author: RANDOLPH, Senior Circuit Judge:

text:
    PRISOLOGY, INC., Appellant v. FEDERAL BUREAU OF PRISONS, Appellee
    No. 15-5003
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 6, 2016
    Decided April 4, 2017

      Zachary Lee Newland argued the cause for appellant. On the briefs were Jeremy B. Gordon, Waxahachie, TX, and Joseph Fierros, Student Counsel.
    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellee. On the brief were R. Craig Lawrence, Assistant U.S. Attorney, and Peter R. Maier, Special Assistant U.S. Attorney. Eric J. Young, Special Assistant U.S. Attorney, entered an appearance.
    Before: MILLETT, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.
   RANDOLPH, Senior Circuit Judge:

Prisology, Inc., a nonprofit organization devoted to criminal justice reform brought an action claiming that the Federal Bureau of Prisons had not complied with 5 U.S.C. § 552(a)(2) of the Freedom of Information Act (FOIA). The district court dismissed the complaint on the ground that Prisology lacked standing.

Section 552(a)(2) requires federal agencies to make the following types of records electronically available to the public:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the public.

Prisology’s two and one-half page complaint began with a brief description of § 552 and of the Bureau of Prisons’ alleged non-compliance with the statute. Complaint ¶ 1, Prisology v. Federal Bureau of Prisons, 74 F.Supp.3d 88 (D.D.C. 2014) (No. 14-0969 (ABJ)). Paragraphs 2 through 5 of the complaint then identified the parties, invoked jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(2), and quoted FOIA § 552(a)(2). Paragraph 6 of the complaint repeated the general charge that the Bureau of Prisons had not complied with § 552(a)(2) and paragraph 7 gave as examples the Bureau’s failure to make available electronically: “(1) responses to administrative remedy requests and appeals from each BOP institution, Regional Office, and the BOP’s Central Office; (2) private settlements outside of litigation between the BOP and its employees, inmates, and other persons; (3) grants and denials of requests for compassionate release; (4) all settlements, compromises, and rejections of claims made pursuant to the Federal Tort Claims Act and Inmate Accident Compensation Program; and (5) Disciplinary Hearing Officer reports reflecting agency adjudication of serious prison disciplinary charges.” The complaint ended with a prayer for relief in the form of a declaratory judgment and an injunction under the Administrative Procedure Act, 5 U.S.C. § 706, “requiring the BOP to make the paragraph 7 records that were created on or after November 1, 1996, available via computer telecommunications means.” Complaint ¶ 8.

The government, taking note of Prisolo-gy’s failure to allege any injury to itself, filed a Rule 12(b)(1) motion to dismiss the complaint for lack of jurisdiction. The district court relied on several Supreme Court opinions, including Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), to hold that Prisology did not have Article III standing because it had “failed to point to any injuries sustained, by the organization itself or by its members, as a result of the defendant’s conduct.” Prisology, 74 F.Supp.3d at 95.

While this case was pending on appeal, our court decided Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice, 846 F.3d 1235 (D.C. Cir. 2017). The court held that the Administrative Procedure Act could not be invoked to remedy an alleged violation of FOIA § 552(a)(2). Id. at 1246. Prisology described its complaint as having been “brought pursuant to” the Administrative Procedure Act, Appellant Br. at 6 n.1, which seems to bring the case within the holding of Citizens for Responsibility. But before we may decide whether Prisology has stated a cause of action under the Administrative Procedure Act, we must determine that Prisology has Article III standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); see also Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010).

Many years ago Justice Frankfurter described the standing doctrine as a “complicated specialty of federal jurisdiction, the solution of whose problems is ... more or less determined by the specific circumstances of individual situations.... ” United States ex rel. Chapman v. Fed. Power Comm’n, 345 U.S. 153, 156, 73 S.Ct. 609, 97 L.Ed. 918 (1953). Complicated or not, the Supreme Court has made clear that in a suit against the government, it is the plaintiffs burden to satisfy Article III by setting forth at least “general factual allegations of injury” at the pleading stage. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. It is certain as well that “injury in fact” is one of the “irreducible constitutional” requirements of standing and that the injury must be “concrete and particularized.” Id. at 560, 112 S.Ct. 2130 (internal quotation omitted). And so a plaintiff alleging harm common to “every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.” Id. at 573-74, 112 S.Ct. 2130.

Prisology’s complaint contains no allegation of injury, general or otherwise. Even if we inferred an injury to Prisology from the Bureau’s alleged failure to publish its records electronically, this would not differentiate Prisology from the public at large. All that inference would reveal is a harm common to everyone, a harm of the sort Lujan described as not stating an Article III case or controversy.

Prisology tries to fit itself within cases litigated under FOIA § 552(a)(3). This provision requires an agency to make nonexempt records (other than those made available under FOIA §§ 552(a)(1) & (2)) “available to any person” upon that person’s request “reasonably describing] such records.” 5 U.S.C. § 552(a)(3). We have said of § 552(a)(3) that “Anyone whose request for specific information has been denied has standing to bring an action; the requester’s circumstances — why he wants the information, what he plans to do with it, what harm he suffered from the failure to disclose — are irrelevant to his standing.” Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 617 (D.C. Cir. 2006). The point of this passage is that the requester has suffered a particularized injury because he has requested and been denied information Congress gave him a right to receive. See id. at 619. The Supreme Court said much the same in Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989): “Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records.” See Sargeant v. Dixon, 130 F.3d 1067, 1070 (D.C. Cir. 1997).

We do not understand how the FOIA § 552(a)(3) decisions apply to this case. Prisology made no request of the Bureau of Prisons before bringing suit and therefore received no denial from that agency. As to FOIA § 552(a)(2), our decisions dealing with the enforcement of this subsection have not discussed standing. But in each such case the plaintiff made a request of the agency and the agency denied the request. See Citizens for Responsibility, 846 F.3d at 1239; Irons v. Schuyler, 465 F.2d 608, 614 (D.C. Cir. 1972) (the “opinions and orders referred to in Section 552(a)(2), when properly requested, are required to be made available, and ... such requirement is judicially enforceable without further identification under Section 552(a)(3), even though the agency has failed to make them available as required by Section 552(a)(2)”); American Mail Line, Ltd. v. Gulick, 411 F.2d 696, 698 (D.C. Cir. 1969) (separate opinion of Tamm, J.). In Gulick it also appears that the plaintiff articulated a separate, particularized injury suffered as a result of the agency’s denial of its request for a FOIA § 552(a)(2) document. See 411 F.2d at 698. And in Citizens for Responsibility, the plaintiff claimed that the agency’s refusal to make documents available under § 552(a)(2) harmed its “core programmatic activities,” which included research from public government records. Amended Complaint ¶¶ 6, 11, Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 164 F.Supp.3d 145 (D.D.C. 2016) (No. 13-01291 (APM)). It is little wonder that during oral argument Prisology conceded that its complaint contained no allegation of harm from the Bureau’s failure to make the records electronically available.

Instead of alleging a particularized injury, Prisology seems to argue that any violation of a statutory right to information is an injury in fact. Appellant Br. at 11. Congress can create new legal rights the violation of which may constitute an injury in fact. Lujan, 504 U.S. at 578, 112 S.Ct. 2130. Yet the Supreme Court, after discussing Lujan, has held that the “requirement of injury in fact is a hard floor of Article III jurisdiction” that not even a statute can remove. Summers v. Earth Island Inst., 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). We read these cases to mean that at the pleading stage the plaintiff must still at least allege a particularized injury.

Prisology also claims that it has standing because its complaint amounted to a request for particular information. Appellant Br. at 12. The argument goes nowhere. To the extent that a complaint may be seen as a request, it is a request for relief from a court. If the court denies the request, the plaintiff may appeal. But a court’s refusal to grant relief cannot confer Article III standing that otherwise does not exist. No one would say that the plaintiffs in Lujan had standing because the Supreme Court ruled against their claim of standing. To accept Prisology’s argument would be to read out of the law the requirement that at the pleading stage the plaintiff at least has to allege some injury in fact. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

The result here may seem overly technical. But Prisology’s predicament is one of its own making. With little effort it may have been able to satisfy the requirements of Article III. The Supreme Court over the years has taken steps to clarify the law of standing. We would not muddy the waters in order to accommodate Prisology’s recalcitrance even if we had the power to do so, which we do not.

Affirmed.


source: Caselaw Access Project

author: TATEL, Circuit Judge:

license: Public Domain

text:
    NEXTERA DESERT CENTER BLYTHE, LLC, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent California Independent System Operator Corporation and Southern California Edison Company, Intervenors
    No. 16-1003
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 2, 2017
    Decided April 4, 2017

      John N. Estes III argued the cause for petitioner. With him on the briefs were Gerard A. Clark and John Lee Shepherd, Jr., Washington, DC.
    Elizabeth E. Rylander, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were Robert H. Solomon, Solicitor, and Ross R. Fulton, Attorney, Charlotte, NC.
    William H. Weaver argued the cause for intervenors California Independent System Operator Corporation, et al. With him on the brief were Daniel J. Shonkwiler, Roger Collanton, and Rebecca A. Furman.
    Before: HENDERSON, TATEL and SRINIVASAN, Circuit Judges.
   TATEL, Circuit Judge:

In this petition for review, a major producer of solar power challenges orders of the Federal Energy Regulatory Commission denying its effort to obtain financial instruments known as Congestion Revenue Rights. Because FERC erroneously concluded that the relevant contract and tariff provisions unambiguously foreclose petitioner’s request, we remand to the Commission so that it may “consider the question afresh in light of the ambiguity we see.” Cajun Electric Power Cooperative, Inc. v. FERC, 924 F.2d 1132, 1136 (D.C. Cir. 1991).

I.

This case concerns two solar power plants in the California desert — the Genesis solar plant in Desert Center and the McCoy solar plant near Blythe — and a transmission project that connects them with customers in Southern California. Together, the facilities generate 500 megawatts of electricity, enough to power approximately 180,000 homes every year. See NextEra Energy Resources Partners, Genesis Solar Energy Center, https://goo. g]/tdbXt4; NextEra Energy Resources Partners, McCoy Solar Energy Center, https://goo.gl/mo3KlR. Producing all that power from sunlight requires an enormous scale: the Genesis plant alone occupies some 1,900 acres. Bureau of Land Management, Genesis Solar Energy Project, https://goo.gl/8qdMRM.

Prior to completion of the two facilities, Genesis and McCoy entered into long-term agreements to sell their power to electric utilities, including Southern California Edison Company. Petitioner NextEra Desert Center Blythe, LLC was then formed to connect Genesis and McCoy to the grid. In August 2011, NextEra, Edison, and the California Independent System Operator (CAISO) — the authority tasked with operating transmission facilities in California— reached an agreement to govern the interconnection of Genesis and McCoy to the CAISO-eontrolled grid. Central to this case, that agreement identified the need for high-voltage transmission upgrades, known as the West of Devers Upgrades, in order to safely and reliably deliver electricity from the two solar plants.

NextEra, however, soon grew concerned that the permanent West of Devers Upgrades would not be completed in time for it to meet its obligations to the electric utilities. In response, CAISO and Edison identified a temporary fix, known as the Interim Project, to meet NextEra’s needs in the meantime. By subsequent letter agreement, NextEra and Edison committed to the Interim Project, with Edison responsible for construction and NextEra footing the bill. The parties then amended their initial agreement to incorporate the letter agreement. For simplicity’s sake, we will refer to the amended agreement and letter agreement together as the Interconnection Agreement.

In December 2014, CAISO informed NextEra that it planned to release Congestion Revenue Rights (“CRRs”). CRRs arise from CAISO’s method for setting wholesale electricity prices, which builds the cost of congestion into the price of energy. Sacramento Municipal Utility District v. FERC, 616 F.3d 520, 524 (D.C. Cir. 2010) (explaining how CAISO sets wholesale electricity prices). Put simply, energy costs more in areas requiring the use of congested transmission lines and less in areas that do not. Id. at 524-25. CRRs are financial instruments that are principally used to allow the holder to avoid paying congestion costs. Id. at 527. Because the holder of a CRR is entitled “to be paid the congestion costs associated with transmitting a given quantity of electricity between two specified points” a party that pays for transmission and holds a corresponding CRR will receive back from CAISO the amount it paid for congestion. Id. (citation omitted).

According to NextEra, it was initially shocked to learn that the Interim Project would result in the release of CRRs. Even so, NextEra informed CAISO that, in its view, it is entitled to receive CRRs associated with the Interim Project under section 36.11 of CAISO’s tariff, which provides for the allocation of CRRs to “Project Sponsors of Merchant Transmission Facilities.” CAISO and Edison disagreed. In response, and initiating the controversy before us, NextEra filed a complaint with FERC asking that the Commission direct CAISO to allocate it CRRs.

By order dated June 3, 2015, the Commission denied NextEra’s complaint. NextEra Desert Center Blythe, LLC v. CAISO, 151 FERC ¶ 61,198, 2015 WL 3536557. NextEra filed a request for rehearing, which the Commission also denied. NextEra Desert Center Blythe, LLC v. CAISO, 153 FERC ¶ 61,208, 2015 WL 7345798 (“NextEra Desert Center IF). The two orders share a common rationale: according to the Commission, the terms of the Interconnection Agreement “clear[ly] and unambiguously]” bar NextEra’s attempt to receive CRRs under CAISO tariff section 36.11. Id. at *4. Given this interpretation, FERC “declin[ed]” to address whether NextEra would otherwise be “entitled to CRRs under CAISO tariff section 36.11” because, in FERC’s view, that provision is “inapposite” and “does not apply” to the Interim Project. Id. at *4-5.

Following the Commission’s denial of rehearing, NextEra filed this petition for review. Both Edison and CAISO sought leave to intervene, which we granted.

II.

Where, as here, we confront a challenge to FERC’s reading of a tariff and related contracts, we review the “[Commission]’s interpretation under the Administrative Procedure Act’s arbitrary and capricious standard of review, using a two-step, Chevron-like analysis.” Colorado Interstate Gas Co. v. FERC, 599 F.3d 698, 701 (D.C. Cir. 2010) (citing 5 U.S.C. § 706(2)(A); Old Dominion Electric Cooperative, Inc. v. FERC, 518 F.3d 43, 48 (D.C. Cir. 2008)). First, we “consider de novo whether the [relevant language] unambiguously addresses the matter at issue. If so, the language ... controls for we must give effect to the unambiguously expressed intent of the parties.” Ameren Services Co. v. FERC, 330 F.3d 494, 498 (D.C. Cir. 2003) (citation and internal quotation marks omitted). If, however, there is ambiguity, “we defer to the Commission’s construction ... so long as that construction is reasonable.” Koch Gateway Pipeline Co. v. FERC, 136 F.3d 810, 814-15 (D.C. Cir. 1998). Importantly, if FERC’s decision rests on “an erroneous assertion that the plain language of the relevant wording is unambiguous[,] we must remand” to the Commission so that it may “consider the question afresh in light of the ambiguity we see.” Cajun, 924 F.2d at 1136.

Athough this dispute implicates a tangle of provisions within an intricate regulatory scheme, our resolution is straightforward: we find ambiguity where FERC found none. The Commission’s interpretation of the Interconnection Agreement rests on a simple logical flaw.

From the outset, NextEra has claimed that it is entitled to CRRs for the Interim Project under section 36.11 of the CAISO tariff, which affords CRRs to the “Project Sponsor” of a “Merchant Transmission Facility.” According to FERC, three provisions of the Interconnection Agreement, when read in concert, plainly render Next-Era ineligible. Its argument goes like this:

1. Under the Interconnection Agreement, NextEra is entitled to a refund for Network Upgrades. Interconnection Agreement, Article 11.4.1.

2. The Interconnection Agreement provides that CRRs under the tariff are available to NextEra only as an alternative to a refund for Network Upgrades. Interconnection Agreement, Article 11.4.

3. NextEra agreed that the Interim Project is not a Network Upgrade (at least until the Interim Project becomes permanent). Interconnection Agreement, Appendix A, Section 9(b).

4. Thus, NextEra is ineligible for CRRs in connection with the Interim Project.

The flaw lies in step 2. The relevant provision, Article 11.4, states that NextEra may elect to “receive Congestion Revenue Rights as defined in and as available under the CAISO Tariff ..., in lieu of a refund of the cost of Network Upgrades.” Interconnection Agreement, Article 11.4 (emphasis added). As FERC sees it, the critical language is “in lieu of a refund of the cost of Network Upgrades,” which it takes to mean that NextEra may receive CRRs only if it is eligible for a refund for a Network Upgrade. But the only thing Article 11.4 clearly forecloses is the receipt of both CRRs and a refund for Network Upgrades. The clause beginning with “in lieu of’ does not unambiguously mean that the lone avenue for receipt of CRRs is by way of a Network Upgrade.

This is, of course, NextEra’s point: it thinks section 36.11 of the CAISO tariff offers another way to obtain CRRs for the Interim Project. Instead of addressing NextEra’s argument, however, the Commission expressly declined to consider whether the company could avail itself of that section, declaring the question “inap-posite” and “not relevant.” NextEra Desert Center II, 2015 WL 7345798, at *4. For our purposes, whether NextEra actually qualifies under section 36.11 is beside the point, as the reason given by the Commission for denying NextEra’s claim was its flawed interpretation of the tariff and Interconnection Agreement — an error that, under our cases, requires remand. Ameren, 330 F.3d at 498-99.

In contrast to FERC, Interve-nors CAISO and Edison address section 36.11 head-on. As they explain, NextEra is patently unqualified for CRRs under that provision because it “never applied for ... status” as a Project Sponsor “in accordance with Section 24” of the CAISO tariff. Intervenors’ Brief at 23-24. Whatever the merits of that argument, it is a well-worn principle that “reviewing courts may affirm [an agency order] based only on reasoning set forth by the agency itself.” Philadelphia Gas Works v. FERC, 989 F.2d 1246, 1250 (D.C. Cir. 1993) (citing SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). Hardly a fussy insistence that the agency show its work, this doctrine reflects the respect courts have for agency expertise. “Congress explicitly delegated to FERC broad powers over ratemaking, including the power to analyze the relevant contracts, and because the Commission has greater technical expertise in this field than does the Court, we accord deference to the Commission’s interpretation[s].” Lomak Petroleum, Inc. v. FERC, 206 F.3d 1193, 1198 (D.C. Cir. 2000) (citation and internal quotation marks omitted). As such, it is altogether appropriate that we decline to reach issues of tariff interpretation without first receiving the benefit of FERC’s considered judgment.

The Commission acknowledges that our precedent requires remand when its decision rests on the erroneous conclusion that a tariff is unambiguous. It argues, however, that we may nonetheless deny the petition based on an alternative Chevron step 2 analysis that it claims lurks in its order denying rehearing. In support, it cites Old Dominion, in which we afforded “substantial deference to the Commission’s interpretation” despite petitioners’ claim that the agency found the relevant documents unambiguous, explaining that the Commission “considered policy concerns and extrinsic evidence ... demonstrating it recognized [the documents] were ambiguous and exercised its discretion to resolve the ambiguities.” 518 F.3d at 48-49. FERC’s reliance on Old Dominion is misplaced. In an especially mystifying portion of its order, FERC observed that “even if the Commission found it necessary to look outside the four corners” of the Interconnection Agreement, its conclusion about the inapplicability of section 36.11 would remain unchanged, in light of “relevant portions of the CAISO tariff.” NextEra Desert Center II, 2015 WL 7345798, at *6. Unlike in Old Dominion, however, FERC’s cryptic discussion nowhere indicated that it understood the ambiguity we have identified. Rather, implicit in the Commission’s reasoning is a continued reliance on its earlier, erroneous construction of the Interconnection Agreement. See, e.g., id. (“[I]nterconnection customers have the choice of direct payments or CRRs for Network Upgrades. NextEra has agreed ... that the Interim Project is not a Network Upgrade.”). In other words, the Commission’s orders contain no apparent Chevron step 2 analysis to which we can defer.

Moreover, even if we were to consider FERC’s alternative analysis, we would conclude that the Commission “fail[ed] to provide an intelligible explanation” for its decision, which “amounts to a failure to engage in reasoned decisionmak-ing.” FPL Energy Marcus Hook, L.P. v. FERC, 430 F.3d 441, 448 (D.C. Cir. 2005). Specifically, the Commission leans heavily on two provisions of the tariff: Appendix DD and Appendix Y. The former provides, in relevant part, that “[f]or Network Upgrades, for which the Interconnection Customer did not receive repayment, the Interconnection Customer will be eligible to receive [CRRs] in accordance with the CAISO Tariff Section 36.11.” CAISO Tariff, Appendix DD § 14.3.2.1. Appendix Y states that “[i]nstead of direct payments, the Interconnection Customer may elect to receive [CRRs] in accordance with the CAISO Tariff Section 36.11 associated with the Network Upgrades.” CAISO Tariff, Appendix Y § 12.3.2.1. It follows, says FERC, that “interconnection customers have the choice of direct payments or CRRs for Network Upgrades.” NextEra Desert Center II, 2015 WL 7345798, at *6. But neither provision, at least not by any reasoning spelled out in FERC’s orders, forecloses the possibility that an entity in NextEra’s position may receive CRRs under section 36.11 by some route other than a Network Upgrade — precisely the theory animating NextEra’s claim.

III.

We emphasize the narrowness of our holding, ie., that FERC overlooked an ambiguity in the Interconnection Agreement. Nothing in our opinion should be taken to prejudge the conclusion that FERC may reach on remand.

For the foregoing reasons, the petition for review is granted, and FERC’s orders are remanded for further proceedings consistent with this opinion.

So ordered.


author: SENTELLE, Senior Circuit Judge: KAVANAUGH, Circuit Judge,

text:
    NAVAJO NATION, a federally recognized Indian tribe, Navajo Nation Department of Justice, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR and Ryan Zinke, in his official capacity as Secretary, United States Department of the Interior, Appellees
    No. 16-5117
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 9, 2016
    Decided April 4, 2017

      Steven D. Gordon argued the cause for appellant. With him on the briefs were Philip Baker-Shenk and Jessica Farmer, Washington, DC.
    John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for ap-pellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark R. Freeman, Attorney.
    Before: KAYANAUGH and PILLARD, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   Concurring opinion filed by Circuit Judge KAVANAUGH.

SENTELLE, Senior Circuit Judge:

The Navajo Nation delivered a proposed funding agreement to the Bureau of Indian Affairs, an agency within the United States Department of the Interior, during a partial government shutdown. By law, the BIA had 90 days after receipt to act on the proposal or it would be deemed approved. The BIA did not consider the proposal “received” until normal government operations later resumed, and issued a partial declination 90 days after that date. The Nation filed an action to enforce the proposal, contending that the BIA’s declination was untimely. The district court granted summary judgment to the DOI, holding that because the Nation had remained silent when the BIA indicated its position on the deadline, the Nation was equitably estopped from asserting an earlier one. The Nation brought the present appeal. We reverse the judgment.

I. Background

Congress enacted the Indian Self-Determination and Education Assistance Act (“ISDEAA”) to help Indian tribes assume responsibility for programs or services that a federal agency would otherwise provide to the tribes’ members. 25 U.S.C. §§ 5301 et seq. The transfer of authority from the Department of the Interior (“DOI”) to a tribe is memorialized in a “self-determination contract.” The IS-DEAA includes a model contract specifying a multi-year term, with the funding amount for each year to be determined during subsequent negotiations and incorporated through annual funding agreements. Id. § 5329(c). When a. tribe submits a proposed annual funding agreement to DOI, “the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification” to the tribe that the proposal is declined for one of five reasons provided by the statute. Id. § 5321(a)(2). “[T]he Secretary may extend or otherwise alter the 90-day period ... if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe” to do so. Id. “A proposal that is not declined within 90 days (or within any agreed extension ...) is deemed approved. ...” 25 C.F.R. § 900.18.

In 2012, DOI Secretary Sally Jewell entered into a self-determination contract under the ISDEAA whereby the federal government would fund the Navajo Nation’s (“the Nation”) judicial operations from January 1, 2012 through December 31, 2016. The contract requires the parties to negotiate a separate funding agreement for each calendar year that it covers.

On October 4, 2013, the Nation hand-delivered a proposal to Raymond Slim, an ISDEAA Specialist in the Self-Determination Office in the Bureau of Indian Affairs (“BIA”) Navajo Regional Office. Slim marked it for intra-office mail delivery to Jeanette Quintero, a BIA official that the BIA claims is responsible for making award and declination decisions for the Nation’s contracts under the ISDEAA. However, Quintero was furloughed at that time pursuant to a partial government shutdown caused by a lapse in congressional appropriations. Quintero returned to work on October 17, 2013, when normal governmental operations resumed, and apparently received the proposal on that date.

On October 21, 2013 — two business days after normal government operations resumed — the BIA sent a letter to the Nation acknowledging its receipt of the proposal. The letter stated that, due to the government shutdown, the BIA considered the proposal to have been received on October 17, 2013. The letter asserted that the BIA had until “90 days after October 17, 2013 to approve, decline, or award the proposal,” and that this “90-day period will end on January 15, 2014.” (emphasis in original). The letter directed the Nation to contact Quintero or her colleague Frances Price if it had any questions. The Nation did not respond to this letter.

On November 7, 2013, the BIA sent another letter to the Nation, this time identifying substantial changes between the proposal and the CY 2013 annual funding agreement, including the fact that the Nation’s requested budget amount had increased from about $1.3 million to over $17 million. The letter requested that the Nation respond to the BIA’s concerns by November 29, 2013, so that the BIA could complete its review of the proposal, and stated that the BIA would “hold the approval” of the proposal until the Nation submitted the requested documents. The letter directed the Nation to contact Quintero, Price, or their colleague Daniel Largo, Jr., if it had any questions. The Nation did not respond to this letter.

If the proposal was properly “received” on the date it was hand-delivered (October 4), rather than on the date government operations resumed (October 17), then the 90-day window for the Secretary to act on it closed on January 2, 2014, rather than January 15 as asserted by the BIA. But the BIA neither approved nor denied the proposal by January 2, 2014, nor did it ever receive the Tribe’s “express written consent” to an extension of time within which to do so.

On January 9, 2014, the BIA sent a letter to the Nation requesting a 45-day extension to the 90-day window. The BIA stated that it was requesting the extension so that the Nation could have additional time to respond to the issues raised in the BIA’s November 7 letter. Again, the letter directed the Nation to contact Quintero, Price, or Largo with any questions. The Nation did not respond to this letter.

On January 15, 2014 — according to the BIA, the last day of the 90-day window— the BIA sent the Nation a letter partially declining the proposal. The BIA authorized approximately $1.3 million in funding rather than the approximately $17 million requested.

On January 27, 2014, the Nation sent the BIA a letter asserting that the 90-day review window had actually closed on January 2, 2014 — i.e., 90 days after the Nation delivered the proposal to the Regional Office. The letter stated that the BIA’s partial declination was therefore untimely and that the proposal was automatically deemed approved as a matter of law.

On February 7, 2014, the BIA sent the Nation a letter explaining that the partial declination was timely because delivery of the proposal to Slim did not constitute receipt by the Secretary as Slim was only authorized to perform work for contracts relating to road construction during the partial shutdown. The BIA contended that during the partial shutdown no BIA employee was authorized to receive or work on the Nation’s proposal, so the 90-day review period did not begin until the authorized employees returned to work on October 17, 2013.

The Nation filed the instant action in November 2014 seeking to enforce the proposal. The district court denied the Nation’s motion for summary judgment and granted the BIA’s cross-motion for summary judgment, finding that because the Nation was silent in response to the BIA’s letters announcing its position on the deadline for action, the Nation was equitably estopped from asserting an earlier deadline. The Nation appealed.

II. Discussion

A. Receipt

The BIA asserts that the Nation’s proposal was not “received” by the agency on October 4, 2013, notwithstanding that, on that day, the Nation hand-delivered the proposal to an agency employee at the BIA’s Navajo Regional Office. Although the district court did not reach this question, it is nonetheless appropriate for this Court to resolve it. See Proctor v. State Farm, Mut. Auto. Ins. Co., 675 F.2d 308, 325-26 (D.C. Cir. 1982) (citing Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)).

“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) (internal quotation marks omitted). The word “receive” is not defined in the ISDEAA. Considering the plain meaning of the word, it is difficult to escape the conclusion that Slim’s unconditional acceptance of the Nation’s proposal hand-delivered to him on October 4, 2013, constituted receipt on that day. See Webster’s Third New Int’l Dictionary 1894 (3d ed. 2002) (defining “to receive” as “to take possession or delivery of’ or “to admit or accept in some character or capacity”).

DOI’s “Internal Agency Procedures Handbook for Non-Construction Contracting Under Title I of the [ISDEAA] ” (“Handbook”) notes that the 90-day deadline for action begins upon “receipt by the agency.” The Handbook defines “agency” as “the individual operating divisions or bureaus of ... the DOI,” including “offices.” The Handbook, then, suggests that a proposal’s arrival at any BIA office constitutes receipt. A subsequent section titled “Receipt of Initial Contract Proposal” also supports this straightforward reading by suggesting that “receipt” immediately precedes the date-stamping of a proposal upon “arriv[al] in any office.” Indeed, the Handbook notes that the BIA is required to respond within 90 days of receipt even by an office without the authority to process proposals. See Yurok Tribe v. United States Dep’t of Interior, 785 F.3d 1405, 1410-11 (Fed. Cir. 2015) (rejecting the government’s argument that a proposal must be sent to a particular office within the BIA).

DOI asserts that Slim was legally incapable of accepting the proposal on behalf of the Secretary during the partial shutdown due to the Anti-Deficiency Act (the “Act”). The Act expressly prohibits agencies from incurring obligations in excess of appropriations, including the employment of federal personnel during a lapse in appropriations, such as a shutdown. 31 U.S.C. §§ 1341(a), 1342. Only excepted or exempted employees may work during a shutdown. Excepted employees are employees who are authorized to work on specific assignments to protect human life and property. Id. § 1342. Exempted employees are those whose salaries are paid out of a source of funding other than annual appropriations and therefore are not implicated by the Act. See Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations, 43 U.S. Op. Atty. Gen. 293, 298 (1981); see also BIA Contingency Plan Q&A Document (Sept. 27, 2013).

According to DOI, there were no excepted or exempted employees in the BIA’s Navajo Regional Office authorized to receive or work on ISDEAA contracts during the government shutdown. Slim, exempt from the Act because his salary was funded from multi-year appropriations, was “specifically authorized to receive or work on contracts related to road construction” but could not “work on contracts such as the Navajo Nation’s....” DOI asserts that because no source of appropriated funds was available for Slim to receive the proposal on behalf of the Secretary during the partial shutdown, it would have been a violation of the Act for him to do so. But DOI concedes that Slim was permitted to engage in the “de minimis non-exempt function[ ]” of “marking the CY 2014 proposal for intra-office mail delivery.” DOI does not explain how he could have so processed a document not yet received.

Nevertheless, DOI argues, Slim lacked the authority to “receive” the proposal on behalf of the Secretary; thus, it contends, his acceptance of the proposal did not trigger the regulatory deadlines at issue in this case. However, while “the Anti-Deficiency Act’s requirements ‘apply to the official, ... they do not affect the rights in this court of the citizen honestly contracting with the Government.’ ” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 132 S.Ct. 2181, 2193, 183 L.Ed.2d 186 (2012) (quoting Dougherty v. United States, 18 Ct.Cl. 496, 503 (1883)). For example, although the Act prohibits a government agency from incurring obligations in excess of appropriations, if the agency nevertheless obligates itself to spend in excess of appropriations, it does not cancel the agency’s obligations nor defeat the rights of other parties. Salazar, 132 S.Ct. at 2193 (citing Ferris v. United States, 27 Ct.Cl. 542, 546 (1892)); see also Wetsel-Oviatt Lumber Co. v. United States, 38 Fed.Cl. 563, 570 (1997) (holding that the Act will not “shield the government from liability where the government has lawfully entered into a contract with another party”). Likewise, even if Slim violated the Act by accepting the Navajo Nation’s proposal, the agency is nonetheless bound by the consequences of him doing so. In short, even if DOI’s position were otherwise correct, it would prove at most that its employee should not have received the document, not that he did not receive it.

B. Equitable Principles

DOI alternatively asserts two equitable principles that it argues excuse any untimeliness. First, DOI argues that the Navajo Nation is equitably estopped from disputing the timeliness of the declination after remaining silent in the face of the BIA’s repeated assertions of its position on the matter. Second, DOI argues that equitable tolling of the 90-day deadline is appropriate for the period of the government shutdown. We disagree. Such equitable relief is inappropriate in this case.

Equitable doctrines are grounded in fairness and justice, Anglo-Am. Sav. & Loan Ass’n v. Campbell, 13 App.D.C. 581, 603-04 (D.C.App.1898); In re Ionosphere Clubs, Inc., 85 F.3d 992, 999 (2d Cir. 1996), and their application implies the occurrence of atypical circumstances. Equitable estoppel does not arise in this case. The government itself has consistently taken the position that estoppel does not apply against the sovereign United States. It thus ill-behooves the government to seek to impose such an uncommon action against another sovereign, especially one to which it owes a “distinctive obligation of trust.” Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480, 86 L.Ed. 1777 (1942). In its dealings with the Indians, the United States government “has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.” Id. at 297, 62 S.Ct. 1049.

Nor does this case present the sort of “extraordinary circumstances” that justify equitable tolling. See Menominee Tribe of Wis. v. United States, — U.S. —, 136 S.Ct. 750, 755, 193 L.Ed.2d 652 (2016) (holding that circumstances must be sufficiently “extraordinary” to support equitable tolling). Government stoppages are hardly unforeseeable. If the government believes it cannot “receive” documents during a stoppage, it should instruct its employees not to receive them, rather than expect its citizens and its courts to “equitably” pretend it has not done so. There is no evidence in the record that the BIA made any effort to prevent personnel such as Slim from “receiving” proposals, or to inform tribes that it would not “receive” proposals during the shutdown.

DOI argues that the Court’s holding will lead to “absurd result[s]” — for example, if a lapse in appropriations lasted longer than 90 days, any proposals “received” at offices without excepted or exempt employees authorizéd to decline them would be automatically deemed approved during the lapse. Again, DOI, not its clients, has the authority to instruct its own employees on what they cannot do. Further, in this case, the BIA lost only the first 13 of the 90 days it had to act on the proposal. DOI concedes that the BIA had sufficient time to review and respond to the proposal by asserting that “the BIA’s declination analysis did not change after November 7” and the BIA “could have issued its declination decision at any time after November 7.” Yet, inexplicably, it failed to do so. The Court will not reward DOI’s lack of diligence in the name of “equity.”

C. Award Amount

Finally, DOI argues that even if the proposal is deemed approved, the Nation cannot be awarded funds in excess of the “Secretarial amount.” When a proposal is deemed approved, “the Secretary shall award the contract or any amendment or renewal within that 90-day period and add to the contract the full amount of funds pursuant to section 106(a) of the [IS-DEAA].” 25 C.F.R. § 900.18. DOI argues that because § 106(a) provides that the Secretary may decline a proposal if the amount of funds proposed “is in excess of the applicable funding level for the contract,” 25 U.S.C. § 5321(a)(2)(D), the BIA cannot be required to award funding in excess of the amount of funds the BIA would otherwise have expended on the particular program or service for the tribe. In short, DOI seeks to transform the funding floor into a ceiling. This argument has been oft rejected. See Yurok Tribe, 785 F.3d at 1412 (noting that the statute, “by its clear terms, sets a floor, not a ceiling, on the amount of money that a Tribe can receive in a self-determination contract”); Seneca Nation of Indians v. United States Dep’t of Health & Human Servs., 945 F.Supp.2d 135, 150-51 (D.D.C. 2013) (noting that the § 106(a) or Secretarial amount is not immutable and can be increased by the Secretary). The cited portions of the ISDEAA do not “support the government’s claim that self-determination contracts are limited to funding for programs the government currently provides to the requesting tribe.” Yurok Tribe, 785 F.3d at 1412-13.

III. Conclusion

For the reasons set forth above, the district court’s decision denying the Navajo Nation’s motion for summary judgment and granting the BIA’s cross-motion for summary judgment is reversed.

So ordered.

KAVANAUGH, Circuit Judge,

concurring:

I join the Court’s opinion. I add this brief concurrence to explicitly state that equitable tolling may apply in certain government shutdown situations. The doctrine does not apply on the facts here, however, because the BIA had plenty of time after it reopened on October 1(3, 2013, to meet the 90-day statutory deadline at issue in this case.


author: SRINIVASAN, Circuit Judge:

text:
    UNITED STATES ASSOCIATION OF REPTILE KEEPERS, INC., et al., Appellees v. Ryan ZINKE, The Honorable, in his official capacity as the Secretary of the Interior and United States Fish and Wildlife Service, Appellants Humane Society of the United States and Center for Biological Diversity, Appellees
    No. 15-5199
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 1, 2016
    Decided April 7, 2017

      Emily A. Polachek, Attorney, U.S. Department of Justice, argued the cause for federal appellants. With her on the briefs were John C. Cruden, Assistant Attorney General, and Meredith L. Flax, Attorney.
    George Kimbrell, Sr. was on the brief for amicus curiae The Center for Invasive Species Prevention, Natural Areas Association and the Wildlife Society in support of defendants-appellants.
    David E. Frulla, Washington, DC, argued the cause for appellees U.S. Association of Reptile Keepers, Inc., et al. With him on the brief were Paul C. Rosenthal, Washington, DC, and Shaun M. Gehan.
    Collette L. Adkins and Anna E. Frostic were on the briefs for defendant-interve-nors/appellees The Humane Society of the United States and Center for Biological Diversity.
    Before: TATEL, SRINIVASAN, and WILKINS, Circuit Judges.
   SRINIVASAN, Circuit Judge:

A federal statute known as the Lacey Act enables the Secretary of the Interior to designate certain species of animals as injurious to humans, wildlife, agriculture, horticulture, or forestry. When a species is designated as injurious, the Act prohibits any importation of the species into the United States or its possessions or territories. 18 U.S.C. § 42(a)(1). The Act additionally bars “any shipment” of the species “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” Id.

This case concerns the proper interpretation of the latter provision, which we will refer to as the shipment clause. All agree that the clause bars shipments of injurious species between each of the listed jurisdictions — for instance, shipments of animals between “Hawaii” and “the continental United States,” or between “the Commonwealth of Puerto Rico” and a “possession of the United States.” But what about shipments between the states making up “the continental United States” — for instance, shipments between Virginia and Maryland? Does the clause prohibit those shipments as well?

The government believes the answer is yes. It reads the shipment clause not only to bar shipments between the continental United States and the other listed jurisdictions, but also to prohibit shipments between any of the 49 States comprising the continental United States. The plaintiffs in this case, individuals who breed and sell animals, disagree. In their view, the shipment clause has no bearing on shipments of animals from one of the 49 continental United States to another.

The district court sided with the plaintiffs’ interpretation. The court thus preliminarily enjoined enforcement of a Fish and Wildlife Service rule barring interstate shipments of two species of snakes deemed to be injurious. We agree with the district court’s understanding of the shipment clause. We therefore affirm the court’s decision.

I.

A.

Since its enactment in 1900, a principal “object and purpose” of the Lacey Act has been “to regulate the introduction of American or foreign birds or animals in localities where they have not heretofore existed.” Lacey Act, ch. 553, § 1, 31 Stat. 187, 188 (1900) (codified as amended at 16 U.S.C. § 701). In furtherance of that objective, the Act established a criminal prohibition against importation into the country of certain identified species and such additional species “as the Secretary of Agriculture may from time to time declare injurious to the interest of agriculture or horticulture.” 31 Stat. at 188. That prohibition, which we will call the import clause, later became codified at 18 U.S.C. § 42.

In 1960, Congress sought “[t]o clarify certain provisions of the Criminal Code relating to the importation or shipment of injurious mammals, birds, amphibians, fish, and reptiles.” Pub. L. No. 86-702, 74 Stat. 753, 753 (1960) (citing 18 U.S.C. § 42). To that end, Congress enacted the clause directly in issue here — the shipment clause — and appended it to the import clause. The shipment clause, as noted at the outset of this opinion, makes it illegal to ship injurious animals “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” 74 Stat. at 753-54 (now codified at 18 U.S.C. § 42(a)).

The import and shipment clauses, in their current formulations, read as follows (with the shipment clause italicized for demarcation):

The importation into the United States, any territory of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States, or any shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States, of [enumerated species] and such other species ... which the Secretary of the Interior may prescribe by regulation to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States, is hereby prohibited.

18 U.S.C. § 42(a)(1) (emphasis added).

For some time after the shipment clause’s enactment in 1960, the Department of the Interior, in proposed rulemak-ings and in testimony before Congress, understood the clause to prohibit shipments of injurious animals between the listed jurisdictions (for instance, shipments between “Hawaii” and the “continental United States”) but not to bar interstate shipments within the “continental United States” itself (for instance, shipments between Kansas and Virginia). See U.S. Ass’n of Reptile Keepers, Inc. v. Jewell, 103 F.Supp.3d 133, 148-49 (D.D.C. 2015). The Department has since shifted course. In recent years, whenever the Secretary of Interior, acting through the Fish and Wildlife Service, promulgates a rule designating a new species as injurious, the rule’s preamble notes that the designation results in a prohibition against any interstate transport of the species. See, e.g., 80 Fed. Reg. 12,702, 12,702 (Mar. 10, 2015). The government, that is, now interprets the shipment clause to prohibit all interstate shipments of injurious species: the clause, under that interpretation, bars shipments not only between the “continental United States” and “Hawaii” but also bars shipments between the 49 continental States — thereby barring all interstate shipments.

B.

On December 18, 2013, the United States Association of Reptile Keepers and various individuals (ARK) filed the underlying action in the district court, challenging a 2012 rule in which the Fish and Wildlife Service designated as injurious four species of snakes not in issue in this appeal. See 77 Fed. Reg. 3,380 (Jan. 23, 2012). ARK argued that the Service lacks authority under the Lacey Act to prohibit transportation of the listed species. between the 49 continental States. The shipment clause, ARK argued, speaks solely to shipments from one listed jurisdiction to another, and therefore does not address interstate shipments within the continental United States itself.

On March 10, 2015, the Service issued a rule designating four additional species of snakes as injurious, including the two species in issue here: the reticulated python and the green anaconda. See 80 Fed. Reg. 12,702. Those two species are no garden-variety snakes. Reticulated pythons can grow to a length of more than 28 feet and have been known to eat humans. Green anacondas are the world’s heaviest snakes, attaining a weight in excess of 400 pounds and growing to about 22 feet in length. Both species can reproduce via parthenogenesis, a process by which numerous offspring can hatch from a female’s unfertilized egg, enhancing the species’ ability to establish themselves in the wild and to resist efforts to control their populations.

ARK amended its complaint to include a challenge to the 2015 rule. ARK’s members breed and sell reticulated pythons and green anacondas. Its members have legally acquired each snake, but if the shipment clause prohibits all shipments of listed injurious species from one continental State to another, ARK’s members would face criminal penalties (a fíne or up to six months of imprisonment, see 18 U.S.C. § 42(b)) for shipping the two species across state lines.

ARK filed an application for a temporary restraining order seeking to prohibit the 2015 rule from going into effect. The district court converted ARK’s application for a temporary restraining order into a motion for a preliminary injunction. On the merits, the court concluded that the shipment clause does not reach shipments between the 49 continental States, such that the Service lacks authority to bar transport of the designated snakes between those States. See Reptile Keepers, 103 F.Supp.3d at 143-44, 159. The district court therefore granted a preliminary injunction, and the government now appeals.

II.

To the extent the district court’s decision to enter a preliminary injunction “hinges on questions of law, ... our review is essentially de novo.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998) (internal quotation marks omitted). The central issue before us concerns the scope of the Lacey Act’s shipment clause: does the clause prohibit shipments of injurious animals from one of the 49 continental States to another? We, like the district court, conclude that the clause’s prohibition does not speak to shipments between the continental States.

At the outset, we note that the procedural context of this appeal does not prevent us from definitively deciding the merits of the shipment clause’s meaning. The district court’s entry of a preliminary injunction turned on whether the party seeking relief (here, ARK) is “likely” to succeed on the merits, rather than on a final disposition of the merits. See Reptile Keepers, 103 F.Supp.3d at 141. Our review, however, “is not confined” to the grant or denial of injunctive relief. See Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 833 (D.C. Cir. 2009) (quoting Munaf v. Geren, 553 U.S. 674, 691, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)). When, as here, the ruling under review “rests solely on a premise as to the applicable rule of law, and the facts are- established or of no controlling relevance,” we may resolve the merits “even though the appeal is from the entry of a preliminary injunction.” Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 757, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1985), overruled on other grounds by Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). We reach a definitive judgment on the shipment clause’s meaning in order to “save the parties the expense of future litigation.” See id. at 756-757, 106 S.Ct. 2169; see also 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3921.1 (3d ed. 2017).

A.

Our interpretation of the shipment clause “begins where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). The shipment clause prohibits any shipment of an injurious species “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” 18 U.S.C. § 42(a)(1).

The parties agree that the statute prohibits shipment of an injurious species from any of the listed jurisdictions to any other listed jurisdiction. We know, consequently, that there can be no shipments between Hawaii and Puerto Rico, or between Guam (a possession of the United States) and the District of Columbia. We likewise know, with regard to “the continental United States,” that there can be no shipments from the continental United States to Hawaii (or vice versa), or from the continental United States to Puerto Rico (or vice versa).

While it is common ground that the shipment clause prohibits shipments between the continental United States and any of the other listed jurisdictions, what about shipments between the 49 “continental United States” themselves — between Virginia and Maryland, for instance? The government submits that the shipment clause bars those shipments as well. ARK argues otherwise. We agree with ARK.

ARK’s interpretation of the shipment clause is “mandated by the grammatical structure of the statute.” Ron Pair, 489 U.S. at 241, 109 S.Ct. 1026. When the word “between” introduces multiple items, it “expresses one-to-one relations” between the identified items. Bryan A. Garner, Garner’s Modern American Usage 101 (3d ed. 2009); see also Chicago Manual of Style § 5.220. While “between,” when used to introduce multiple items, therefore speaks to relationships between — i.e., across — the listed items, it ordinarily expresses nothing about relationships within any one of the listed items.

Consider, for instance, a notice to travelers saying the following: “Due to the weather, any flights between California cities are cancelled.” That bulletin imparts information about the status of flights within the sole listed item (“California cities”) — i.e., information about flights from one California city to another. Now, consider instead a bulletin which uses “between” to introduce a list of two items rather than just the one: “Due to the weather, any flights between California cities and New York are cancelled.” That notice speaks in terms of a one-to-one relationship between the two listed items: it communicates that there will be no flights from California cities (collectively) to New York, and vice versa. It says nothing, however, about the effect of the weather on flights within the first listed item alone — that is, flights between California cities.

The same is true of the shipment clause, which carries a parallel structure. See 18 U.S.C. § 42(a)(1). Whereas the hypothetical travel bulletin says that “any flights” between “California cities” and “New York” are cancelled, the shipment clause says that “any shipment” between “the continental United States” and “Hawaii” is prohibited. Just as the travel notice tells us something about flights between California cities (collectively) and New York, while saying nothing about flights between each California city, the shipment clause tells us something about shipments between the continental United States (collectively) and Hawaii, while saying nothing about shipments between the 49 continental States.

The shipment clause of course references not just the “continental United States” and “Hawaii,” but also includes in its list of jurisdictions “the Commonwealth of Puerto Rico,” the “District of Columbia,” and “any possession of the United States.” The use of “between” to introduce more than two objects does not alter the proper understanding of the clause. “Between has long been recognized as being perfectly appropriate for more than two objects if multiple one-to-one relationships are understood from the context.” Chicago Manual of Style § 5.220; see Garner, supra, at 101-02. In such a situation, in other words, “between” denotes that each listed object shares a one-to-one relationship with each of the other objects. It still indicates nothing, though, about relationships within any of the listed objects itself.

That is true, for instance, of the following observation: “there are no games between National Football League teams, Major League Baseball teams, and National Basketball Association teams.” That sentence speaks in terms of multiple one-to-one relationships — viz., the relationship of each of the listed professional sports leagues to the other leagues. It expresses that there are no games in which an NFL team plays against an MLB team, no games in which an MLB team plays against an NBA team, and no games in which an NBA team plays against an NFL team. The sentence, however, tells us nothing about relationships within any of the listed leagues. It does not, for example, indicate that there are no games in which an NFL team plays against another NFL team.

The shipment clause operates in the same manner. It addresses (and prohibits) shipments from each listed jurisdiction to each of the other jurisdictions. It says nothing about shipments within one of the listed jurisdictions (the continental United States).

The government sees substantial significance in the shipment clause’s use of the disjunctive “or,” rather than the conjunctive “and,” when enumerating the listed jurisdictions. The clause, the government stresses, prohibits shipments “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” 18 U.S.C. § 42(a)(1) (emphasis added). The word “or,” to the government, means that the clause not only prohibits shipments from the continental United States to the other jurisdictions (and vice versa), but also bars shipments from any of the 49 continental States to any other continental State.

“Or” cannot do the work demanded of it by the government. The use of “or” in a list introduced by “between” is non-idiomatic. One commonly cited usage manual thus observes that the “natural conjunction linking elements introduced by between is and ..., but or” is “occasionally encountered and ... always regrettable.” R.W. Burchfield, The New Fowler’s Modern English Usage 107 (3d ed. 2000).

The ordinary remedy for the “always regrettable” use of “or” in connection with “between” is simply to read “or” as “and.” Id.; see Garner, supra, at 103. A reference to a choice “between payment in money or in kind” therefore is readily understood to express a choice between payment in money and in kind. Burchfield, supra, at 107 (emphasis altered). So, too, with the shipment clause: the non-idiomatic “or” is best understood as “and,” such that the use of “or” rather than “and” should have no effect on the clause’s meaning.

The word “or” in the shipment clause, regardless, could not bear the specific weight given to it by the government. At most, the non-idiomatic use of “or” in connection with a list of objects introduced by “between” could give rise to ambiguity about whether the statement speaks to one-to-one relationships across the listed items or instead speaks to relationships within each listed item. The government, however, reads the shipment clause to prohibit both shipments across the listed jurisdictions (between the continental United States and Hawaii, for instance) and shipments within a listed jurisdiction (from one continental State to another). There is no support for assigning “between” double duty of that kind merely because it is paired with “or.”

Consider, for instance, a facsimile of the sports-league example introduced earlier which states that “there are no games between NFL teams or MLB teams.” If we read “or” as “and,” then, as before, the statement would address games between NFL teams and MLB teams, expressing that there are no games across leagues in which an NFL team plays against an MLB team. The statement would say nothing about games within each league — i.e., games between one NFL team and another. But even if we were to understand “or” to mean something other than “and,” we would then read the statement to say that there are no games between NFL teams or between MLB teams. Under that alternative interpretation, the statement would tell us that there are no games in which one NFL team plays another, or in which one MLB team plays another. But this time, while we would know something about relationships within each league (games between two NFL teams), we would know nothing about relationships across the leagues (games between an NFL team and an MLB team).

For our purposes, the critical point is that each of the two alternative understandings of the “between/or” clause speaks either to relationships across the listed objects or to relationships within each listed object, but not to both. Here, all parties (including the government) agree that the shipment clause prohibits shipments across the listed jurisdictions— i.e., from the continental United States to Hawaii, and vice versa. The clause, then, cannot also speak to shipments within the continental United States itself — i.e., from one continental State to another.

That becomes particularly evident when taking into account that the shipment clause’s listed jurisdictions include singular (as opposed to plural) entities: Hawaii, Puerto Rico, the District of Columbia, and any possession of the United States. Even if one could read the phrase, “there are no games between NFL teams or MLB teams,” to mean “there are no games between NFL teams or between MLB teams,” that reading is possible only because both objects of “between” in that example are plural. No such interpretation is available when the list of objects introduced by “between” includes singular items. A statute barring “shipments between the continental United States or Puerto Rico” cannot be read to prohibit “shipments between the continental United States or between Puerto Rico.” It would make no sense to speak in terms of barring “shipments between Puerto Rico.”

For those reasons, the shipment clause is best read — indeed, can only be read— solely to prohibit shipments from one listed jurisdiction to another. The clause does not speak to shipments within the continental United States itself. That understanding, for the reasons explained, holds true regardless of whether “the continental United States” in the clause is conceived of as a singular or plural item. Even if the latter, the clause’s remaining listed jurisdictions are singular. The clause thus must be understood to prohibit shipments across its listed jurisdictions without addressing shipments within a particular listed jurisdiction. The clause consequently does not speak to shipments of injurious species from one continental State to another.

Because we see no ambiguity in the shipment clause’s terms in this regard, we have no need to address the parties’ dispute about whether we should defer to the Fish and Wildlife Service’s contrary interpretation of the relevant language. The parties disagree on whether ordinary principles of Chevron deference apply to an agency’s interpretation of a criminal provision like the shipment clause. Chevron deference, however, “come[s] into play” only when we must resolve statutory ambiguity. See S. Cal. Edison Co. v. FERC, 195 F.3d 17, 23, 27 (D.C. Cir. 1999). Because we read the shipment clause to be clear, we have no occasion to address whether we would defer to the agency’s resolution of any ambiguous statutory terms. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

B.

Our interpretation of the shipment clause is consistent with the evolution of the Lacey Act’s terms over time. Before the addition of the shipment clause in 1960, the import clause — the provision to which the shipment clause would be appended— simply prohibited the “importation into the United States of’ injurious species. Act of June 25, 1948, ch. 645, 62 Stat. 683, 687 (1948). The “United States” for purposes of the Act encompassed its territories (which at the time included Hawaii and Puerto Rico), as well as its possessions. See 62 Stat. at 685. The Act therefore prohibited imports from foreign countries into the United States and its territories and possessions, but it contained no distinct bar against transport of injurious species to the country’s mainland from its territories or possessions.

In 1960, Congress amended the Act in part by adding, to the bar against imports “into the United States,” the shipment clause’s prohibition against shipments “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” Pub. L. No. 86-702, 74 Stat. 753, 753 (1960). By singling out the “continental United States” as a distinct object, Congress manifested a desire to protect the mainland from shipments of injurious species from Hawaii (which had just become a state in 1959, see Pub. L. No. 86-3, 73 Stat. 4 (1959)), from Puerto Rico, and from island possessions such as the United States Virgin Islands and Guam.

“[A]lthough we need not rely on legislative history given the text’s clarity, we note that the history only supports our interpretation” of the 1960 amendments. See Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 1710, 182 L.Ed.2d 720 (2012). The Department of the Interior drafted the bill which eventually became those amendments. The Assistant Director, Bureau of Sport Fisheries and Wildlife, testified about the amendment on the Department’s behalf at a House of Representatives subcommittee hearing. In outlining the rationale for adding the shipment clause, he stated that “we have broadened the language a bit to prohibit the shipment between the Continental United States and Hawaii, Puerto Rico, and the Virgin Islands of the Mongoose, for this reason: Currently the Mongoose occurs in Hawaii, Puerto Rico, and the Virgin Islands.” H.R. 10329 and H.R. 10598: Hearing Before the House Comm. on the Judiciary, 86th Cong. 6 (1960) (statement of Lansing A. Parker, Assistant Director of the Bureau of Sport Fisheries and Wildlife, Department of the Interior).

That description reinforces the conclusion we independently draw from the text of the amendments: the addition of the shipment clause enabled Congress to protect the continental United States against the introduction of injurious species found in Hawaii, Puerto Rico, and any United States possession. The government, though, understands the clause to do much more than that. It reads the clause not only to bar shipments of injurious species into the continental United States from Hawaii and the other jurisdictions (and vice versa), but also to prohibit any shipments between the remaining 49 States. Had Congress desired to achieve the latter objective, however, there would have been no need to reference Hawaii and the continental United States separately. Rather, Congress simply could have barred shipments between “any State” (which by 1960 included Hawaii).

In fact, Congress used precisely that formulation in a neighboring provision of the Lacey Act. See 74 Stat. at 754. The provision, which the parties refer to as the trade provision, pertains to the transport of animals that have been illegally obtained or taken. In the same 1960 amendments which added the shipment clause, Congress also amended the trade provision to prohibit carrying or transporting illegally obtained animals “to or from any State, territory, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, or any foreign country.” Id. (emphasis added) (codified as amended at 18 U.S.C. § 43, now codified as further amended at 16 U.S.C. § 3372(a)(1)). That language plainly prohibits interstate shipments of animals subject to the trade provision.

If Congress likewise wanted to address interstate shipments of animals in the shipment clause, Congress could have (and presumably would have) used parallel language when enacting that clause in a neighboring section of the same amendments. See 74 Stat. at 753. Congress instead referred separately to “Hawaii” and the “continental United States” in the shipment clause, manifesting a narrower concern to protect the continental United States against the introduction of injurious species found in Hawaii, Puerto Rico, or United States possessions.

The shipment clause, while specifically referencing those jurisdictions (the “continental United States,” “Hawaii,” the “Commonwealth of Puerto Rico,” and “any possession of the United States”), also lists the “District of Columbia.” To the government, the reference to the District of Columbia necessarily means that the shipment clause prohibits all interstate shipments. Why, the government asks, would Congress bar shipments of injurious species between Virginia and the District of Columbia while allowing shipments of the same species between Virginia and Maryland? We are unpersuaded by the government’s reliance on the clause’s listing of the District of Columbia.

For starters, under the government’s reading of the shipment clause, the clause’s reference to the District of Columbia would be superfluous, which we generally assume Congress would not have intended. See, e.g., Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Congress defined the phrase “continental United States” in a statute enacted by the same Congress in the year before the 1960 addition of the shipment clause. See Pub. L. No. 86-70, § 48, 73 Stat. 141, 154 (1959); see also 1 U.S.C. § 1 note. Under that definition, “[wjhenever the phrase ‘continental United States’ is used in any law of the United States enacted after the date of the enactment of this Act, it shall mean the 49 States on the North American Continent and the District of Columbia, unless otherwise expressly provided.” Id. (emphasis added). In light of that definition, if, as the government urges, the shipment clause already barred the shipment of injurious species between the continental States, there would have been no need to list the District of Columbia separately.

The government, at any rate, is wrong to assume there could be no reason for Congress to prohibit the shipment of injurious animals from Virginia to the District without also barring shipments from Virginia to Maryland. The government’s argument to that effect overlooks Congress’s special legislative relationship with the District. The Constitution grants Congress the power “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may ... become the Seat of the Government of the United States.” U.S. Const, art. I, § 8, cl. 17. That is, “Congress, when it legislates for the District, stands in the same relation to District residents as a state legislature does to residents of its own state.” Banner v. United States, 428 F.3d 303, 308 (D.C. Cir. 2005) (emphasis omitted). That was particularly true when the shipment clause came into being in 1960, more than a decade before the enactment of the Home Rule Act (which delegated “certain legislative powers to the government of the District of Columbia”). Pub. L. No. 93-198, 87 Stat. 774, 777 (1973).

Before the Home Rule Act, consequently, Congress alone had the ability to establish an import ban for the District of Columbia. Individual states, by contrast, could protect themselves by enacting their own laws prohibiting the importation into their borders of invasive species. See Maine v. Taylor, 477 U.S. 131, 151-52, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). Indeed, a number of states restrict or prohibit the importation of injurious species into their territory, with some of those laws specifically cross-referencing species deemed injurious under the Lacey Act. See, e.g., Ala. Admin. Code r. 220-2-.26; Ark. Admin Code 002.00.1-09.11; Conn. Agencies Regs. § 26-55-6; 301 Ky. Admin. Regs. 2:082; Mo. Code Regs. Ann. tit. 3 § 10-4.117; Nev. Admin Code § 503.110; N.Y. Comp. Codes R. & Regs. tit. 6, § 575.3; Or. Admin. R. 635-056-0050; 4 Va. Admin. Code § 15-30-40. Congress evidently exercised its own unique authority over the District of Columbia in the shipment clause in an effort to afford the same protection to the District. If so, that would explain why Congress protected the District against shipments from Virginia while leaving Maryland to protect itself against those shipments.

The government presses various additional arguments grounded in the Lacey Act’s history in support of its reading of the shipment clause, none of which persuades us. For instance, the government relies on the 1960 amendments to the aforementioned trade provision. That provision, as noted, pertains to the transport of animals that have been illegally obtained or taken, including members of an injurious species imported in violation of the import clause. Before the 1960 amendments, the trade provision barred any transport, delivery, or shipment of such animals, including from one state to another. See 18 U.S.C. § 43 (1948). The government understands the 1960 amendments to have removed the trade provision’s prohibition against interstate transport of illegally imported animals, and to have reconstituted that bar in the shipment clause as a prohibition against interstate shipment of all injurious animals.

The premise of the government’s argument is misconceived. While Congress amended the language of the trade provision in 1960, the provision retained its prohibition against interstate transport of animals imported from a foreign country in violation of the import clause. The trade provision, as amended in 1960, prohibited “delivering], carr[ying], transporting], ship[ping] ... or knowingly receiving] for shipment” (including across state lines) any animal “which was captured, killed, taken, purchased, sold, or otherwise possessed or transported in any manner contrary to any Act of Congress or regulation issued pursuant thereto” or any state, territorial, or foreign law. 18 U.S.C. § 43 (1960) (emphasis added). The import clause was an “Act of Congress” banning importation into the United States of any injurious species. 18 U.S.C. § 42 (1960). Consequently, as with the pre-amendment version of the trade provision, the 1960 version made it unlawful to ship interstate any injurious animal imported in violation of the import clause.

The government separately argues that Congress, in actions since 1960, has either ratified the government’s present interpretation of the shipment clause or has amended the statute by implication so as to bring about that interpretation. The crux of the government’s argument lies in a series of laws amending the Lacey Act’s injurious-species list to include the zebra mussel, brown tree snake, and bighead carp. See Pub. L. No. 101-646, § 1208, 104 Stat. 4761, 4772 (1990) (zebra mussel); Pub. L. No. 102-237, § 1013(e), 105 Stat. 1818, 1901 (1991) (brown tree snake); Pub. L. No. 111-307, § 2, 124 Stat. 3282, 3282 (2010) (bighead carp). By the time of those amendments, as now, the Fish and Wildlife Service had been construing the Lacey Act to bar all interstate transport of listed injurious species. See, e.g., 54 Fed. Reg. 22,286, 22,287 (May 23, 1989). The government highlights legislative history suggesting that at least some members of Congress, perhaps informed by the Service’s interpretation of the statute, thought the amendments would criminalize interstate shipment of the newly listed species.

The government’s arguments cannot overcome the plain text of the shipment clause. When, as here, “the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.” Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991). Similarly, we will not understand Congress to have amended an act by implication unless there is a “positive repugnancy” between the provisions of the preexisting and newly enacted statutes, as well as language manifesting Congress’s “considered determination” of the ostensible change. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 134, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (alteration omitted) (quoting In re Penn Cent. Transp. Co., 384 F.Supp. 895, 943 (Reg'l Rail Reorg. Ct. 1974)). The government falls short on both scores here.

Even if some members of Congress might have assumed that the amendments to the list of injurious species would criminalize all interstate shipments of zebra mussels, brown tree snakes, and bighead carp, applying the shipment clause’s original, and more circumscribed, prohibition would not be “repugnant” to those amendments. As written, the statute would still criminalize the future importation of those species as well as the future shipment of the species between the jurisdictions listed in the shipment clause. That effect is fully consistent with Congress’s intent to regulate the newly listed species. There is no evidence, moreover, that Congress affirmatively considered the purported effect of its targeted amendments on all injurious species under the Lacey Act.

We therefore decline to conclude that Congress, by implication, altered the meaning of the shipment clause’s terms so as to criminalize the interstate shipment of every Lacey Act species. Rather, the clause continues to mean what it has meant since its enactment: it prohibits the shipment of injurious species between the listed jurisdictions, including to and from the continental United States, but it does not speak to shipments between the 49 continental States.

⅜: i]i ⅜ ⅜ ⅝

For the foregoing reasons, we affirm the district court’s judgment and hold as a matter of law that the government lacks authority under the shipment clause to prohibit shipments of injurious species between the continental States.

So ordered.


author: CLIFTON, Circuit Judge:

text:
    IN RE Mark DINGLEY, Debtor, Mark Dingley, Appellant, v. Yellow Logistics, LLC; Yellow Express, LLC, Appellees.
    No. 14-60055
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 14, 2016, San Francisco, California
    Filed April 3, 2017

      Christopher P. Burke (argued), Las Vegas, Nevada, for Appellant.
    Mark Wray (argued), Reno, Nevada, for Appellees.
    Before: RONALD M. GOULD, RICHARD R. CLIFTON, and PAUL J. WATFORD, Circuit Judges.
   OPINION

CLIFTON, Circuit Judge:

Once a debtor files for bankruptcy, the Bankruptcy Code imposes an automatic stay prohibiting creditors from attempting to collect pre-petition debts against the debtor. This rule, however, is subject to certain statutorily-enumerated exceptions. In this appeal we must determine whether civil contempt proceedings fall under one of these exceptions. We hold that under In re Berg, 230 F.3d 1165 (9th Cir. 2000), civil contempt proceedings are exempted from the automatic stay under the Bankruptcy Code’s government regulatory exemption, 11 U.S.C. § 362(b)(4), when, as here, the contempt proceedings are intended to effectuate the court’s public policy interest in deterring litigation misconduct. Accordingly, we conclude that the bankruptcy court erred by sanctioning creditor-appel-lees Yellow Logistics, LLC and Yellow Express, LLC for violating the automatic stay by pursuing civil contempt proceedings against debtor-appellant Mark Ding-ley based on his failure to pay discovery sanctions in a state court action. We affirm the decision of the Bankruptcy Appellate Panel to that effect, though on a different basis than that discussed by the BAP opinion.

I. Background

Debtor Mark Dingley is the former owner and operator of two towing companies. Creditors Yellow Logistics, LLC and Yellow Express, LLC (collectively, Yellow) are transportation companies. In 2011, Yellow sued Dingley and his towing companies in Nevada state court alleging various state law claims related to the improper towing, storage, and sale of a semi-truck and trailer belonging to Yellow. After Dingley failed to appear for a deposition in that action, the state court imposed discovery sanctions against Dingley under Nevada Rule of Civil Procedure 37(d) in the amount of approximately $4,000. Dingley failed to timely pay the sanctions, and, on Yellow’s application, the court issued an order under Nevada Revised Statutes §§ 22.010(3) and 22.030 requiring Dingley to show cause why he should not be held in contempt for his failure to pay the court-ordered discovery sanctions.

After the state court set a hearing date on its order to show cause, Dingley filed for Chapter 7 bankruptcy in Nevada bankruptcy court. On the date of the hearing, Dingley’s counsel notified the state court of his bankruptcy petition. The state court took the hearing off its calendar and issued an order requiring the parties to address the effect of the automatic stay on the pending civil contempt proceedings.

In accordance with the court’s order, Yellow filed supplemental briefing with the state court arguing that the automatic stay did not apply to the pending contempt proceedings. In arguing that the contempt proceedings were exempted from the automatic stay, Yellow relied on our court’s decision in David v. Hooker, Ltd., 560 F.2d 412 (9th Cir. 1977), where we held that civil contempt proceedings were not automatically stayed under the Federal Rules of Bankruptcy Procedure, the regime governing bankruptcy actions and the automatic stay before the enactment of the modern Bankruptcy Code.

In response, Dingley moved for sanctions under 11 U.S.C. § 362(k) in the bankruptcy court, contending that Yellow violated the automatic stay by filing the supplemental brief with the state court. The bankruptcy court agreed and awarded sanctions against Yellow in the amount of $1,500. The bankruptcy court did not address whether Hooker exempted the contempt proceedings from the automatic stay.

Yellow appealed to the Bankruptcy Appellate Panel, which reversed the bankruptcy court in a published opinion. In re Dingley, 514 B.R. 591 (9th Cir. BAP 2014). In its opinion, the BAP agreed with Yellow and held that the civil contempt proceedings were exempted from the automatic stay. Id. at 592-93. The BAP reasoned that, under our decision in Hooker, civil contempt proceedings are exempted from the automatic stay unless the proceedings turn on the determination or collection of an underlying debt or are a ploy to harass the debtor. Id. at 597 (citing Hooker, 560 F.2d at 418). Because the contempt proceedings against Dingley were not related to his pre-petition debts and were instead intended to sanction him for litigation misconduct, the automatic stay did not apply. Id. at 600. On that basis, the BAP concluded, the bankruptcy court erred by finding that Yellow violated the automatic stay. Id.

In a concurring opinion, Judge Jury reluctantly agreed with the BAP majority’s application of Hooker. Id. at 600. She questioned whether Hooker remained good law in light of the Bankruptcy Code, which was enacted one year after Hooker was decided and enumerates a list of express exceptions to the automatic stay. Id. at 600-02. Judge Jury also expressed the view that the Hooker rule was inconsistent with more recent decisions from this court broadly interpreting the scope of the automatic stay provisions in the Bankruptcy Code. Id. at 602-03.

Dingley timely appealed the BAP decision to this court. While the appeal was pending, the bankruptcy court dismissed Dingley’s underlying bankruptcy case for cause. The bankruptcy court vacated all pending hearings, except adversary proceedings and fee applications.

II. Discussion

We review de novo whether the automatic stay has been violated. In re Mwangi, 764 F.3d 1168, 1173 (9th Cir. 2014). When determining whether there has been a violation of the automatic stay, we must review a bankruptcy court decision “independently and without deference” to the BAP’s decision. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir. 2010) (internal quotation marks omitted).

We conclude, based on our post-Bankruptcy Code precedent, that civil contempt proceedings such as Dingley’s are not covered by the automatic stay because they qualify under the Bankruptcy Code’s statutorily-enumerated exception for regulatory actions taken by a government entity. See 11 U.S.C. § 362(b)(4). We thus affirm the BAP’s decision reversing the sanctions award against Yellow entered by the bankruptcy court, though on a different ground. Because we rely upon the government regulatory exemption, we dp not need to address whether Hooker remains good law.

A Automatic bankruptcy stay

Once a debtor files for bankruptcy, the Bankruptcy Code imposes an automatic stay prohibiting creditors from attempting to collect pre-petition debts against the debtor. 11 U.S.C. § 362(a). Under the Bankruptcy Code’s automatic stay provision, virtually all actions against debtors to collect pre-petition debts are prohibited. This includes:

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; [and]
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title.

Id. § 362(a)(1)-(2).

B. Government regulatory exemption

The reach of the automatic stay under the Bankruptcy Code is not unlimited, however. To that end, the Bankruptcy Code enumerates nearly thirty different statutory exceptions to the automatic stay. Id. § 362(b)(1)-(28). One of them, § 362(b)(4), often called the “government regulatory exemption,” provides that the automatic stay does not apply to “the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” This exemption “has been applied in a variety of contexts, including labor law enforcement, state bar disciplinary proceedings, and employment discrimination actions brought by the Equal Employment Opportunity Commission.” In re Universal Life Church, Inc., 128 F.3d 1294, 1297 (9th Cir. 1997) (internal citations omitted).

In our circuit, courts have applied two alternative tests when determining whether government action falls under the government regulatory exemption: the pecuniary purpose test and the public policy test. Id. (citing NLRB v. Continental Hagen Corp., 932 F.2d 828, 833 (9th Cir. 1991)). “Satisfaction of either test will suffice to exempt the action from the reach of the automatic stay.” City & County of San Francisco v. PG&E Corp., 433 F.3d 1115, 1124 (9th Cir. 2006) (citing Lockyer v. Mirant Corp., 398 F.3d 1098, 1108 (9th Cir. 2005)). Under the pecuniary purpose test, the court must determine “whether the government action relates primarily to the protection of the government’s pecuniary interest in the debtor’s property or to matters of public safety and welfare.” Universal Life Church, 128 F.3d at 1297 (citing Continental Hagen, 932 F.2d at 833). By contrast, under the public policy test, the court must determine whether the government’s action is intended to either “effectuate public policy” or to “adjudicate private rights.” Continental Hagen, 932 F.2d at 833 (quoting NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 942 (6th Cir. 1986)). If the court determines that the government’s action is intended either to protect the government’s pecuniary interest in the debtor’s property or to adjudicate private rights, the government regulatory exemption will not apply and the automatic stay will be imposed. Universal Life Church, 128 F.3d at 1297.

C. Civil contempt proceedings

We have previously considered whether the government regulatory exemption applies to proceedings to collect a sanctions award imposed against a debtor to deter litigation misconduct. In In re Berg, we held that, under both the pecuniary interest test and the public policy test, “§ 362(b)(4)’s government regulatory exemption exempts from the automatic stay an award of attorneys’ fees imposed under [Federal Rule of Appellate Procedure] 38 as a sanction for unprofessional conduct in litigation.” 230 F.3d 1165, 1168 (9th Cir. 2000). In extending the government regulatory exemption to the Rule 38 sanctions proceedings at issue in Berg, we reasoned that because the purpose of Rule 38 sanctions is to “effectuate public policy [in deterring unprofessional conduct in litigation], not to protect private rights or the government’s interest in the sanctioned person’s property,” the government regulatory exemption applies to a creditor’s attempt to collect sanctions against a debt- or under Rule 38. Id. This is true regardless of whether the sanctions are initially' pursued by a private party or whether the sanctions award is ultimately payable to a private party. Id.

Berg controls this case. In Berg, this court awarded sanctions against the debtor for filing a frivolous appeal. 230 F.3d at 1167. Here, Yellow attempted to collect discovery sanctions previously awarded against Dingley by a Nevada court under Nevada law for failing to comply with a court order which required the payment of those sanctions. In both cases, the creditor pursued the collection of sanctions to effectuate the respective court’s public policy interest in deterring certain kinds of litigation misconduct: in Berg, the filing of a frivolous appeal, and here, the failure to comply with a court order imposing discovery sanctions. See id. Moreover, the bankruptcy court did not find, nor has Dingley argued on appeal, that the contempt proceedings against Dingley were intended to either protect the Nevada state court’s pecuniary interest in Ding-ley’s property or adjudicate any private rights in Dingley’s property. See Universal Life Church, 128 F.3d at 1297. Accordingly, under Berg, the civil contempt proceedings against Dingley were exempted from the automatic stay. See 230 F.3d at 1168. Yellow therefore did not violate the automatic stay by pursuing civil contempt sanctions against Dingley.

III. Conclusion

Civil contempt proceedings are exempted from the automatic stay under the government regulatory exemption when the proceedings are intended to effectuate the court’s public policy interest in deterring litigation misconduct. Here, Yellow pursued the collection of civil contempt sanctions against Dingley to effectuate the Nevada state court’s public policy interest in deterring litigants from violating court orders imposing sanctions for litigation misconduct. The civil contempt proceedings against Dingley were therefore exempt from the automatic stay. We affirm the BAP’s reversal of the bankruptcy court’s award of sanctions against Yellow.

AFFIRMED.

      . Congress enacted the Bankruptcy Code in November 1978, about one year after Hooker was decided in September 1977. See Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. §§ 101-1532 (2012)).

      . As relevant here, § 362(k) provides that "an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees....”

      . As relevant here, Rule 38 allows appellate courts to “award just damages and single or double costs to the appellee” when the appellant files a “frivolous” appeal. Fed. R. App. P. 38.

      . In support of our decision in Berg, we cited Alpern v. Lieb, 11 F.3d 689 (7th Cir. 1993), where the Seventh Circuit held that sanctions proceedings under Federal Rule of Civil Procedure. 11 were exempted from the automatic stay because the sanctions were "meted out by a government unit, the court,” for the purpose of deterring litigation misconduct. Id. at 690. Apart from Alpem and Berg, we have found no published circuit court opinions addressing the .application of the government regulatory exemption to sanctions proceedings like the one here.