author: EDWARDS, Senior Circuit Judge:

text:
    SILVER STATE LAND, LLC, Appellant v. Janice M. SCHNEIDER, in her official capacity as Assistant Secretary, Land and Minerals Management, and Neil Kornze, in his official capacity as Principal Deputy Director, Appellees
    No. 16-5018
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 13, 2016
    Decided December 16, 2016

      Paul B. Smyth, Washington, DC, argued the cause and filed the briefs for appellant. John F. Henault, Jr. entered an appearance.
    Jeffrey S. Beelaert, Attorney, XJ.S. Department of Justice, argued the cause for appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and William B. Lazarus and David C. Shil-ton, Attorneys.
    Before: HENDERSON and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   EDWARDS, Senior Circuit Judge:

In September 2011, the City of Henderson, Nevada (the “City” or “Henderson”) executed an agreement with the Las Vegas National Sports Center (“Sports Center”) to construct sports venues on a 480-acre parcel of federally-owned public land. Under the agreement, Sports Center was to serve as the developer and work with the City in designing the project. In exchange, the City agreed to request the Bureau of Land Management (“Bureau”) in the Department of Interior (“Department”) to convey the public land to the developer. After completion of the project, the developer was to transfer ownership of the land and the sports complex to the City, and the City would lease back the venues to the developer.

After reviewing the City’s request, the Bureau agreed to conduct a modified competitive auction of the land. The City accepted the Bureau’s terms and then substituted Appellant Silver State Land, LLC (“Silver State”), a controlled affiliate of Sports Center, as the designated bidder. In April 2012, the Bureau announced that Silver State would be the designated bidder in a sealed-bid sale because it had agreed “to develop the property for public recreation and commercial uses approved by the City.” Joint Appendix (“JA”) 371. Under the modified bidding process, Silver State had the right to match the highest bid.

On June 4, 2012, Silver State submitted the only bid, which was accepted by the Bureau. On November 28, 2012, Silver State paid the balance of money due in connection with the sale, and asked the Bureau to issue the patent for the land so that Silver State could record it. Within hours after Silver State transferred the funds to the Bureau, Sports Center terminated its agreement with Henderson. On November 29, 2012, Henderson requested the Bureau to cancel the public land sale because the developer had backed out of its agreement to build the sports complex. In January 2013, the City filed an action in Nevada state court against the developer. However, the parties settled the state court litigation in March 2013, Silver State agreed to give the- City $4.25 million after it received and recorded the patent, and the City agreed to withdraw its objection to the land sale. Silver State also agreed not to pursue the sports complex project, or any other development, in Henderson.

After reviewing the matter, the Department determined that the Bureau should not give Appellant a patent for the land. Silver State filed suit in District Court to challenge the Department’s action. Appellant contended that the Department— through the Appellee, the Assistant. Secretary for Land and Minerals Management (“the Secretary”) — violated the Federal Land Policy and Management Act of 1976 (“the Act”) by canceling the land sale more than thirty days after Appellant paid for the land.

The District Court .held that the Secretary had plenary power to terminate the land sale because consummation of the sale would have been contrary to law. See Silver State Land, LLC v. Schneider, 145 F.Supp.3d 113 (D.D.C. 2015). The District Court agreed with the Secretary that the Bureau had authorized a modified competitive land auction, giving special preference to Appellant, only beeausé of the public benefits that the sale was to produce. Those public benefits were to come from the agreement that Appellant had signed with Henderson to build a sports complex, which was supposed to attract jobs and tourism to the region. However, after Appellant obtained the benefit of the modified competitive auction, it broke off the agreement with Henderson. The District Court therefore accepted the Secretary’s position that issuing the patent to Appellant would be contrary to the public benefits requirement needed to authorize a modified competitive auction. The court granted summary judgment to the Secretary and Silver State now appeals.

We affirm the judgment of the District Court. We hold that the Secretary had plenary power to terminate the land sale, and that the Act did not constrain the Secretary’s power. We reject Appellant’s claim that the Secretary’s action was arbitrary and capricious. Appellant’s Agreement with the City was the sole justification for the special auction. However, the auction sale was rendered unlawful when Sports Center terminated the agreement. Finally, we hold that Appellant did not suffer a Due Process Clause violation because it never acquired a property interest in the land.

I. BACKGROUND

A. Statutory and Regulatory Background

Appellee, the Assistant Secretary for Land and Minerals Management of the Department of the Interior, oversees the Bureau of Land Management. The scope of the Bureau’s authority over federal public lands is defined by a patchwork of statutes. An 1812 statute established the General Land-Office, located in the Department of the Treasury, with the power “to superintend, execute and perform, all such acts and things, touching or respecting the public lands of the United States.” Act of Apr. 25, 1812, ch. 68, § 1, 2 Stat. 716, 716. When Congress created the Department of the Interior in 1849, it directed “the Secretary of the Interior [to] perform all the duties in relation to the General Land Office ... now discharged by the Secretary of the Treasury,” Act of Mar. 3, 1849, ch. 108, § 3, 9 Stat. 395, 395. In 1946, Congress established the Bureau of Land Management and charged it with performing “[t]he functions of the General Land Office.” 1946 Reorganization Plan No. 3, § 403(a), 60 Stat. 1100. The result of this reorganization is the current statutory authorization for the Bureau:

The Secretary of the Interior or such officer as he may designate shall perform all executive duties appertaining to the surveying and sale of the public ■lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government.

43 U.S.C. § 2. The Supreme Court, interpreting the Department and the General Land Office’s statutory authorizations, has held that “the Department has been granted plenary authority over the administration of public lands.” Best v. Humboldt Placer Min. Co., 371 U.S. 334, 336, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963).

.Although the Department enjoys plenary authority “as a general rule,” this authority may be constrained if there is “some specific provision to the contrary in respect to. any particular grant of public land.” Corp. of the Catholic Bishop of Nesqually v. Gibbon, 158 U.S. 155, 167, 15 S.Ct. 779, 39 L.Ed. 931 (1895). One-such provision is at issue in this case: the Federal Land Policy and Management Act of 1976. The Act declares that its provisions shall “be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law.” 43 U.S.C. § 1701(b). The Act outlines certain procedures that govern the sale of public land. It requires, inter alia, sales of public land to “be conducted under competitive bidding procedures to be established by the Secretary.” 43 U.S.C. § 1713(f).

Pursuant to § 1713(f), the Department has promulgated regulations governing competitive bidding. In accordance with .the statute’s default rule that public land sales “shall be conducted under competitive bidding procedures,” id. the Department’s regulations require that, the “general procedure for sales of public lands” is a competitive public auction. 43 C.F.R. § 2710.0-6(c)(3)(i). However, if certain conditions are met, the Department may deviate from the general procedure and use either a direct sale or a modified competitive sale. 43 C.F.R. § 2710.0 — 6(c)(3)(ii), (iii). To .use a modified competitive sale, the Department must determine- that “it is necessary in order to assure equitable distribution of land among purchasers or to recognize equitable considerations or public policies.” 43 C.F.R. § 2711.3-2(a).

The Act prescribes a timeline for the Secretary to follow when issuing a patent to the winning bidder in either a competitive or modified competitive bidding process:

The Secretary shall accept or reject, in writing, any offer to purchase made through competitive bidding at his invitation no later than thirty days after the receipt of such offer.... Prior to, the expiration of such periods the Secretary may refuse to accept any offer or may withdraw any land or interest in land from sale under this section when he determines that consummation of the sale would not be consistent with this Act or other applicable law.

43 U.S.C. § 1713(g).

B. Factual and Procedural Background

Las Vegas has never been home to a major league sports franchise. Texas real estate developer Chris Milam sought to capitalize on this opportunity. In 2011, Milam’s Las Vegas National Sports Center signed a Master Project Agreement (“the Agreement”) with the City of Henderson, Nevada. The Agreement specified that Henderson would nominate a 480-acre tract of federal public land in the city for sale to Sports Center pursuant to the Southern Nevada Public Land Management Act. Under the Agreement, Sports Center promised to “plan, design, develop, construct, complete and operate” a major sports complex for professional teams in a number of sports, including basketball, soccer, football, and baseball. JA 122. The Agreement also provided that if either Henderson or Sports Center “determines that the Project is not viable ... the City or [Sports Center] shall have the right to terminate this Agreement” prior to the date that the United States issues the land patent conveying the federal land to Sports Center. JA 129; see also JA 120, 122.

In accordance with the Agreement, Henderson nominated the tract of land “for sale under the Bureau of Land Management (BLM) Direct Sale Process as set forth in 43 CFR 2711.3-3.” JA 109. Citing the “formal Project Agreement” with Sports Center, Henderson’s nomination letter to the Bureau estimated that constructing the four facilities would create “approximately 10,000 immediate construction jobs” and “provide employment for an estimated 4,000 employees.” Id. According to Henderson, an open-bid auction would “unduly jeopardize” the project by inviting speculative bidding and delaying the process. JA 110. Henderson therefore requested that the Bureau “immediately offer[ ] the subject parcels for direct sale” to Sports Center. JA 111.

Because the Bureau found that Henderson’s nomination did “not rise to the level of a ‘public project’ as contemplated by [43 C.F.R. § 2711.3-3],” the Bureau concluded that a direct sale to Sports Center would be inappropriate, JA 113. However, the Bureau committed to “pursue a modified competitive sale” in accordance with 43 C.F.R. § 2711.3-2(a). JA 114.

Henderson requested that the Bureau name Appellant, Silver State, as the designated bidder with the right to meet the highest bid. JA 358. Accordingly, on April 4, 2012, the Bureau published a Notice of Realty Action in the Federal Register announcing the modified competitive auction and naming Appellant as the designated bidder. JA 370-71. In the Notice, the Bureau justified the modified competitive auction because “Silver State Land LLC and the City of Henderson have developed an agreement that provides for long-term public benefits to the City and local residents.” JA 371. The Bureau also explained that “[w]ithin 30 days of the sale, the [Bureau] will, in writing, either accept or reject all bids received.” JA 371. The Notice also advised that the Bureau could “withdraw any parcel of land or interest therein from sale” if the Bureau determined that “the sale would be inconsistent with any law.” JA 373.

On June 4, 2012, the Bureau held the modified competitive auction. Appellant was the sole bidder at $10,560,000 — the appraised value of the land. JA 381; see afeo. JA 156 (appraising the “total property value” at $10,560,000). In accordance with the requirements detailed in the Notice of Realty Action, Appellant also included a certified check for twenty percent of its bid, roughly $2,000,000. JA 381. Eight days later, on June 12, 2012, the Bureau accepted Appellant’s bid, and directed Appellant to pay the remaining eighty percent of the purchase price by December 3, 2012. JA 390. Appellant complied and transmitted the balance to the Bureau on November 28, 2012. JA 404.

Hours after completing the purchase, Appellant delivered a letter to the City of Henderson terminating the Agreement with Henderson because, in Appellant’s view, “the overall project is not viable.” JA 409; see also JA 451. Early the following morning, the City Attorney for Henderson emailed the Bureau, requesting that the Bureau “immediately withdraw the roughly 480 acres the City nominated for Silver State Land LLC pursuant to 43 CFR 2711.3-1.” JA 411. The e-mail also alleged that “the City believes that Silver State Land LLC fraudulently induced the City and the federal government to sell it land.” JA 411. In a follow-up letter that same day, the City Attorney further explained that Henderson had requested the modified competitive sale “based -upon the Agreement and the repeated representations and assurances” of the developer, Sports Center, and Appellant. JA 413. Henderson requested that the Bureau refrain from issuing the land patent to Appellant, JA 414. Subsequently, the Bureau and Appellant agreed to several extensions of the date on which the Bureau was to issue the patent. JA 428, 656.

On January 28, 2013, Henderson filed suit in Nevada state court against Appellant, JA 431, alleging that Appellant “made numerous false and misleading representations to the City” in order to induce the land sale, JA 456. The state court dismissed without prejudice Henderson’s fraud claim, but denied Appellant’s motion to dismiss other contract claims. City of Henderson v. Milam, No. [ A-XX-XXXXXX ]-B (Nev. Dist. Ct., Clark Cty., Feb. 28, 2013). On March 13, 2013, Appellant and Henderson agreed to a settlement, under which Henderson would be paid $250,000 immediately, and $4,250,000 after Appellant received and recorded the patent to the land. JA 674. Henderson agreed to withdraw its objection to the sale, and to “[t]ake no further action to impair” the sale. JA 676. The developer agreed that neither he nor any entity he was affiliated with — including Appellant — would ever “seek to or engage in any business activities or development activities within Henderson.” Id, Henderson informed the Bureau of the resolution of the civil suit, and sent a copy of the settlement agreement to the Bureau. JA 670.

On May 10, 2013, the Bureau issued a Recommendation Memorandum to Appel-lee, the Assistant Secretary for Lands and Minerals Management. JA 667. The Bureau recommended that the Secretary “assert jurisdiction over this matter pursuant to 43 C.F.R. § 4.5(a) and direct the [Bureau] to: (i) not issue the patent to Silver State, or its successors or assigns, (ii) terminate the sale, and (iii) refund any monies still held by the Department in connection with this sale.” Id, The Bureau cited “[t]he Secretary’s and [Appellee’s] (as designated by the Secretary) broad authority over the disposition of the public lands up to the point of patent issuance” to justify the termination of the sale. JA 671. The Bureau described the “public benefits [Henderson] wished to promote through the [Bureau’s] use of a modified competitive sale process [that] no longer exists as evidenced by the Settlement Agreement.” Id, Because the basis for the modified competitive sale — -the Agreement between Henderson and Appellant — had dissolved, and the civil settlement precluded its resurrection, the Bureau recognized that it “would not have' agreed to utilize a modified competitive process” under such circumstances. Id. In a Decision Memorandum, the Secretary adopted and approved the Bureau’s Recommendation Memorandum, rendering ‘The final decision by the U.S. Department of Interior.” JA 664.

Appellant subsequently filed suit in the District Court seeking declaratory and in-junctive relief. Appellant claimed that (1) the Secretary lacked authority to terminate the sale under 43 U.S.C. § 1713, the Federal Land Policy and Management Act of 1976; (2) the Secretary’s decision was arbitrary and capricious; and (3) the Secretary was legally obligated to issue the land patent, JA 13-16. Appellant filed a motion for summary judgment in which it also asserted that the Secretary terminated the land sale without affording it due process. Motion for Summary Judgment, Silver State Land, LLC v. Beaudreau, No. 1:13— cv-00717 (D.D.C. Sept. 2, 2014). The Secretary filed a cross motion for summary judgment. The District Court granted the Secretary’s cross motion and denied Appellant’s motion. The court held that the Secretary “has authority to terminate the sale of public land, even after acceptance of a purchase offer, where consummation of the sale would be contrary to law.” Silver State Land, LLC, 145 F.Supp.3d at 126. The court rejected Appellant’s argument. that the Federal Land Policy and Management Act contravened the Secretary’s plenary authority. Id. at 128-33. The court also rejected Silver State’s argument that the termination was arbitrary and capricious as well as its Due Process Clause argument. Id. at 133-41. Appellant then filed this appeal;

II. ANALYSIS

A. Standard of Review

We review the District Court’s denial of Appellant’s motion for summary judgment de novo. Friends of Animals v. Jewell, 824 F.3d 1033, 1040 (D.C. Cir. 2016). “In reviewing de novo the district court’s grant of summary judgment on [the Department’s] administrative decisions, we directly review those decisions.” Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 753 (D.C. Cir. 2007) (citing Castlewood Prods., LLC v, Norton, 365 F,3d 1076, 1082 (D.C. Cir. 2004)). An agency’s action withstands review under the Administrative Procedure Act unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

B. The Secretary’s Authority

The Secretary properly exercised her plenary authority when she terminated the land sale to Appellant. The Department of the Interior’s authorizing legislation delegates “all executive duties appertaining to the surveying and sale of the public lands” to the Secretary or his desig-nee. 43 U.S.C. § 2. That delegation includes the authority to terminate a land sale using a modified competitive auction where the basis for the modified auction dissipates. This proposition is confirmed by a consistent line of Supreme Court precedent interpreting the Department’s enabling legislation. See Hoefler v. Babbitt, 139 F.3d 726, 728 (9th Cir. 1998) (referring to the “wall of authority’ confirming the Department’s “plenary authority over the administration of public lands”).

In Cameron v. United States, the Supreme Court explained that the Secretary of "the Interior “is charged with seeing that [the] authority [of the Land Department] is rightly exercised to the end that valid claims may be recognized [and] invalid ones eliminated.” 252 U.S. 450, 460, 40 S.Ct. 410, 64 L.Ed. 659 (1920). The source of that authority derives from “general statutory provisions,” including the Department’s enabling legislation. Id. at 459, 40 S.Ct. 410; see also Orchard v. Alexander, 157 U.S. 372, 382, 15 S.Ct. 635, 39 L.Ed. 737 (1895) (“[T]he rulings of this court since the act of 1836 [are] in favor of the power of the general officers of the land department to review and correct the action of the subordinate officials in all matters relating to the sale and disposal of public lands.”).

The Court laid the precedential foundation for the Secretary’s authority to “eliminate[ ]” invalid claims, Cameron, 252 U.S. at 459, 40 S.Ct. 410, in Knight v. United Land Ass’n:

[I]f, when a patent is about to issue, the secretary should discover a fatal defect in the proceedings, or that by reason of some newly-ascertained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the attorney general to institute proceedings for its annulment, it would hardly be seriously contended that the secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated which it would be immediately his duty to ask the attorney general to take measures to annul.

142 U.S. 161, 178, 12 S.Ct. 258, 35 L.Ed. 974 (1891) (quoting Pueblo of San Francisco, 5 Pub. Lands Dec. 483, 494 (D.O.I. 1887)). Contrary to Appellant’s assertion that Knight turned on “a land -sale statute long since repealed,” Br. for Appellant at 37, the cited statute has been incorporated into the Department’s current statutory authorization. Knight, 142 U.S. at 179, 12 S.Ct. 258 (citing Act of Mar. 3, 1849, ch. 108, 9 Stat. 395, 395); see also Part I.A, supra (explaining the legislative and organizational history of the Department). Knight thus makes it clear that the Secretary may take jurisdiction over a land sale, prior to issuing a land patent, to invalidate a defective transaction.

The Secretary’s authority to cancel an invalid land sale extends at least until the issuance of the land patent. “Generally speaking, while the legal title remains in the United States, the grant is in process of administration, and the land is subject to the jurisdiction of the land department of the government.” Mich. Land & Lumber Co. v. Rust, 168 U.S, 589, 592, 18 S.Ct. 208, 42 L.Ed. 591 (1897). The Supreme Court, citing Cameron, later confirmed the Secretary’s authority to cancel a “lease administratively for invalidity at its inception,” even after the lease had been issued. Boesche v. Udall, 373 U.S. 472, 476, 83 S.Ct. 1373, 10 L.Ed.2d 491 (1963) (“With respect to earlier statutes containing no express administrative cancellation authority, this Court, in Cameron v. United States ... found such authority to exist.”). The Secretary’s action here, taken before the patent had issued to Appellant, falls comfortably within the period for her to exercise this authority.

In this case, the Secretary terminated an invalid land sale prior to issuing the patent. As discussed in Part I.A, supra, “[s]ales of public lands ... shall be conducted under competitive bidding procedures” unless certain requirements are met. 43 U.S.C. § 1713(f). The Bureau’s regulations permit a deviation from a competitive public auction only where “the authorized officer determines it is necessary in order to assure equitable distribution of land among purchasers or to recognize equitable considerations or public policies,” 43 C.F.R. § 2711.3-2(a), Here, the Bureau’s published Notice of Realty Action made it plain that the Bureau approved a modified competitive sale solely because of the Agreement between Henderson and Appellant. JA 371 (“Silver State Land LLC and the City of Henderson have developed an agreement that provides for long-term public benefits to the City and local residents.”). As the Bureau explained in its Recommendation Memorandum, “but for the now-terminated Development Agreement ..., the [Bureau] would not have agreed to utilize a modified competitive process.” JA 671. The Bureau also explained that, given the civil settlement’s prohibition on Appellant “engagpng] in any business activities or development activities within Henderson,” JA 676, the public benefits contemplated by the Agreement would not be realized, JA 671. Having recognized this “fatal defect in.the proceedings,” Knight, 142 U.S. at 178, 12 S.Ct. 258—the vitiated public benefits required to deviate from a competitive auction — the Secretary was well within her authority to cancel the sale.

C. The Federal Land Policy and Management Act of 1976

Appellant’s principal argument is that the procedural requirements for public land sales under the Federal Land Policy and Management Act of 1976 supplant the Secretary’s plenary power to terminate an invalid land sale. Br. for Appellant at 14-20, 43-49. Section 203(g) of the Act requires the Secretary to “accept or reject ... any offer to purchase made through competitive bidding ... no later than thirty days after the receipt of such offer.” 43 U.S.C. § 1713(g). “Prior to the expiration of [those thirty days] the Secretary ... may withdraw any land or interest in land from sale under this section when he determines that consummation of the sale would not be consistent with this Act or other applicable law.” Id. (emphasis added). The Department’s regulations parrot the same statutory language. 43 C.F.R. § 2711.3-1(0 (“Prior to the expiration of [the thirty day period] the authorized officer may ... withdraw any tract from, sale — ”) (emphasis added). Appellant argues that the Secretary acted contrary to the statute and regulation by “withdrawing the land from sale” after thirty days. Br. for Appellant at 14.

Appellant is wrong because the Secretary did not “withdraw” the land from sale. And she was not required to follow the timeline prescribed by 43 U.S.C. § 1713(g) when she terminated the sale. As explained in the Recommendation Memorandum, the Secretary “terminate^] the sale process” to Appellant, JA 670; she did not “withdraw any land or interest in land from sale.” There is a legally relevant distinction between these two terms.

The Act defines “withdrawal” as “withholding an area of Federal land from .,. sale ... under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area.” 43 U.S.C. § 1702(j). To withdraw, then, means to withhold the parcel of land.from sale entirely, not to cancel a specific sale to a specific buyer. The Secretary took the latter action. The Bureau explicitly noted in its Recommendation Memorandum that “the parcel remains designated for disposal” and that, the Bureau may “offer[ ] the parcel after such renomination pursuant to the procedures found at 43 C.F.R. part 2711.” JA 672. Because the Secretary did not withdraw the land, she was not bound by the thirty day provision of 43 U.S.C. § 1713(g). Accordingly, Section 1702(j) of the Act does not limit the Secretary’s plenary power. See 43 U.S.C. § 1701(b) (“The policies of this Act shall become effective only as specific statutory authority for their implementation is enacted ... and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law,”).

Appellant cites another provision from the Act, as well as a Bureau regulation, to argue that after Appellant “submitted the remaining purchase price, the Secretary incurred a ministerial duty to deliver the patent.” Br. for Appellant at 34. Appellant cites 43 U.S.C. § 1718, which requires that “[t]he Secretary shall issue all patents ... after any disposal authorized by this Act.” Br. for Appellant at 17. The problem with this argument is that the land sale here would not have been a “disposal authorized by this Act” because the Act authorizes a modified competitive sale only when “the Secretary determines it necessary and proper” to fulfill certain public policy goals. 43 U.S.C. § 1713(f). After Appellant dissolved the Agreement, the modified competitive sale was no longer “authorized” by the Act. Because 43 U.S.C. § 1718 only calls on the Secretary to issue patents authorized by the Act, it did not vest Appellant with any right to receive a patent after transmitting final payment.

In further support of its “ministerial duty” argument, Appellant cites a Bureau regulation providing that, “[ú]ntil the acceptance of the offer and payment of the purchase price, the bidder has no contractual or other rights against the United States.” Br. for Appellant at 34 (quoting 43 C.F.R. § 2711.3-1 (g)). However, as the District Court correctly noted: “This regulation merely delineates when an offeror has no contractual rights, and not when contractual rights do attach. Furthermore, to the extent this regulation may confer any contractual right upon an offeror whose offer has been accepted, the regulation is silent as to what those rights may be.” Silver State Land, LLC, 145 F.Supp.3d at 131 n.14. We agree that the Bureau’s regulation does not eliminate the authority of the Secretary to cancel an invalid land sale after final payment has been transmitted.

D. Appellant’s Arbitrary and Capricious Claim

Appellant argues that the Secretary’s termination of the sale was arbitrary and capricious “because [she] failed to consider relevant factors and [acted] contrary to evidence.” Br. for Appellant at 20. Appellant advances four arguments in support of this claim: (1) the Secretary’s decision turned solely on •unproven fraud allegations against Appellant; (2) the Secretary ignored the Nevada state court’s dismissal of Henderson’s fraud claims; (3) the Secretary failed to cite any of the three bases for withdrawing a sale listed in 43 C.F.R. § 2711.3-1(f)(1)-(3); and (4) the broken Agreement did not justify the termination of the sale. Id. at 21-25. These arguments lack merit.

Appellant’s first two arguments fall flat because they rest on an erroneous reading of. the Recommendation Memorandum upon which the Secretary relied. It is true that the Memorandum cites “questions [that] have arisen regarding Silver State’s intent with respect to [the Agreement] and whether it ever intended to develop the facilities.” JA 671. Appellant fails to recognize, however, that the Memorandum offers additional justifications for recommending termination of the sale. Most importantly,, the Memorandum cites the fact that “the relationship Henderson had with Silver State ... no longer exists as evidenced by the Settlement Agreement.” Id. The Memorandum goes on to explain that “but for the now-terminated Development Agreement .., the [Bureau] would -not have agreed to utilize a modified competitive process.” Id. In other words, the Secretary’s decision did not rise or fall on the existence of Appellant’s alleged fraud. Rather, Appellant’s abrogation of the Agreement, which was the sole basis of the public benefits needed to justify a modified competitive sale, was more than enough to justify the termination.

Appellant’s third argument, that the Secretary failed to comply with 43 C.F.R. § 2711.3-l(f), is incorrect. That regulation only specifies the circumstances under which the Secretary “may withdraw any tract from sale.” 43 C.F.R. § 2711.3 — 1(f) (emphasis added). It is irrelevant whether the Secretary “failed to address any of the three limited bases for withdrawing a sale in 43 C.F.R. § 2711.3-(f)(l)-(3),” Br. for Appellant at 25, because that regulation is inapposite here, as the Secretary did not withdraw the land from sale. See Part II.C, supra (distinguishing withdrawal from termination).

Appellant’s fourth argument — that the dissolved Agreement did not justify the termination of the sale — also misses the mark. Appellant claims that the Agreement “did not guarantee that development of the proposed project would actually occur.” Br. for Appellant at 28; see JA 129 (“[T]he City or [Sports Center] shall have the right to terminate this Agreement.”). This is true, but irrelevant. The Bureau of Land Management approved a modified sale because of Appellant’s proposal to build a major sports complex and bring the corresponding public benefits to Henderson. JA 114. Henderson, in accepting the modified competitive sale, told the Bureau that the stadium development would “help support meaningful economic diversification for southern Nevada.” JA 115. After Appellant pulled out of the Agreement, the Bureau reasonably concluded that the promised public benefits of the project would not be realized. That the Agreement was terminable by either party has no bearing on the Secretary’s decision to cancel the sale to Appellant when the premise for the sale was vitiated.

E. Appellant’s Due Process Claim

Appellant’s final claim is that the Secretary violated its rights under the Due Process Clause because the Secretary “never provided Silver State notice and the opportunity to be heard before withdrawing the Land from sale.” Br. for Appellant at 34. This claim fails both because the Secretary did. not “withdraw” the land from sale and because Appellant never acquired a “protected interest in ‘property’ or ‘liberty.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting U.S. Const, amend. XIV). Appellant repeats its argument that it had an “administrative right to receive the patent [that] vested with its payment of the remaining purchase price into escrow.” Br. for Appellant at 33. For the reasons discussed supra Part II.C, neither- the statute (43 U.S.C. § 1718) nor the regulation (43 C.F.R. § 2711.3-1(g)) invoked by Appellant conferred any property rights on Appellant. We cannot find a Due Process Clause violation here because Appellant never acquired a protected interest in property or liberty.

III. CONCLUSION

For the reasons set forth' above, we affirm the judgment of the District Court.


source: Caselaw Access Project

author: ROGERS, Circuit Judge:

license: Public Domain

text:
    Erik O. AUTOR, et al., Appellants v. Penny Sue PRITZKER, in her official capacity as Secretary of Commerce, et al., Appellees
    No. 16-5037
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 11, 2016
    Decided December 16, 2016
    E. Brantley Webb, Washington, DC, argued the cause for appellants. With her on the brief was Charles A. Rothfeld, Washington, DC.
    Sydney A. Foster, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Michael S. Raab and Charles W. Scarborough, Attorneys.
    Before: HENDERSON and ROGERS, Circuit Judges, and GINSBURG, Senior Circuit Judge.
   ROGERS, Circuit Judge:

This appeal from the denial of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, presents the question whether appellants’ prior appeal effectively secured them prevailing party status.

Appellants filed suit challenging the federal policy barring federally registered lobbyists from serving on the Industry Trade Advisory . Committees. See Request for Nominations for the. Industry Trade Advisory Comms., 75 Fed. Reg. 24,584, 24,585 (May 5, 2010); Pres. Mem. on Lobbyists on Agency Bds. & Comm’ns, 75 Fed. Reg. 35,955, 35,955 (June 23, 2010) (hereinafter “the lobbyist ban”). The district court dismissed the complaint for failure to state a claim. This court reversed, rejecting two of the government’s defenses, and remanded the case for the district court to determine whether the government’s interest in imposing the lobbyist ban “outweighs any impingement bn Appellants’ constitutional rights.” Autor v. Pritzker, 740 F.3d 176, 178 (D.C. Cir. 2014) (“Autor I ”). In so doing, the court noted two considerations for the district court to address on remand. Id. at 184. Appellants contend the court thereby made clear that they would necessarily prevail on remand and therefore they were entitled to attorneys’ fees. Appellants have overread Autor I, because the court acknowledged that on remand dismissal might still be appropriate depending on the district court’s disposition of the, government’s remaining defense. See id. Accordingly, we affirm.

I.

Appellants are federally registered lobbyists who sued the Secretary of Commerce and United States Trade Representative on the grounds that the lobbyist ban violated their rights under the First and Fifth Amendments to the Constitution. Their complaint alleged that the lobbyist ban “attaches an unconstitutional condition on the exercise of the First Amendment right to petition [the government],” Compi. ¶ 49, and “draws an unconstitutional distinction between those who exercise their right to petition the government and those who do not,” id. at ¶ 53. The district court granted the government’s motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and appellants appealed.

This court held that the complaint stated “a viable First Amendment unconstitutional conditions claim,” Autor I, 740 F.3d at 183, and a plausible Fifth Amendment equal protection claim, id. at 184. The court was unpersuaded by thb government’s defenses that its freedom to choose its advisors under Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984), foreclosed appellants’ unconstitutional conditions claim or that the lobbyist ban did not impose an unconstitutional burden on appellants’ First. Amendment right to petition under Lyng v. International Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988). Id. at 181, 183. The court recognized, however, that “[t]he Supreme Court has long sanctioned government burdens on public employees’ exercise of constitutional rights,” id. at 183, and that “the government’s interest in selecting its advisors ... may justify similar restrictions on individual rights,” id. at 183-84. The court remanded the case to the district court to develop a factual record and undertake the balancing of interests analysis set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Id. at 184. In other words, inasmuch as the court was required at that stage of the proceedings to treat the allegations of the complaint as true, see id. at 179, 183; Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), dismissal might still prove appropriate on remand. The court stated that on remand the district court should inquire into the government’s justification for banning federally registered lobbyists, such as appellants, while allowing other corporate employees representing the same companies to serve on the Industry Trade Advisory Committees, and how banning lobbyists from committees otherwise featuring corporate representatives “protects the ‘voices of ordinary Americans.’ ” Autor I, 740 F.3d at 184 (quoting Pres. Mem., 75 Fed. Reg. at 35,955).

In the district court, the parties filed a joint motion for an extension of time and two months later informed the district court of their intention to settle the case or file a schedule for further proceedings. In August 2014, the Office of Management and Budget revised the lobbyist ban to apply only to lobbyists who serve on advisory committees in an individual capacity. See Rev. Guidance on Appointment of Lobbyists to Fed. Advisory Comms., Bds., & Comm’ns, 79 Fed. Reg. 47,482, 47,482 (Aug. 13, 2014), In light of this “policy clarification,” the Department of Commerce issued an amended “Request for Nominations for the Industry Trade Advisory' Committees.” 79 Fed. Reg. 51,552, 51,552 (Aug. 29, 2014). On September 3, 2014, the parties filed a stipulation to dismiss the case, with appellants stating their intention to file an application for attorneys’ fees.

The district court denied appellants’ motion for attorneys’ fees under the EAJA on the ground that the remand in Autor I did not ensure appellants would enjoy a substantive victory, and thus they were not “prevailing parties” under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Autor v. Blank, 161 F.Supp.3d 111, 113, 117 (D.D.C. 2016). Appellants appeal, and our review is de novo. Initiative & Referendum Inst. v. U.S. Postal Serv., 794 F.3d 21, 23 (D.C. Cir. 2015).

II.

The EAJA provides that “fees and other expenses” shall be awarded to the “prevailing party” in a civil suit brought against the United States “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). These “fees” include “reasonable attorney fees.” Id. at § 2412(d)(2)(A). In Buckhannon, 532 U.S. 598, 121 S.Ct. 1835, the Supreme Court interpreted “prevailing party” consistently across multiple statutes, holding that to be eligible for an award of attorneys’ fees in derogation of the “American Rule,” id. at 602, 121 S.Ct. 1835, there must be a “judicially sanctioned change in the legal relationship of the parties,” id. at 605, 121 S.Ct. 1835. The Court rejected the “ ‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing party’ if [the plaintiff] achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 601, 121 S.Ct. 1835, This court has held that “Buck-hannon applies to the definition of ‘prevailing party’ under the EAJA.” Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492 n.1 (D.C. Cir. 2003). It also has adopted a three-part test for determining whether a party has prevailed under Buckhannon; “(1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010) (quoting District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010)) (internal' quotation marks omitted). Appellants do not meet this test,

Appellants seek prevailing party status on the basis that Autor I structured the remand in a way that invalidation of the lobbyist ban was inevitable. Specifically, they point to this court’s “dispositive questions” for which, they maintain, “the government had, and has, no satisfactory answers.” Appellants’ Br. 12. And they maintain that interpreting Buckhannon not to preclude the award of fees in their circumstances is necessary to avoid government manipulation of the Buckhannon rule. Neither contention is persuasive.

Appellants rely on Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), where the court concluded that prevailing parties are those who succeed on any significant issue that “achieve[d] some of the benefit the parties sought in bringing suit.” Id. at 1121 (quoting Tex. State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)) (alteration in original). Although recognizing that a “plaintiff need not prevail on the ‘central issue’ in the litigation,” id. (quoting Tex. State Teachers Ass’n, 489 U.S. at 791, 109 S.Ct. 1486), the court interpreted “ ‘benefit’ to mean something more than an enhanced legal position in a proceeding that ultimately fails to supply any material relief,” id. at 1122. A remand to an agency or trial court for further proceedings generally will not justify an award of attorneys’ fees. Id. at 1122-23. But see SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 836 F.3d 32 (D.C. Cir. 2016), The court acknowledged, however, that attorneys’ fees may be awarded where a remand is structured “such that a substantive victory will obviously follow.” Id. at 1123. Waterman preceded Buckhannon, but this court has since reaffirmed that such a structured remand constitutes a “ ‘court-ordered change in the legal relationship’ between the parties” that can confer “prevailing party” status under Buckhannon. Initiative & Referendum Inst., 794 F.3d at 24 (quoting Buckhannon, 632 U.S. at 604, 121 S.Ct. 1835).

In appellants’ view, Autor I involved the type of structured remand that Initiative & Referendum Institute held satisfied the “prevailing party” test. Id. at 25. “Either the^ [government] would amend its regulation, or the District Court would order it to-do so.” Id. But the remand discussed in Initiative & Referendum Institute came after the court had held the challenged regulation was unconstitutional. Id. at 22-23 (citing Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1318 (D.C. Cir. 2005)). Appellants’ circumstances are not similar. Although Autor I narrowed the grounds on which the government could defend the lobbyist ban, it did not foreclose the possibility that the government could prevail on the merits. The court did not reach the merits of the government’s position “that the lobbyist ban cannot be thought to constitute significant pressure to give up one’s status as a paid registered lobbyist,” stating that doing so would be “premature” given that, at this stage of the case, the court must assume- the allegations of the complaint are true. Autor I, 740 F.3d at 183 (internal quotation marks omitted). And the court declined to undertake the Pickering analysis of appellants’ First and Fifth Amendment challenges because the issues were “unbriefed.” Id. at 184. In these circumstances, appellants’ suggestion that the government would have been unable to present a meritorious defense on remand is mere speculation.

'Regarding manipulation of the Buck-hannon rule, appellants contend that they and others in their position should be treated as prevailing parties because otherwise the government can choose to moot a case just before judgment in order to avoid having to pay attorneys’ fees. In Buckhannon, the Court expressed skepticism over tactical mooting fears, noting the absence of empirical evidence and suggesting the “catalyst theory” could just as well prolong unnecessary litigation by deterring a defendant from voluntarily changing its conduct. 532 U.S. at 608, 121 S.Ct. 1835. “Given the clear meaning of ‘prevailing party’ in the fee-shifting statutes,” however, the Court concluded that it “need not determine which way these various policy arguments cut.” Id. at 610, 121 S.Ct. 1835. Appellants suggest that the test in Buck-hannon was shaped by its facts, where the defendants agreed to stay the challenged directive before any judicial ruling on the merits, and that the Supreme Court’s reasoning supports awarding attorneys’ fees to plaintiffs seeking equitable relief when “the government repeals the challenged law after a court has made rulings related to the illegality of that law.” Appellants’ Br. 21. Further, in appellants’ view, forcing plaintiffs to continue litigating simply to qualify for attorneys’ fees would undermine the judicial policy favoring settlements.

Here, appellants rely on Palmetto Properties, Inc. v. County of DuPage, 375 F.3d 542 (7th Cir. 2004). In that case, the plaintiffs’ claim became moot when the defendants amended the challenged regulation following the district court’s grant of partial summary judgment to the plaintiffs. Id. at 549-50. The Seventh Circuit reasoned that awarding attorneys’ fees in this circumstance was consistent with Buck-hannon because the defendants’ conduct occurred after a judicial determination in the plaintiffs’ favor on the substantive merits of their claim, and the government’s subsequent “action is most persuasively construed as involuntary — indeed exhibiting judicial imprimatur.” Id. at 550. Denying attorneys’ fees in such circumstances “would contradict Buckhannon’s logic, create an inequitable result, and promote inefficiency because plaintiffs who have succeeded on the merits would be encouraged to rush forward with potentially unnecessary litigation, solely to preserve their entitlement to fees.” Id. The court acknowledged, however, that the government was “free to moot the case before the summary-judgment ruling, in which case the action would have been voluntary.” Id.

Palmetto is analogous to Initiative & Referendum Institute, 794 F.3d at 24-25; both cases became moot after a judicial determination for the plaintiffs on the merits of their claims but before the district court had entered a final judgment or order. Appellants maintain their case is similar because all that was left to be done was for the district court to enter a final order memorializing “the clear thrust of’ the remand in Autor I. Appellants’ Br. 23-24. Yet appellants’ case does not fall within this particular “special category of case that is vulnerable to tactical mooting just before judgment.” Appellants’ Br. 20. No judicial determination had been made on the, merits of appellants’ constitutional challenges before the government revised the lobbyist ban. Appellants effectively ask this court to determine both the substantive merits of their challenges in the first instance and inquire whether the government’s revision to the lobbyist ban was involuntary. This is the type of “second major litigation” that courts have been cautioned to avoid in adjudicating requests for attorneys’ fees. Buckhannon, 532 U.S. at 609, 121 S.Ct. 1835 (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

To the extent appellants take issue with the broader impact of Buckhannon on public interest litigation, the Supreme Court viewed this type of argument for awarding attorneys’ fees as falling within the scope of the “catalyst theozy” and, in broadly rejecting that theory, rejected appellants* concerns as well. See id. at 607-09, 121 S.Ct. 1835. Although the plaintiffs in Buckhannon had not secured interlocutory relief on appeal before their challenge was mooted, as appellants did in Autor I, the Supreme Court reaffirmed that “an interlocutory ruling that reverses a dismissal for failure to state a claim ‘is not the stuff of which legal victories are made.’ ” Id. at 605, 121 S.Ct. 1835 (quoting Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). Allowing a plaintiff to “recover attorney’s fees if it established that the complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted” was a “limited form of the catalyst theory.” Id. (internal quotation marks omitted).

This court recently stated as much in SecwrityPoint Holdings, Inc., 836 F.3d 32, in overruling Waterman’s requirement that “to ‘prevail’ a party must obtain a change in the opposing party’s ‘primary conduct,’ such as, in the agency context, ‘relief from a restriction, grant of a benefit, imposition of a restriction on others, etc.’ ” SecurityPoint, 836 F.3d at 37 (quoting Waterman, 901 F.2d at 1122); see id. 35 n.1. The court concluded that Waterman was inconsistent with Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), which held that a remand, by the district court to an agency could constitute a “final judgment” for purposes of a plaintiffs “prevailing party” status if the remand terminated the district court’s jurisdiction over the case. Id. at 37. This type of remand was distinguishable from “interim victories within the federal court system that are insufficient for prevailing-party status, such as withstanding a motion to dismiss or obtaining an interlocutory ruling that reverses a dismissal for failure to state a claim.” Id. at 38 (internal quotation marks and brackets omitted). In the former circumstance, the remand alone is sufficient to confer prevailing party status because the district court had entered a favorable final judgment even though the plaintiff may not ultimately succeed before the agency on remand. Id. By contrast, a plaintiff who obtains the denial of a motion to dismiss has won only the “opportunity to continue pressing his claims in the case originally filed. Such a ruling doesn’t compel the defendant to alter its conduct one whit; it merely means that an attempt to throw the case out was unsuccessful.” Id. “[Ascertaining the prevailing party must await further developments in the case.” Id. át 39.

Appellants’ circumstances do not warrant a different result. Although they “achieved [a] desired result,” Buckhannon, 532 U.S. at 600, 121 S.Ct. 1835, their success in Autor I “lacks the necessary judicial imprimatur’ on the merits of their challenge to the lobbyist ban to secure the status of “prevailing party,” id. at 605, 121 S.Ct. 1835. Because appellants are not “prevailing parties” under the EAJA, it is unnecessary to address whether the government’s position was substantially justified.

Accordingly, we affirm.


text:
    PUBLIC SERVICE COMPANY OF NEW MEXICO, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
    No. 14-1074
    Consolidated with 14-1122
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 13, 2016
    Decided December 20, 2016

      Robin A. Goble argued the cause and filed the briefs for petitioner.
    Micah Jost, Attorney, National Labor Relations 'Board, argued the cause for respondent; On the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, and Douglas Callahan, Attorney.
    Before; HENDERSON and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   ROGERS, Circuit Judge:

The Public Service Company of New Mexico petitions for review of the decision and order of the National Labor Relations Board that it violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). The company challenges three Board rulings, involving the company’s failure to provide the Union with requested information, its unilateral changes to the grievance procedure under the parties’ collective bargaining agreement (“CBA”), and its failure to process a discrimination complaint as a grievance. For the following reasons, we deny the petition and grant the Board’s cross-application for enforcement of its order;

I.

Sections 8(a)(1) and (5) of the National Labor Relations Act (“the Act”) prohibit unfair labor practices by an employer. 29. U.S.C. § 158(a)(1), (5). Section 8(a)(1) provides that it is unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed in Section 7 of the Act. 29 U.S.C. § 158(a)(1). Section 8(a)(5) prohibits an employer from “refus[ing] to bargain collectively” with its employees’ chosen representative. 29 U.S.C. § 158(a)(5). “An employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1).” Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004).

The company is a New Mexico corporation that purchases, produces, transmits, and sells electricity. Of its 1,800 employees, approximately 635 belong to the International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO (“the Union”), which, since the 1970s, has represented a multi-facility bargaining unit of employees in the Electric, Water, Transmission, Distribution, Production, Meter Reader, and Collector departments. Between 2010 and 2011, the Union filed unfair labor practice charges due to the company’s frustrating and impeding the Union’s ability to represent employees. In 2011, the Board found that the company violated Sections 8(a)(1) and (5) of the Act by refusing to furnish the Union with requested information “relevant to. its representative function.” Pub. Serv. Co. of N.M. (“2011 PNM”), 356 NLRB 1275, 1279 (2011), enforced, 692 F.3d 1068 (10th Cir. 2012). In 2014, the Board found the company committed similar and other violations of the Act, Pub. Serv. Co. of N.M. (“SOU PNM”), 360 NLRB No. 45 (2014), and the company petitions for review.

A.

The company challenges three instances in which the Board found that it unlawfully refused to provide 'the Union with requested information. Each request was for information about non-unit employees in connection with pending grievances filed by the Union alleging disparate treatment of unit and non-unit employees under company-wide polices. In one instance, unit employee Marie Plant had been informed by her supervisor that to be absent for a medical appointment she would need to provide a doctor’s note because she had a low paid time off (“PTO”) balance. The Union requested the company provide information on the number of medical appointments for unit and non-unit employees that were scheduled and approved by supervisors, and the names of the employees who were required to provide a doctor’s note to verify a medical appointment. In a second instance, unit employee Robert Madrid was fired after the company claimed he violated state law and the company’s Do the Right Thing policy by disconnecting a gas line, resulting in a leak; The Union, alleging the supervisors were “aware of [the] misconduct and had ample time to investigate and administer discipline if required,” 356 NLRB- at 1277; Email from Ed Tafoya to Cindy Castro (Jan. 7, 2011), requested the company provide information about the discipline (if any) issued to supervisors Dave Delorenzo, Kelly Bouska, and Rex Foss for their.involvement in the gas leak incident. The request as to Delorenzo and Bouska was resolved against the company in the 2011 PNM decision; only the request as to Foss is at issue. Finally, a third instance also involved the termination of a unit employee, this time for failing to comply with the company’s Employee Safety Manual. The Union requested the company provide a list of unit and non-unit employees who had been disciplined or discharged for violating the Employee Safety Manual or other established safety procedures.

The Board adopted the recommendation of the Administrative Law Judge (“ALJ”) that the refusals to provide the requested information, in connection with the pending grievances alleging disparate treatment, violated the Act because employers must furnish requested information concerning the discipline of non-unit employees under company rules that apply to all employees. 20U PNM 1 (referencing ALJ Dec. 43, 44, 46).

B.

In 2011, the company unilaterally implemented three changes to the initial “Informal Step” of the grievance process under the CBA: (1) more than one supervisor was required to be present during the initial meetings; (2) supervisors would proceed with the oral discussion only after union stewards described the grievance with particularity; and (3) supervisors would not sign for receipt of the written grievances after meeting with the stewards.

The Board found that the CBA confirmed that having more than one supervisor present was a change because it refers to only “the immediate supervisor of the grievant” being present at the grievance process’s initial meetings. Id. at 2-3. That change was unlawful, the Board concluded, because, “in conjunction with the other two unlawful changes, it created a new tier in the informal step, further complicating grievance processing.” Id. at 3. “[W]hat was once an informal discussion between the steward and the supervisor is now a more formal and protracted affair.” Id. (quoting ALJ Dec. 15). A majority of the Board concluded that “all three of these changes to longstanding practices created unprecedented procedural hurdles and clearly impeded the processing of grievances.” Id.

C.

Eric Cox, a company employee and union steward for six years, filed a complaint with the Human Resources Department alleging discrimination based on race and union activity. He requested that union agent Ed Tafoya be his union representative during the internal investigation and proceeding. The company bifurcated the complaint into separate racial discrimination and union animus investigations, and informed Cox that Tafoya could neither be his representative nor testify in connection with the racial discrimination complaint.

The Board concluded that regardless of whether the parties characterized the complaint as a “grievance” under Article 10 of the CBA, the company violated Section 8(a)(1)- of the Act by denying Cox his statutory right to a union representative of his choice and by refusing to meet with the Union and Cox regarding the racial discrimination complaint, which was covered by Article 8 of the CBA. 2011 PNM 1 & n.6.

II.

In responding to the company’s petition for review, the court proceeds on the basis that the Board’s factual findings are conclusive if supported by “substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Under this standard, “the Board is to be reversed only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.” Fort Dearborn Co. v. NLRB, 827 F.3d 1067, 1072 (D.C. Cir. 2016) (citing Inova Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015)). The court “owe[s] substantial deference to inferences drawn from the facts ... and, overall, to the reasoned exercise of the Board’s expert judgment,” Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991) (citations and quotations omitted). This deference extends to the Board’s interpretation of its precedent. Ceridian Corp. v. NLRB, 435 F.3d 352, 355 (D.C. Cir. 2006).

Because Congress has determined that the Board has “the primary responsibility of marking out the scope .., of the statutory duty to bargain,” Ford Motor Co. v. NLRB, 441 U.S. 488, 496, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979), “great deference” is due to the Board’s determi nations of the scope of an employer’s obligation to provide requested information to a union and of the unilateral change doctrine, as both derive from the statutory duty to bargain. Crowley Marine Servs., Inc. v. NLRB, 234 F.3d 1295, 1297 (D.C. Cir. 2000) (quotation omitted); see also Ford Motor Co., 441 U.S. at 496, 99 S.Ct. 1842. On the other hand, the court reviews the Board’s interpretation of collective bargaining agreements de novo. Util. Workers Union of Am., Local 246 v. NLRB, 39 F.3d 1210, 1216 (D.C. Cir. 1994).

A.

“There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). So long as the information is “relevant to the union’s representational functions,” the employer is obligated to provide it upon request. Oil, Chem. & Atomic Workers Local Union No. 6-418 v. NLRB, 711 F.2d 348, 357 (D.C. Cir. 1983); see N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011). This standard is in keeping with the observation in Acme Industrial Co. that a “liberal standard as to relevancy” decreases the burdens and expense of resolving labor conflicts by providing the union with an opportunity to evaluate the merits of a claim without forcing it to “take a grievance all the way through to arbitration.” 385 U.S. at 437 n.6, 438, 87 S.Ct. 565.

The company contends that the Board departed from well-settled precedent in finding that it violated Section 8(a)(5) and (1) in three instances when it denied Union requests for information about non-unit employees. Maintaining that “[a] union’s bare assertion” it needs such information does not oblige the employer to provide it, Pet’r’s Br. 28 (citing N.Y. & Presbyterian Hosp., 649 F.3d at 730), the company points to the Board’s discovery-type standard under which the company is required to provide requested information only'if the information is of probable or potential relevance, id. at 28 (citing N.Y. & Presbyterian Hosp., 649 F.3d at 730). Because information regarding non-unit employees is not presumptively relevant, see Oil, Chem. & Atomic Workers, 711 F.2d at 359, a union must demonstrate “a reasonable belief, supported by objective evidence, that the requested information is relevant,” Pet’r’s Br. 28-29 (quoting Disneyland Park & Disney’s Cal. Adventure, 350 NLRB 1257, 1257-58 (2007)), which the company maintains requires evidence “external to its own subjective impressions,” id. at 29 (quoting NLRB v. B.A. Mullican Lumber & Mfg. Co., 535 F.3d 271, 280 (4th Cir. 2008)). The company asserts that the Union neither presented “sensory observations” nor conducted an investigation that had given rise to a reasonable suspicion of disparate treatment, and therefore was not entitled to receive the requested non-unit employee information. Id. at 31-32.

The company appears to view the Board to have ruled that the requested information was relevant solely because the information related to employee-wide policies. E.g., Pet’r’s Br. 30, 31. This ignores that the Board’s determination was made in the context of pending grievances alleging disparate treatment of unit and non-unit employees under company-wide policies, as its cited precedent underscored. It cited 2011 PNM, where the company’s refusal to provide information about supervisors De-lorenzo and Bouska violated the Act because the information concerned policies “equally applicable to each of [the company’s] bargaining unit and non-bargaining unit employees” and was “necessary ... for the Union’s processing of a [disparate treatment] grievance.” 356 NLRB at 1279, 1280. It also cited Postal Service, 310 NLRB 391 (1993), where the Service’s refusal to. provide information about two non-unit employees whom witnesses claimed had routinely been late for work violated the Act because the request was connected to a grievance filed on behalf of a unit employee disciplined for tardiness. The Board ruled the requested information was relevant “[bjecause supervisors and employees were subject to the same time and attendance rules, [and] information that supervisors were tardy arguably could show disparate treatment which would be of use to the Union in processing the employees’ grievances.” Id. at 392. And the Board cited Postal Service, 301 NLRB 709 (1991), where the requested information about supervisory discipline was deemed relevant because the information concerned the Service’s policies that “applied] equally to supervisors and unit employees,” and was “necessary to the Union’s [pending grievance] to show that [a unit member] was treated in a disparate manner.” 301 NLRB 709, 711 (1991).

To the extent the company maintains the Union was engaged in a “classic fishing expedition” because it presented no evidence to demonstrate “reasonable suspicion that disparate treatment had occurred,” Pet’r’s Br. 31, the company’s reliance on B.A. Mullican Lumber & Mfg. Co., 535 F.3d 271, is misplaced. That case addressed the standard for an employer to withdraw recognition of a union, id. at 277, and did not assess the relevance of requested non-unit employee information. The Board has long rejected the company’s approach. In Holiday Inn on the Bay, 317 NLRB 479 (1995), the Board explained that a union is not required to have evidence of disparate treatment in order to be entitled to receive information relating to that disparate treatment. There, after filing a grievance alleging disparate treatment of non-unit employees who were terminated for leaving a cash register unattended, the union requested “all [disciplinary] documents issued to front desk personnel Union and nonunion for similar infractions from January 1993 forward.” Id. at 480. The Board ruled the employer’s refusal to provide the information violated Sections 8(a)(1) and (5). “[C]omparative discipline is one area where information pertaining to nonunit employees, ... [is] necessary to performance of the [union’s] function” and would “provide the Union with a basis ... that [unit employees] had been harshly, unjustly or disparately treated.” Id. at 481 (internal citation omitted). Similarly, in Postal Service, 289 NLRB 942 (1988), the Board ruled the union was entitled to receive requested information about the discipline of supervisors accused of gambling “because the gambling prohibition ... applied] to both” unit and non-unit employees and the union had filed a grievance alleging that unit employees were “disparately treated” under that policy. Id. at 943. Earlier still, the Board explained “[i]t is not necessary, as [the employer] appears to suggest, that the Union demonstrate actual instances of contractual violations before [the employer] must supply information.” Doubarn Sheet Metal, Inc., 243 NLRB 821, 824 (1979).

The company relies primarily on the 1993 Postal Service case where the Board stated that “the burden of demonstrating relevance is not carried by a showing of a common disciplinary standard and a mere suspicion that there may exist some evidence of supervisory misconduct similar to that involved in the grievance.” 310 NLRB at 702 (citation and quotation omitted). The context of the Board’s statement limits its applicability, however. There, a “class action grievance” had been filed after a unit member received a notice of removal “for failure to report to work as scheduled,” id. at 701, 702, and the union requested the leave records of nineteen supervisors and records of any disciplinary actions taken against them for leave abuse. Id. at 702. Unlike the unit employee who was disciplined for “five instances of unexcused day-long absences,” id. at 702, there was no basis to believe these supervisors had violated the company’s leave policy, and it was therefore not readily apparent that the supervisors were similarly situated to the grievant. The Board stated the union must show something more than a “mere suspicion” the supervisors engaged in tardiness or absenteeism. Id. at 702. Because the union adduced only statements of unnamed union members that they had observed “prolonged absences” by these supervisors, the Board dismissed the allegation. Id. at 703.

By contrast, here, the Union did more than present a “bare assertion that it needs information to process a grievance.” Detroit Edison Co. v. NLRB, 440 U.S. 301, 314, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979). It tied its requests to company-wide polices and requested information about non-unit employees who were similarly situated to the unit employee in an attempt to determine whether, as the grievances alleged, there had been disparate treatment by the company based on union membership. The Union neither sought information about non-unit employees for whom the company had not applied its policy nor sought information that would disclose extraneous information, such as the application of different policies not grieved. The Board had no occasion to determine whether each of these circumstances , was necessary to establish, relevance for non-unit information, But the Board’s ruling that the company’s failure to provide the requested information violated the Act was supported by well-established Board precedent.

B.

An employee grievance procedure is a “mandatory subject! ] of bargaining” under Section 8(a)(5) of the Act. St. Agnes Med. Ctr. v. NLRB, 871 F.2d 137, 145 (D.C. Cir. 1989) (citing Ind. & Mich. Elec. Co., 284 NLRB 53 (1987)); 29 U.S.C. § 158(a)(5). Section 8(d) of the Act describes the duty to bargain as the mutual obligation to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. An employer violates Section 8(a)(5) where, in the absence of a final agreement or impasse, the employer “unilaterally imposes changes in the terms and conditions of employment,” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 347 (D.C. Cir. 2011) (quoting TruServ Corp. v. NLRB, 254 F.3d 1105, 1113 (D.C. Cir. 2001)), when those changes are “material, substantial, and significant,” S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1357 (D.C. Cir. 2008) (quoting Alamo Cement Co., 281 NLRB 737, 738 (1986)). Such unilateral changes derivatively violate Section 8(a)(1). 29 U.S.C. § 158(a)(1); see Wayneview Care Ctr., 664 F.3d at 347 n.1 (quotation omitted).

The company contends that it was entitled, without bargaining with the Union, to implement the three changes to the Informal Step of the grievance process— requiring a second supervisor to attend the initial meetings, requiring grievances to be described with particularity prior to any oral discussions, and instructing supervisors not to sign for receipt of written grievances after meeting with union stewards. Challenging the Board’s interpretation of the CBA and the Board’s findings on the parties’ past and present practices, the company maintains that rather than “hid[ing] the ball until after oral discussions break down,” á plain reading of Article 10 of the CBA envisions a meaningful interactive process during the Informal Step and requires the grievance to be explained with particularity ■ at the outset. Pet’r’s Br. 35. To the extent a second supervisor’s presence was a change, the company maintains it was not - material, substantial, and significant because no evidence showed the change delayed or prevented a grievance from being addressed. Id. at 38-39. The company takes the same position with regard to its two other changes, id. at 39, and it maintains the Board improperly lumped together unrelated events in concluding the changes were material, substantial, and significant, id. at 40.

Article 10 of the CBA sets forth a three-step grievance process. The initial “Informal Step” involves a meeting between the employee, the employee’s immediate supervisor, and a union steward if the employee requests one. The parties are to “attempt to adjust the grievance informally.” If the grievance is not adjusted to the satisfaction of the grievant after an oral discussion, the grievance “shall be reduced to writing, on appropriate forms,” where it must include a statement of the grievance and identify the CBA provision at issue, all involved employees, and the remedy sought. Article 10 does not expressly state whether the formalities associated with written grievances also apply to the initial oral discussions. The company’s interpretation that the formalities apply to both may be plausible, but the Informal Step is “reasonably susceptible of different constructions or interpretations.” Ameren Servs. Co. v. FERC, 330 F.3d 494, 499 (D.C. Cir. 2003) (quoting Consol. Gas Transmission Corp. v. FERC, 771 F.2d 1536, 1544 (D.C. Cir. 1985)). The sequencing contemplated by Article 10 — the grievance “shall first [be] take[n] up ... orally” and is “reduced to writing” if it “is not adjusted to the satisfaction of the griev-ant,” — is reasonably understood to impose different, more demanding formalities for a written grievance than for the initial oral meetings. Under the circumstances, “[a]n employer’s ‘past practice’ can become ‘clearly established as a term and condition of employment’ subject to the duty to bargain.” Int’l Bhd. of Elec. Workers Local 1466 v. NLRB, 795 F.2d 150, 153 (D.C. Cir. 1986) (quoting Office & Prof'l Emps. Int’l Union, Local 425 v. NLRB, 419 F.2d 314, 321 (D.C. Cir. 1969)).

The Board’s finding that the parties had a longstanding practice of conducting the Informal Step with a high degree of informality is supported by substantial evidence. 20H PNM 2. The parties’ history indicates that at the outset of the grievance process, a single supervisor met with the employee and a union steward to discuss the. grievance and determine whether it could be satisfactorily resolved. Various witnesses, including a company .director, described the Informal Step as beginning by simply “talking] through” the issue. Tr. 595 (Nov. 17, 2011); see Tr. 162 (Nov. 15, 2011); Tr. 221 (Nov. 16, 2011); Tr. 926-29 (Jan. 18, 2012); Tr. 1035, 1058 (Jan. 19, 2012). Collectively, these witnesses confirmed that union stewards did not present the written, grievance to the supervisor until after an oral discussion of the grievance took place and the supervisor was unable to provide a satisfactory resolution.

By contrast, beginning in the summer of 2011, a second supervisor began attending the Informal Step at the outset and supervisors would no longer engage in oral discussions unless stewards had described the grievance with particularity, “line by line and article by article.” Tr. 220-24, 266, 403 (Nov. 16, 2011); see Tr. 107 (Nov. 15, 2011); Tr. 439, 447 (Nov. 17, 2011). Company supervisors also began refusing to sign for and certify Informal Step grievances for Step Two of the grievance process. Tr. 39-44 (Nov. 15, 2011); Tr. 356-56, 403-05, 410, 412 (Nov. 16, 2011); Tr. 910-11 (Jan. 18, 2012). In some instances, stewards were then required to file the same grievance for a second time, see Tr. 356 (Nov. 16, 2011), and in other instances, the company-supervisor’s refusal to sign and certify a written grievance for Step Two rendered the grievance untimely. Tr. 45-46 (Nov. 15, 2011); Tr. 274, 319, 403-05, 413 (Nov. 16, 2011).

Substantial evidence also supports the Board’s finding that the company’s changes to the CBA grievance process were “material, substantial, and significant” and thus violated Section 8(a)(5). 2014 PNM 2-3. “[W]hat was once an informal discussion between the steward and the supervisor is now a more formal and protracted. affair.” Id, at 3 (quoting ALJ Dec. 15). Under Board precedent, a unilateral change to who attends a grievance meeting can itself be a significant enough change to violate Sections 8(a)(1) and (5). See Barnard Coll., 340 NLRB 934, 944-45 (2003). So too an employer’s refusal to process a grievance. See, e.g., Majestic Towers, Inc., 353 NLRB 304, 313 (2008). And the Board majority reasonably explained that it was appropriate to consider the cumulative effect of these three changes even though the complaint listed each change as a separate violation. 2014 PNM 3 n.10; id. (Member Johnson, dissenting in part). Not only did each change relate to the Informal Step, but they were all implemented at the same time and by the same document, prepared by a consulting firm (“Informal Grievance Guidelines for Supervisors”). The Board therefore properly considered them “in the context of the complaint as a whole.” In re Morrone, 340 NLRB 1196, 1199 (2003).

C.

The company’s third challenge to the 2014 PNM decision is a non-starter. Article 8 of the CBA incorporates all federal and state prohibitions against racial discrimination, and the parties’ past practice makes clear that .union business agents have represented unit members in disputes.arising under the CBA. The company does not contest that it forced Cox to forgo union representation- in his racial discrimination complaint, after requiring, over the objection of- Cox and the Union, bifurcation of his race and union animus complaints..

Although Article 10 of the CBA provides that “any employee may request the presence of a Union steward to represent the employee in the grievance,” it also requires a.grievant to present his grievance to his supervisor no later than 15 days- after the alleged wrongdoing occurred. The company maintains that Cox did not follow these requirements, a failure which it views to strip Cox of his representation right. The Board maintains the court lacks jurisdiction to address this contention because the company never presented it to the Board, see 29 U.S.C. § 160(e), but we are satisfied that the Board had “adequate notice of the basis for the. objection,” Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999). For instance, in its Reply Brief in Support of Exceptions at 5, the company invoked the grievance procedure in stating: “If Cox had initiated the CBA’s grievance process in connection with his complaints, then Cox would have been unquestionably entitled to Union participation in the process.” Nonetheless, the company’s challenge fails.

The Board finessed the question of whether the ALJ properly characterized Cox’s racial discrimination complaint as a “grievance” under Article 10, ruling that such characterization did not “affect [the] disposition of this allegation.” 2014 PNM 1 n.6. Evidence showed that the company’s past practices allowed Tafoya and other union business agents to represent unit members in any dispute “encompassed under” the CBA, id. regardless of whether the underlying complaint could technically be characterized as an Article 10 “grievance.” Cf. Int’l Bhd. of Elec. Workers Local 1466, 795 F.2d at 153. Ample undisputed evidence showed that it was customary to have union business agents,- such as Tafoya, represent unit members in HR investigations that concern a provision of the CBA, such as Cox’s racial discrimination complaint, even though such investigations are not governed by Article 10’s procedures. Tr. 71-72 (Nov. 15, 2011). Similarly, union business agents would regularly represent unit members in “grievances” that were governed by Article 10. Tr. 31-32 (Nov. 15, 2011); Tr. 506 (Nov. 17, 2011). The Board therefore correctly concluded that the label attached to Cox’s racial discrimination complaint did not deprive him of his right to representation by a Union agent.

Finally, the company’s attempt to argue that its violations for unilaterally restricting union agents’ access to its Edith Service Center and San Juan Generating Station are moot in light of its agreement to restore the agents’ access to those facilities, Pet’r’s Reply Br. 4-5, is doubly flawed: the argument is first raised in the company’s reply brief without explanation, see, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C. Cir. 2010), and an “employer’s compliance with an order of the Board does not render the cause moot,” NLRB v. Mexia Textile Mills, 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067 (1950).

Accordingly, because the Board is entitled to enforcement of the unchallenged violations, see Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 418 (D.C. Cir. 1996), and of its Order remedying them, Allied Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 765 (D.C. Cir. 2012), we deny the petition for review and grant the Board’s cross-application for enforcement of its Decision and Order.

      . The company never suggested to the Board that it should have deferred ruling on the contract questions until they had first been pursued by the Union pursuant to the CBA’s grievance and arbitration procedures. See, e.g., Hammontree v. NLRB, 925 F.2d 1486 (D.C. Cir. 1991); Collyer Insulated Wire, 192 NLRB 837 (1971). We express no opinion on whether deferral would have been appropriate here,