to BP. BP’s entitlement
to interest is derivative from its overpayment. To the extent it has a property interest in the
overpayment principal, it may thus have a property interest in the overpayment interest as well.
Thus, BP can plausibly claim a property interest in what had already accrued to prior to
enactment of the FAST Act. Retroactive effect of the FAST Act may then have affected a
taking, having separated BP from part of its money. While BP’s overpayment is not held in an
account owned by BP, BP’s right to a refund of an overpayment seems more akin to a return of
BP’s property than to a statutory obligation to payment by the government. The Royalty
Management Act refers to overpayments as “principal,” e.g., 30 U.S.C. § 1702(25) (defining
“obligation” to include “any duty of the Secretary . . . to pay, refund, offset, or credit monies
including . . . the principal amount of any royalty . . . .”); see also 30 U.S.C. §§ 1721a(a)(2)(A),
1724(b)(1), 1724(h)(2), a characteristic that has distinguished a property interest from mere
obligations to pay, compare Phillips, 524 U.S. at 166-168, and Webb’s Fabulous Pharmacies,
449 U.S. at 160-62, with Adams, 391 F.3d at 1220-23. Further, a refund is not merely a statutory
right to payment, but a “return of an overpayment.” 30 U.S.C. § 1702(30) (emphasis added).

        The Federal Circuit rejected a similar argument in Getty Oil Co. v. United States, 767
F.2d 886 (Fed. Cir. 1985), but in light of the Royalty Simplification Act, that rationale may no
longer hold. Getty sued for approximately $364,000 in interest derived from approximately
$775,000 in overpaid royalties relating to offshore oil and gas leases. Id. at 887. Getty alleged
that the government’s use of its money for three years without paying interest constituted a
taking. Id. at 887-88. In rejecting Getty’s allegation, the court noted that “[w]hile Getty's
argument would make sense to any banker or economist, or even to the typical taxpayer, [the
court was] bound by judicial precedent and the Constitution; authorities that do not go so far as
Getty contends.” Id. at 888. Specifically, the court observed that no statutory or contractual
provision mandating interest on overpayments existed at that time, id. at 887, 889, and “Getty’s
payments were never put in a designated account where they specifically earned interest,” id. at
888. Also the specific statute under which Getty sued expressly barred paying interest, and “any
waiver of sovereign immunity must be strictly construed.” Id. at 889. Unlike Getty’s
overpayment, BP’s overpayment was earning interest until at least December 3, 2015, and
sovereign immunity had been waived until December 3, 2015.



       17
          If the FAST Act does not have retroactive effect, then BP’s remedy would be pursuant
to the terms of the Royalty Management Act.


                                                22
       Because the government’s obligation to pay interest arises from statute, Congress is free
to change the terms and cut off future liability. See, e.g., Marathon Oil v. United States, 374
F.3d 1123, 1126-27 (Fed. Cir. 2004) (discussing the no-interest rule absent express waiver of
sovereign immunity). Unlike the trust accounts in Phillips where the government took interest
for public use that had accrued to a depositor by an arrangement with a private bank, the
government here is the source of interest and can dictate the terms of future interest accrual.

        Whether BP has a property interest in interest that had accrued prior to enactment of the
FAST Act presents questions of law for which a decision is premature, especially since the
retroactive effect of the FAST Act remains undetermined. Accordingly, BP can maintain a
Takings claim for interest that had accrued up to enactment of the FAST Act, but not for interest
thereafter.

                                         CONCLUSION

        For the foregoing reasons, the court concludes that it has jurisdiction under the Royalty
Management Act to hear BP’s Tucker Act claims for a denied refund and interest on its
overpayments. The government’s motion to dismiss the complaint for lack of subject-matter
jurisdiction is DENIED.

         BP has provided sufficient legal and factual support to constitute a plausible claim for (1)
its refund and interest request under the money-mandating provisions of the Royalty
Management Act and (2) a taking of interest under the Fifth Amendment’s Takings Clause.
Even so, because the Royalty Management Act provides a remedial scheme and dictates
entitlement to interest on overpayments, BP’s independent contract claim set out in Count III
cannot survive and must be dismissed. Count IV may be maintained with respect to interest that
accrued up to December 3, 2015. Accordingly, the government’s motion to dismiss for failure to
state a claim is GRANTED in part and DENIED in part.

       The government shall file its answer to BP’s complaint by April 24, 2019.

       It is so ORDERED.



                                                      s/ Charles F. Lettow
                                                      Charles F. Lettow
                                                      Senior Judge




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