[00:00:00] Speaker 01:
argument is 20-1909 Taylor Energy Company versus Department of Interior.

[00:00:07] Speaker 01:
Mr. Ludman, whenever you're ready.

[00:00:10] Speaker 05:
May I please support Robert Ludman representing the Department of the Interior.

[00:00:14] Speaker 05:
The District Court's order transferring this case to the Court of Federal Claims should be reversed.

[00:00:20] Speaker 05:
As I will address after summarizing the background, the Court of Federal Claims here cannot provide an adequate remedy

[00:00:26] Speaker 05:
because it is bound by the decision of the Interior Board of Land Appeals or IVLA.

[00:00:31] Speaker 05:
And that decision directly rejected Taylor's claim for reimbursement, the same claim it's seeking review for in this case.

[00:00:39] Speaker 01:
Let me just record... Go ahead.

[00:00:42] Speaker 01:
I'm sorry.

[00:00:43] Speaker 01:
Thank you.

[00:00:44] Speaker 01:
Just two preliminary questions.

[00:00:47] Speaker 01:
One, does

[00:00:48] Speaker 01:
The way things went down here, do you think that was a function?

[00:00:51] Speaker 01:
It's my understanding that the other side did what it did, and the district court ruled before it had the benefit of what our court said in the other Taylor case.

[00:01:04] Speaker 01:
Do you think that had something to do with it?

[00:01:07] Speaker 01:
That's right.

[00:01:08] Speaker 05:
The district court ruling here was before the September decision from this court, which I think makes the answer even clearer on adequate remedy.

[00:01:17] Speaker 01:
Now, let me move on, so I'll get to Judge O'Malley in a moment, but is it your contention that the CFC lacks jurisdiction over Taylor's claim, or is it that the CFC has jurisdiction, but given this IBLA decision, the CFC was unable to give relief on Taylor's claim?

[00:01:37] Speaker 01:
In other words, if we were to proceed in the CFC in its current posture, is your argument that the CFC would have to dismiss on 12b1?

[00:01:47] Speaker 01:
or that it would inevitably have to dismiss on 12b6?

[00:01:51] Speaker 05:
Well, our argument is it's jurisdictional.

[00:01:54] Speaker 05:
And the reason is the adequate remedy prong of APA review has to be read together with the Tucker Act.

[00:02:03] Speaker 05:
And the case has to follow one or the other side of the line.

[00:02:06] Speaker 05:
And we think here the answer is because it's clear that there's no adequate remedy available in the Court of Federal Claims, the case only can be moved forward

[00:02:17] Speaker 05:
in the district court under the APA.

[00:02:21] Speaker 05:
And for example, this court's decision in suburban mortgage says when you're sorting out this sort of problem, you should start with adequate remedy.

[00:02:29] Speaker 05:
And that is thus part of the jurisdictional line that results.

[00:02:34] Speaker 05:
And it also flows from 5 USC 704 from the APA, which, you know, provides for judicial review

[00:02:42] Speaker 05:
in district court if there's no other adequate remedy in another court.

[00:02:46] Speaker 05:
And we think that reinforces that the line here is jurisdictional.

[00:02:51] Speaker 05:
At the end of the day, there's no practical reason to proceed in the CFC now.

[00:02:57] Speaker 05:
It doesn't make sense because the CFC can only do one thing.

[00:03:00] Speaker 05:
It can only say, as this court made clear in the September decision, that the IVLA decision is controlling.

[00:03:06] Speaker 05:
And it's very clear if you look at their complaint, Taylor Energy's complaint here,

[00:03:10] Speaker 05:
both the complaint they filed in district court on Appendix Page 13, and also the proposed complaint that they attached to their motion to transfer to Appendix 329, that what they're seeking here is a reversal of the IVLA decision.

[00:03:26] Speaker 05:
And that's just something the CFP can't do as a matter of its authority.

[00:03:30] Speaker 05:
And so the only way to proceed is in district court.

[00:03:34] Speaker 02:
Counsel, I understand that in the prior action,

[00:03:39] Speaker 02:
there was no actual appeal of the IBLA decision, which is, I guess, why the government decided not to argue a jurisdictional point in that earlier decision.

[00:03:49] Speaker 02:
What I never understood in the first case is why you didn't argue there that regardless of either the statute of limitations or the issue with respect to the governing law,

[00:04:05] Speaker 02:
why you didn't argue that it doesn't matter, that none of it matters, because the IBLA decisions have binding effect on related lawsuits before the claims court.

[00:04:17] Speaker 02:
Why shouldn't that have been the end of the inquiry in that case?

[00:04:21] Speaker 05:
Well, in the prior case, the September case, the split between the IBLA decision that occurred before their case

[00:04:29] Speaker 05:
and their legal claims was a little, I think, less clear and direct.

[00:04:33] Speaker 05:
Their claims were seeking a much broader remedy, ending the agreements, declaring them impossible under Louisiana state law.

[00:04:42] Speaker 05:
And that ran into lots of trouble and difficulty beyond simply the IDLA decision that was there.

[00:04:48] Speaker 05:
Here we have a perfect fit.

[00:04:52] Speaker 05:
You know, they're clearly seeking, the complaint is really clear on this, that they're seeking to reverse, set aside,

[00:04:58] Speaker 05:
declare arbitrary and capricious the IVLA decision.

[00:05:01] Speaker 05:
And they're seeking the return of the funds that the IVLA decision said, no, it should stay in the least specific abandonment account and not be returned to you.

[00:05:09] Speaker 05:
And so there's no gap here between their claim and the IVLA decision.

[00:05:17] Speaker 05:
It's addressing the very same issue, and they're seeking here to undo it.

[00:05:22] Speaker 05:
And so that's why I think the adequate revenue point here is dispositive jurisdictionally,

[00:05:28] Speaker 05:
But also just if you step back and look at this as a practical matter, there's no point in going forward in the CFC when the only thing that court can do is dismiss and then maybe they appeal and then maybe it gets back to district court and that takes a lot of time and doesn't make any sense.

[00:05:45] Speaker 02:
You know, the district court here... How long was the motion to transfer pending before the district court?

[00:05:53] Speaker 05:
I don't recall.

[00:05:54] Speaker 05:
It was...

[00:05:56] Speaker 05:
It was decided fairly quickly.

[00:05:58] Speaker 05:
I can look... I don't actually remember for sure, but it was definitely decided before this court's September decision.

[00:06:04] Speaker 05:
This appeal picked up before then, and the September decision came out right before we filed our opening brief in this appeal.

[00:06:11] Speaker 05:
Okay.

[00:06:14] Speaker 05:
I can double-check that for rebuttal.

[00:06:16] Speaker 02:
Okay.

[00:06:16] Speaker 05:
Thank you.

[00:06:17] Speaker 05:
Counsel?

[00:06:19] Speaker 04:
Yes.

[00:06:22] Speaker 04:
Counsel, Judge Plager here.

[00:06:25] Speaker 04:
Unpuzzled as...

[00:06:27] Speaker 04:
as we discussed a little bit, why the government in the earlier case, September 3rd case, why the government had not argued jurisdiction in that case.

[00:06:43] Speaker 04:
It seems to me there clearly was an issue with the I.B.L.A.

[00:06:49] Speaker 04:
and the argument you're now making, it seems to me,

[00:06:54] Speaker 04:
is equally applicable to that case, but the government never, in fact, neither party ever raised a question of jurisdiction.

[00:07:04] Speaker 04:
What am I to make of that?

[00:07:08] Speaker 05:
Well, I think the government did, in the CFD in that case, raise the issue of jurisdiction.

[00:07:14] Speaker 05:
But the reason I think it's not in the exact same posture as here and not as particularly as clear as this case is,

[00:07:23] Speaker 05:
is that there is, you know, they had broader claims about impossibility and the possibility of the performance of the contract that were based on Louisiana state law that this court rejected and said, no, this is a federal law question and federal law applies to it.

[00:07:43] Speaker 02:
And so I think- Isn't the better answer, counsel, that there wasn't, it was not an appeal from IBLA?

[00:07:50] Speaker 05:
And that's the other, yes.

[00:07:51] Speaker 02:
And the only thing you could have argued was that IBLA decision should have been considered binding regardless of whether it was an actual appeal from the IBLA.

[00:08:03] Speaker 05:
Right.

[00:08:04] Speaker 05:
The connection here is clear that this is seeking review of the IBLA decision.

[00:08:10] Speaker 05:
And so that goes then directly to adequate remedy.

[00:08:13] Speaker 05:
And it's clear here then there.

[00:08:18] Speaker 05:
You know, the district court here, it's one rationale for granting the transfer motion was that the fact that the CFC dismissed on a non-jurisdictional theory means that it must have ruled that it had jurisdiction.

[00:08:33] Speaker 05:
But as we cite in our brief that, you know, this court's decision, National Cable Television Association, and many others, it's clear that you can't treat this presidential as something a court hasn't said.

[00:08:44] Speaker 05:
So here, there was no statement about that issue.

[00:08:48] Speaker 05:
And there's nothing presidential in that opinion or in this court's September opinion, except for the fact that this court makes it very clear that the IBLA decision is controlling absent APA reversal in the district court.

[00:09:03] Speaker 05:
And so that's the avenue here Taylor Energy should be pursuing.

[00:09:07] Speaker 05:
In this case, should be remanded to them to do so.

[00:09:12] Speaker 05:
I haven't mentioned Bowen versus Massachusetts.

[00:09:14] Speaker 05:
That's our alternative ground for reversal here.

[00:09:18] Speaker 05:
We think adequate remedy is first easier and more direct.

[00:09:21] Speaker 05:
In any event, this isn't a pure monetary damages case, but they're seeking the return of specific monies from their least specific abandonment account.

[00:09:30] Speaker 05:
And the parties have, you know, a complex and ongoing relationship, as one can imagine, between the federal government and the private parties.

[00:09:38] Speaker 02:
Do we need to get into Bowen?

[00:09:39] Speaker 02:
I mean, Bowen is kind of a

[00:09:42] Speaker 02:
kind of a controversial case, and it's also very confusing.

[00:09:47] Speaker 02:
Right.

[00:09:47] Speaker 02:
I agree with that.

[00:09:49] Speaker 05:
No, you do not need to get into Bowen.

[00:09:51] Speaker 05:
I just want to mention it in case there are any questions for me about it.

[00:09:55] Speaker 05:
But I think you don't need to get into it.

[00:09:57] Speaker 05:
An adequate remedy here is easier and largely answered by the September 2020 decision.

[00:10:03] Speaker 02:
Right.

[00:10:04] Speaker 02:
And, you know, even the statute says that there's only one court

[00:10:10] Speaker 02:
that has jurisdiction over these IBLA appeals, right?

[00:10:15] Speaker 05:
Well, that's what we say the effect of the APA is 704 says if there's no adequate remedy, then the APA district court proceeding is the only option.

[00:10:28] Speaker 05:
Okay.

[00:10:31] Speaker 05:
So unless the court has further questions, I will

[00:10:36] Speaker 05:
I'll be back on rebuttal and answer the panel's question about the timing of the transition motion.

[00:10:41] Speaker 02:
Thank you.

[00:10:41] Speaker 02:
I think I found it in the record.

[00:10:43] Speaker 02:
Never mind.

[00:10:44] Speaker 02:
OK, thanks.

[00:10:45] Speaker 02:
It was pending for about a year.

[00:10:48] Speaker 02:
OK.

[00:10:48] Speaker 02:
OK.

[00:10:49] Speaker 01:
Thank you.

[00:10:50] Speaker 01:
Mr. Rosenwald.

[00:10:53] Speaker 03:
Thank you, Your Honor.

[00:10:54] Speaker 03:
Your Honor, the issue here is straightforward and incredibly narrow.

[00:10:59] Speaker 03:
It's simply whether Taylor Energy's contract claims that seek specific monetary relief

[00:11:06] Speaker 03:
should be before the Court of Federal Claims.

[00:11:08] Speaker 03:
We would suggest both the Griffin Exploration case, the Suburban Mortgage case, the Mitchell case.

[00:11:16] Speaker 04:
Mr. Rosenbloom, it's all very interesting.

[00:11:20] Speaker 04:
You're actually arguing the earlier case.

[00:11:23] Speaker 04:
Let's deal with this case.

[00:11:25] Speaker 04:
Let me call your attention.

[00:11:27] Speaker 04:
This is Judge Plager.

[00:11:29] Speaker 04:
Let me call your attention to page two of your brief, right?

[00:11:35] Speaker 04:
And on page two you say, Taylor Energy kindly appealed Interior's decisions to the Interior Board of Land Appeals, IBLA, Appendix 12.

[00:11:52] Speaker 04:
Both decisions were subsequently affirmed by the IBLA relying upon contract construction principles in adjudicating contract disputes.

[00:12:02] Speaker 04:
Taylor Energy then filed this action.

[00:12:06] Speaker 04:
in the United States District Court for the Eastern District of Louisiana against Interior and BOEM, referred to as the Federal Seeking Judicial Review of the IBLA decision under the Administrative Procedure Act.

[00:12:26] Speaker 04:
Is that your brief that I'm reading from?

[00:12:31] Speaker 03:
Yes, Your Honor, it certainly is.

[00:12:33] Speaker 04:
And I agree with you entirely.

[00:12:36] Speaker 04:
This case is simple and straightforward.

[00:12:39] Speaker 04:
You are seeking judicial review of the IBLA decision under the Administrative Procedure Act.

[00:12:46] Speaker 04:
Why are you talking about contract law?

[00:12:50] Speaker 03:
Your Honor, at the time that proceeding was filed, in December of 2018, neither Judge Firestone in the

[00:13:02] Speaker 03:
CDC, nor this court's affirmance, had decided the issue of subject matter jurisdiction.

[00:13:09] Speaker 03:
In fact, in front of Judge Firestone, the government raised, in that case, Judge Plager, three issues.

[00:13:15] Speaker 03:
One was the statute of limitations, one was the primary jurisdiction, and one was a monetary mandating issue.

[00:13:21] Speaker 03:
so that the 12B1 motion that was filed in front of Judge Firestone did address a subject matter issue, jurisdiction issue between the Tucker Act and the APA.

[00:13:32] Speaker 03:
And Judge Firestone obviously found that she had subject matter jurisdiction under the Tucker Act and granted the 12B6 motion.

[00:13:41] Speaker 03:
This court, with Judge O'Malley, affirmed Judge Firestone's decision, finding subject matter jurisdiction.

[00:13:49] Speaker 03:
It's very important, Judge Plager, to recognize that at the time that lawsuit was filed, we had not yet had the guidance.

[00:13:59] Speaker 03:
And as you recognize, Judge, in the suburban mortgage case, the line between Tuckarat jurisdiction and APA jurisdiction and whether the limitations in 702 and 704 apply is not always clear.

[00:14:13] Speaker 03:
So at the time we filed that suit...

[00:14:17] Speaker 04:
Council, it was clear before the Supreme Court's decision in Bowen, and since you have been kind enough to remember suburban mortgage, I pointed out in suburban mortgage that the way to look at these cases is to ask not where the money is or what the money is, but to simply ask what court has subject matter jurisdiction

[00:14:47] Speaker 04:
under the law.

[00:14:48] Speaker 04:
Now in the previous Taylor Energy Company case, the September 3rd case, that is not precedent.

[00:14:56] Speaker 04:
That is not precedent on anything in this current case.

[00:15:00] Speaker 04:
The reason it's not precedent on anything in this current case was the question of jurisdiction was never raised by either party so that the court had no reason to get itself into it.

[00:15:14] Speaker 04:
What the court decided

[00:15:16] Speaker 04:
was a contract issue.

[00:15:18] Speaker 04:
Was it a state contract or a federal contract?

[00:15:21] Speaker 04:
That case provides no precedent for this case, because on page two of your very own brief, you say you're seeking judicial review of the IBLA decision under the Administrative Procedure Act.

[00:15:40] Speaker 04:
That statute is totally controlling.

[00:15:42] Speaker 04:
I pointed that out in suburban.

[00:15:45] Speaker 04:
And I don't think there's any real question about it, is there?

[00:15:51] Speaker 03:
Judge Plager, let me address your question this way.

[00:15:56] Speaker 03:
Yeah.

[00:15:56] Speaker 03:
At the same time, Your Honor, that we filed that case in the Eastern District of Louisiana, we filed a case in the Court of Federal Claims because we were unclear.

[00:16:08] Speaker 03:
I'm sorry.

[00:16:10] Speaker 03:
Yeah, go ahead.

[00:16:11] Speaker 03:
because we were unclear as to whether or not the issue that had been teed up in front of the Court of Federal Claims, in front of Judge Firestone, on a 12B1 issue, how that issue was going to work out.

[00:16:24] Speaker 03:
This case coming out of a different IBLA decision, you know, recognizing that this case comes out of a decision that specifically talks about contract principles and specific provisions dealing with insurance offset and rig downtime.

[00:16:41] Speaker 03:
which, as opposing counsel recognized, the IBLA decision that was referred to in the Firestone opinion and as affirmed by this court by Judge O'Malley, that dealt with a regulatory departure.

[00:16:54] Speaker 03:
So that was... Wait, wait, wait, wait.

[00:16:56] Speaker 02:
Counsel, counsel, counsel.

[00:16:58] Speaker 02:
In the prior case, you did not appeal the IBLA decision.

[00:17:03] Speaker 02:
So this precise issue was not before the court, and the only argument that the government could have made, and should have made,

[00:17:11] Speaker 02:
was that even if you didn't appeal the IBLA decision, that IBLA decision was binding on both the Court of Federal Claims and on us.

[00:17:23] Speaker 02:
And at least as to any issues that were covered in the IBLA, that would have been true.

[00:17:29] Speaker 02:
So this is a totally different circumstance.

[00:17:33] Speaker 02:
We did not rule and say that the Court of Federal Claims would have

[00:17:38] Speaker 02:
jurisdiction over an IBLA appeal, we couldn't have said that.

[00:17:43] Speaker 03:
Judge, I agree with you.

[00:17:45] Speaker 03:
This is a very different case on the merits.

[00:17:48] Speaker 03:
But in terms of jurisdiction, since that IBLA opinion that dealt with a regulatory departure, as you point out, was not appealed, that was not before Judge Firestone.

[00:18:02] Speaker 03:
But what we have here, Your Honor, is a situation where you look at what the IBLA did.

[00:18:08] Speaker 03:
And we would suggest on the 702 and 704 of the Administrative Procedure Act and those limitations, there is not a special rule dealing with final agency actions coming out of the IBLA.

[00:18:20] Speaker 03:
They treat all administrative agency actions the same under... We would also point out that both

[00:18:27] Speaker 03:
The Griffin expiration case, and I understand it's coming out of the Federal Fifth Circuit, the Amoco case, both of those cases did deal with IBLA decisions.

[00:18:38] Speaker 03:
So the suggestion with all respect, Your Honor, that this court or the Court of Federal Claims has to blindly accept what the IBLA does, it really depends as to what is the issue before the IBLA.

[00:18:53] Speaker 03:
If it deals with a contract issue, which is what we're talking about here, then you look at, as between the APA and the Tucker Act, with the limitations to 702 and 704, and Judge Plager, your suburban mortgage opinion helps me crystallize the issue after reading both.

[00:19:14] Speaker 03:
that when you look at the underlying claims and the suggestion that Taylor Energy is seeking more than what the courts have called a naked monetary judgment in this case,

[00:19:26] Speaker 03:
is simply not true.

[00:19:27] Speaker 03:
If you look at paragraphs 9, 38, and more importantly, I guess, the wherefore clause in the proposed amended complaint, we specifically ask for monetary damages.

[00:19:38] Speaker 03:
It is very narrow.

[00:19:39] Speaker 03:
It's not a long-term change.

[00:19:41] Speaker 02:
It deals with specific... But why would you want to be... Why would you want to be in a court that is bound on the merits by what the Iblis decision says?

[00:19:53] Speaker 04:
Yeah, let's let's pursue that question.

[00:19:57] Speaker 03:
All right.

[00:19:57] Speaker 03:
Let me let me respond this way.

[00:19:59] Speaker 04:
And let me give you a hypothetical.

[00:20:02] Speaker 04:
The hypothetical is Judge Plager is now on the CFC and you are before me in your case and you say you want money back.

[00:20:15] Speaker 04:
Right.

[00:20:16] Speaker 04:
And I say to you, well, wait a minute, wasn't there a decision by an agency that decided that very question, and is that not before me?

[00:20:30] Speaker 04:
And what's your answer to that?

[00:20:33] Speaker 03:
The IBLA decision that addressed that specific issue relied itself, in the opinion, on contract construction principles.

[00:20:42] Speaker 03:
When he did that, recognizing that the narrow relief that was sought in that proceeding, that I would suggest to you that the Court of Federal Claims, number one, not only has proper Tucker Act jurisdiction, but number two, must look at the underlying substance of the claim.

[00:21:02] Speaker 03:
You pointed that out in suburban mortgage.

[00:21:04] Speaker 03:
You've got to look at exactly what is being sought in the complaint.

[00:21:08] Speaker 03:
In the complaint, we are seeking, in this case, very targeted, specific relief coming out of what we suggest, on the merits, Judge, is the IBLAs improper interpretation.

[00:21:20] Speaker 03:
But that's really for the merits.

[00:21:25] Speaker 03:
The Griffin case indicated that those bootstrap issues, from my perspective, Your Honor, is really a merits issue.

[00:21:32] Speaker 03:
We will point out when we're in front of the Court of Federal Claims why it is that the IBA decision dealing with this issue on contract issues does not need to be blindly followed by the Court of Federal Claims.

[00:21:47] Speaker 03:
I'm not sure, Your Honor, if it was Judge O'Malley or Judge Post because I wear hearing aids, but I would like to respond to the question of why would I want to be back in front of the Court of Federal Claims since I already had an unhappy result there.

[00:22:04] Speaker 03:
The answer is very simply, this dispute needs to be in front of a court that has proper subject matter jurisdiction.

[00:22:12] Speaker 03:
If we do it in the Eastern District down here, particularly with the Amico opinion, and now with the other decision of this case recognizing, I understand Your Honor's point is that Judge Firestone and in the other opinion, a different panel in this court didn't specifically go to subject matter jurisdiction, but we would suggest under the Sino-Cam case and a number of Supreme Court cases,

[00:22:41] Speaker 03:
In order to get to a 12b6 issue, you have to already recognize that there is subject matter jurisdiction.

[00:22:48] Speaker 03:
We would suggest, by the way, Your Honor, even if you didn't have that prior case, when you look at the limitations in the APA under 702 and 704,

[00:22:59] Speaker 03:
and you look at what the claim is here, you look at what the IBLA did in its decision based upon contract construction principles.

[00:23:08] Speaker 03:
We would suggest that the other case may be a closer question.

[00:23:13] Speaker 03:
This case, with the IBLA's contract construction principles clear as a bell.

[00:23:18] Speaker 03:
And remember, we have two IBLA decisions, one day apart, written by the same IBLA judge.

[00:23:24] Speaker 03:
One dealt with a regulatory departure issue, which we would suggest is an APA issue.

[00:23:30] Speaker 03:
But this case, dealing with contract construction principles, with the insurance offset provision, with the rig downtime provision, provisions that are not reliant upon any regulatory scheme, it's a much narrower, more targeted case, which is why here, Taylor Energy certainly wants to make sure wherever it has its day in court, Your Honor,

[00:23:54] Speaker 03:
It has to stay in a court, in a court that has proper subject matter jurisdiction.

[00:24:00] Speaker 04:
Um, I'm not sure exactly.

[00:24:06] Speaker 04:
I have one more question for you.

[00:24:08] Speaker 04:
What would you expect this court to do if you were able to get before the court of federal claims and the court of federal claims on contract principles, uh, held for you?

[00:24:21] Speaker 04:
and ruled that the I.B.L.A.

[00:24:24] Speaker 04:
decision was erroneous and that on those contracts, you are correct.

[00:24:31] Speaker 04:
What would you think we would have to do in that case?

[00:24:36] Speaker 03:
Assuming the government would appeal.

[00:24:38] Speaker 03:
Yep.

[00:24:40] Speaker 03:
And, Judge Flager, I'm not clear.

[00:24:42] Speaker 03:
Are you asking what would you have to do on the jurisdictional issue?

[00:24:45] Speaker 00:
Yeah.

[00:24:46] Speaker 03:
On the jurisdiction issue, we would suggest it would be very simple.

[00:24:50] Speaker 03:
You look at 702-704, and we believe the adequate remedy, we're seeking a very targeted remedy here.

[00:25:00] Speaker 03:
The complaint as proposed to be amended is seeking monetary damages.

[00:25:05] Speaker 03:
It therefore takes it out of APA jurisdiction, and there is clear Tucker Act jurisdiction, and as I think you pointed out in suburban mortgage,

[00:25:16] Speaker 03:
Sometimes there is an overlap between the two statutes, but the Tucker Act says that it is exclusive.

[00:25:24] Speaker 03:
So if there is an overlap with the legal test for jurisdiction, the Tucker Act prevails.

[00:25:30] Speaker 03:
And Congress obviously passed the Tucker Act to make sure that the Court of Federal Claims can address all of these types of contracts

[00:25:39] Speaker 03:
disputes between private litigants and the government.

[00:25:42] Speaker 03:
When you look at the IBLA decision that is at issue in this case, not the one in the other case that dealt with regulatory issues, but in this case, when you see that the IBLA itself relied upon contract construction principles

[00:26:01] Speaker 03:
We would suggest this court clearly would have jurisdiction to affirm Taylor Energy prevailing at the Court of Federal Claims, Judge Plager.

[00:26:09] Speaker 03:
And I think I heard my time is up.

[00:26:14] Speaker 01:
Thank you.

[00:26:15] Speaker 03:
Thank you very much.

[00:26:21] Speaker 01:
Mr. Lundman.

[00:26:24] Speaker 05:
Yes, so three points.

[00:26:27] Speaker 05:
First, in response to Judge O'Malley's question on timing, just really briefly, it was about a year.

[00:26:31] Speaker 05:
In the meantime, in the middle of that time, the case was reassigned from one district court judge to another, which may explain slightly the delay.

[00:26:39] Speaker 05:
Second, about the IVLA decision, it's the same issue that they're seeking judicial review for here.

[00:26:45] Speaker 05:
And if you look at their proposed amendment complaint that Taylor Energy cited,

[00:26:51] Speaker 05:
In Appendix 329, it's not just money damages.

[00:26:55] Speaker 05:
I'm quoting, wherefore this court should reverse, set aside, and vacate the IBLA decision, affirming BOEF's 2009 and 2011 decisions, end quote.

[00:27:07] Speaker 05:
So it's still seeking the same relief.

[00:27:09] Speaker 02:
Can you address the Amico case?

[00:27:12] Speaker 05:
Sure.

[00:27:12] Speaker 05:
Amico does not say anything about adequate remedy.

[00:27:16] Speaker 05:
So to the extent the court thinks that's the right way to resolve this case, then

[00:27:19] Speaker 05:
There's nothing in amico on adequate remedy, and that alone means it doesn't... Is it your point that the amico decision was wrongly decided because it didn't address that question?

[00:27:31] Speaker 05:
Well, it predates... It's an older case that predates Bowen, and this court's subsequent case is applying and interpreting Bowen.

[00:27:40] Speaker 05:
And so I'm not sure it got it wrong.

[00:27:43] Speaker 05:
It was working in a different era, I guess, of deciding when a case fits under the APA and the Tucker Act.

[00:27:49] Speaker 05:
The second major distinction is that case concerned under OCFLA a money mandating duty, so payments of royalties.

[00:27:59] Speaker 05:
It wasn't a regulatory duty, and that's what we have here is a decommissioning obligation that underlines Taylor's duties here.

[00:28:08] Speaker 05:
And that's the other point I wanted to mention about the IVLA decision and Interior's decisions here.

[00:28:14] Speaker 05:
It's not just contractual law.

[00:28:17] Speaker 05:
It is in the context of Taylor's obligation to decommission this site.

[00:28:23] Speaker 05:
And the decommissioning obligation then, as applied through these agreements, ensures that funds are available over time to make sure that all the decommissioning takes place.

[00:28:35] Speaker 05:
So it's a regulatory requirement, not just a money-mandating duty.

[00:28:40] Speaker 05:
And that's the same issue with Griffin that opposing counsel mentioned.

[00:28:44] Speaker 05:
Again, nothing about adequate remedy there.

[00:28:46] Speaker 05:
And that case makes clear that, as well, that there is no conflict between the breach of conflict claim and the IBLA decision.

[00:28:57] Speaker 05:
While here, the breach of contract claim is essentially the IBLA erred and got it wrong.

[00:29:02] Speaker 05:
And so it really is an APA district court claim rather than a Tucker Act claim.

[00:29:07] Speaker 04:
Mr. London, a quick question for you.

[00:29:11] Speaker 04:
Is it your view

[00:29:13] Speaker 04:
that if this case was before the district court under the APA, and the question was initially, what about the IBLA decision?

[00:29:27] Speaker 04:
Let's assume the district court overturns the IBLA decision for whatever reasons.

[00:29:33] Speaker 04:
Is the district court empowered under the APA to render a money judgment as a result of that case?

[00:29:44] Speaker 05:
I think the district court's remedies would be to set aside and reverse the IVLA decision, and then it has its injunctive authority to order the agency to take action that's consistent with the law.

[00:29:58] Speaker 01:
And that action would be disbursing the funds?

[00:30:03] Speaker 05:
It could order that.

[00:30:04] Speaker 05:
Now, I don't want to say that's the default remedy if it's a procedural error or a

[00:30:09] Speaker 05:
or that can be fixed and remand by the agency, well then the agency should, under the APA, has the chance to fix that.

[00:30:16] Speaker 05:
But let's say that it's possible.

[00:30:20] Speaker 04:
Mr. Lundman, the question is, could, under appropriate circumstances, the district court make a money award?

[00:30:30] Speaker 05:
Under appropriate circumstances, I think the best answer I could give is the district court could order the agency to disperse the exact funds in the amount Taylor is seeking.

[00:30:39] Speaker 05:
Yes.

[00:30:41] Speaker 05:
Thank you.

[00:30:42] Speaker 05:
It couldn't award damages out of the U.S.

[00:30:43] Speaker 05:
Treasury.

[00:30:45] Speaker 05:
That's not what Taylor's asked before in his complaints here.

[00:30:47] Speaker 05:
So unless the court has anything further, we ask that you reverse.

[00:30:53] Speaker 01:
Anything further, colleagues?

[00:30:55] Speaker 01:
Hearing none, thank you.

[00:30:57] Speaker 01:
We thank both counsel and the cases submitted.

[00:30:59] Speaker 01:
Thank you.

[00:31:00] Speaker 01:
Thank you.

[00:31:02] Speaker 01:
The Honorable Court is adjourned from day to day.