show brought these suits seeking judicial review of the agency action but the agency is not a party to either case instead what shall did is it brought a case involving parties without any potential liability to each other including parties who would not otherwise have been in front of the court and claims that would not otherwise have been adjudicated and it left out the only proper between parties to potential litigation yes your honor the test is whether there has to be potential liability there is broad general language in some of the supreme court of this court's jurisprudence but if you look at how that language has been applied over the plaintiff always has to have potential liability and will you tell us about the course of the cases that you have found that support that view yes your honor there are four circuits including this one that have addressed this issue let me start with this court's own jurisprudence there's a case called bluff and metals versus par richmond in which part of richmond terminal it was a dispute over a contaminated site and the question was over who was responsible for the cleanup costs and par richmond terminals brought it to clear it for a judgment action against three defendants saying we have no liability asking for a judgment that it had no liability for cleanup  whether they could be joined as into the indispensable parties under rule nineteen of rule twenty and that analysis that indispensable party analysis would not have been necessary if those defendants who had no potential claim against part richmond could have been joined as declaratory judgment  defendants in first place the federal circuit has reached a very similar conclusion in a series of what we call customer cases the most recent of which is data turn which we call to the court's attention in a recent rule twenty eight chain letter those cases basically say that where you have a manufacturer whose customers being threatened with suit are being sued by a patent holder the manufacturer can only sue the patent holder if the manufacturer itself has potential liability either for director contributory infringement or it's the indemnity of the customer where that doesn't exist where there is no liability there's no justiciable case and controversy under  and then we've had already had extensive briefing on colin county which is the fifth circuit decision the parties going back and forth about whether the fact that the defendant there could intervene i mean serve the plaintiff there could have intervened in the course of suit made a difference i can't imagine what possibly would be enough to allow a non federal defendant to step in the shoes the department of justice and try to defend an administrative decision and that brings us to a fundamental problem this the only basis for jurisdiction here is a potential claim under the administrative procedure act that's a claim that the citizen groups may have against the united states but they do not have against shell and shell doesn't have a claim under the administrative procedure  interests for purposes of the declaratory judgment act that's correct your honor this court has a very liberal intervention standard i don't concede that it's necessarily clear that shell could intervene among other things to intervene as of right it would have to demonstrate that the united states does not adequately represent its interests which poses the interesting problem of why shell thinks that it can adequately represent the united states interest in defending administrative procedure and playing but putting that aside you don't need the requirements intervene in the circuit other circuits would require that and when congress adopted the administrative procedure act in one thousand nine hundred sixty it's been a lot of time a lot of time thinking about how to structure judicial review of agency actions it said that the that the case has to be brought by an aggrieved party it has to be resolved on an administrative record that the agency develops it has to be decided based on the rationales provided by the agency and the remedy that can be granted in that kind of case is an order vacating the agency's decision and reminding it congress did not authorize any private litigation under the administrative procedure out in the seventy sixty years since that was adopted no court has ever allowed private litigation under the administrative procedure act what to shell's attempting here is a work around around the structure that congress very carefully adopted each of the features of the administration procedure a requires the government's participation and for good reason if shell could be defending the government's actions without the federal agencies participation show might make concessions or take positions that the agency would agree with shell doesn't understand from the inside the agency's rationales for its decisions so what shell is asking this court to do is to adopt to allow a kind of litigation that no court ever in the history of the administrative procedure actions outside the presence of the agency it would also allow it would open the doors to an entirely new type of litigation and i shall says look our circumstances are unique we had this major investment  the quick decision companies make investment decisions based on agency actions all the time shell's theory doesn't just apply when a agency issues a permit to a single company sh theory would also apply when an agency issues a rule for national application for which there may be thousands or tens of thousands of companies that are beneficiaries in which there might have been critics on the draft of the proposal those critics might have resorted to the courts sometimes in the past and other shells theory all of those beneficiaries or any of them could bring an action without the presence of the united states without the federal agency against the critics and  of the bureau's actions let me ask that i answer that in a in a general way and then specifically to this case this court has held in the mostly decision defendants had actually already sued the united states over the same claims i don't want to get bogged down in the allegations of shells complaints but if you read the complaint very carefully it actually does not allege that at the time shell suit any of the citizen groups had actually threatened to sue over these agency actions or with one very minor exception that i'll mention that any of them that actually even criticize the final agency actions the exception is that one of the in the spill plan case one of the many defendants had on the day the decision issued said well he could still be taken to court but not all of them now if you look at what sh alleged what shell is alleged is that the citizens of exercise their rights to petition the government and speak out in the press in the past for chile every every statement they attribute to the citizen groups was made before the spill plan or the harassment authorizations was finalized many of them were made before those documents were even in draft form it's true that the citizen groups commented on the criticized drafts of those documents but this is what the administrative rule making and  this trade of procedure act process is about agencies issue drafts of public comments the agency responds to those comments and makes appropriate adjustments hopefully resolving controversies rather than creating them and under shells theory what we have is if you're a citizen and you wish to comment and you sometimes resorted to the courts and other cases in the past though not all and in fact not most of the opportunities one would have had a chance to do that if you want to sometimes use order to the court in the past suddenly one c dragged into court and forced to defend oneself even if one would never have brought that case in the first place that is a deeply chilling effect on public participation and participation in the rule making process before you run at a time when make sure that you have  some time for a battle do you want to quickly tress whether there's a potential issue with regard to the voluntary dismissal your honor i don't want to spend time on that for this reason i think the citizen groups would get all the relief they wanted the morning your honour's and may have please the court my name is kathleen sullivan and i represent the shell parties in this case your honour's this declaratory judgment action was entirely proper there was properly you're asking for something that really hasn't been done before ever be a potential defendant no your honor shall can't be sued under the a p a and the proper course if the ngos want to bring suit under the a p a is for them to sue the federal agency but to answer judge nelson's question earlier yes of course the us could have brought a declaratory judgment action in the face of repeated repeated efforts to litigate against the government's approvals of the arctic drilling and that actually proves the point your honor that a declar atory judgment defendant need not to go to a judgment plaintiff need not be potentially liable to the other party in order to there for there to be adverse legal interest so just to go back your honor i don't think we're pushing the envelope so let me just give you two simple examples of how this kind of declaratory judgment action should seem familiar even without liability between the parties let's take the case of a contract where the two contracting parties haven't suit each other yet for breach but a third party beneficiary wants to bring in declaratory judgment action saying excuse me on the third party beneficiary here i'm not going to be liable for breach but i would like a declaration of return on breach so that i know my rights on both sides my question is what is you accomplish by this lawsuit you filed in february of two thousand and twelve in july of two thousand and twelve the environmental groups he man but while that action was pending couldn't those groups i mean the drilling says his during summer it's very late if you look judge the district court in his thoughtful opinion result of the a p a action there he didn't need to resolve the merits of the tory judgment claims but we did accomplish something important and your honor in answer to your question are we pushing the envelope and opening up the floodgates the answer is no this is extremely narrow set of circumstances in which the intervenor and your honor it's very important as you emphasized that shell here has legal interests at stake not just bystander indirect economic interest at stake it has it is the proponent of the plan subject to the agency's approval it is the lease holder as to which the plant appl is therefore entitle to be an intervenor as of right and the ngos do not oppose shell's intervention in the a p a case so this is a very narrow circumstance where we're talking about the legal interests of an intervenor number one number two your honor judge nelson as you point out this is a case in which the time frame matters the effort here on shelves part faced with a barrage of repeated lawsuits which we document in footnote one of the red brief tried to get out a head of the a p a action to try to advance the judgment on the merits sooner it's not shells fall judge hudson that we didn't get a judgment on the merits sooner the ngos did everything they could to barrage us with motion practice dismissal motions this repetitive dismissal motions and efforts to certify to the circuit so we what we were seeking and what if you affirmed the district court with respect to its history clarity or a judgment ruling is denial of the motion to dismiss what we gain from that is the potential to simply advance the litigation in time we're it's a very narrow class of potential plaintiffs intervenors not everybody who's subject to a federal where there's a very narrow window of time in which temporal advancement of the cause of action to an earlier time matters and in which above all there's been a relentless litigation history this is not just a case in which we are responding with there's no doubt that in shell's perspective shell could be thinking well there's potential litigation here and if litigation occurs shall would be adversely affected and the consequences some potentially severe as to shell but when you're talking about adverse legal interest in looking at the and so and so i know that you were saying well you don't need potential liability to have adverse legal interests my question to you is is there any authority for the proposition that after sneakily interests can be asked to parties who are not potential defendants because if there's potential litigation the government is the only one who's at risk of being sued by the environmental groups not shall so how do you look at the term adverse legal interest in the wee small apprehension of litigation that's required for the purposes of this case and where to shall come into your honor let me separate out two different parts of your question first as to adverse legal interests air point is that adverse legal interest between the declar atory judgment parties may include potential legal liability to one another but that is not required in other words there is more ways in which there can be legally adverse interests between the declaratory judgment parties and being liable to one another i gave you one example already third party beneficiary to a contract has a declaratory judgment right to ask whether the contract should be enforced for its benefit even though it isn't going to be liable to the part the second example pat declaratory judgment suits can be brought by a manufacturer or a supplier against the patent holder to declare a patent say invalid or not infringed even though the  plaintiff is a contract obligations there may never be a lawsuit about indemnification but he's legal the manufacturer is legally adverse to the extent they may be contractually liable to intensify so our position here is that an intervenor has a like the patent declaratory judgment plaintiff who isn't itself going to be liable that may have to add indemnify a third party against the declaratory judgment defendant so it's legal legally your honor i think judge when you said at the outset the test is not liability the test for is adverse legal interests and adverse legal interests here exist because shell is the real party in interest is the proponent is the owner of the lease hold course if if we prevail it's because of as too n p o a p a suits on the claims that are raised in the litigation or any that could have been brought if the defendants prevail with respect we think it has no effect no binding effect on the us agency as i think my colleagues parade of horribles about the bad effects on the us is misplaced a declaration that that to clients a declaration that declines to say the plan is valid leaves the n perfectly free to bring an a p a action against the u s and say they would have to do that it would your honor exactly so there's a and that's why this is not an advisory opinion it's not an advisory opinion because of course it's because of if we when and it doesn't prevent them from being imminent apprehension of litigation a real apprehension of imminent litigation which we did and the judge reviewed the litigation history here and found it real that intervenor party may bring a declaratory judgment action seeking a declaratory judgment on whether the agency action to approve a plan of which the interviewer is a proponent is valid so i would limit it to intervenors and a case of relentless litigation history that gives a real apprehension of litigation around to us really two questions there's an adverse legal interest here and there's a strong practical likelihood of litigation your honor that wasn't very succinct if i could try to get more and the government is not in the picture director on that's how does that work in practice the litigation process the government is nowhere in sight number of ways your honor first of all all of the materials in the administrative record can be obtained by subpoena under rule forty five or three or four requests obviously second the court can ask the united states to prepare a statement of interest or otherwise cooperate with the investigation so all of the substan materials needed to read review that the adequacy of the administrative record can be recreated in the declaratory judgment action that's that but those practical case management details really don't go to the question before you which is is there subject matter we respectfully request that you affirm the judgment and so far as it is the judge below declined to dismiss our declaratory judgment action and this will develop over time and again this is it will develop over time we can't see how this case management will happen unless you are firm and let us try but the point here is that this is a narrow set of circumstances that is unlikely to be often repeated intervenor real likelihood of litigation short timeframe demonstrated litigation history and asked in our pennington i just want to be clear that that's not a back up argument for the ngos although they didn't emphasize it because nothing about our lawsuit is seeking a declaration with respect to the petitioning activity those were not like a case where we're saying rico because you sent a pretty litigation demand letter as in your sosa case this is not a case where somebody goes to the end albion's n l r b and says oh unfair litigation practice because of your lawsuit that's  agency approval has nothing to do with the petitioning activity as part of the cause of action so there's no nor pennington bar so we respectfully submit you should affirm here you should know that the district court's discretion over declaratory judgment is a fall back  proliferation of these lawsuits you can see from the fact that the agencies was sued in this case just as shell predicted that our apprehension of in here was real and imminent and with respect we suggest that the practical problems are not really be fore you because all that is before you is this niall of the motion to dismiss for lack of jurisdiction or lack of the cause of action and on twelve the one in twelve the six shell should prevail and how it would work your honor is subpoena request government statements of interest and the district work and work it out as he goes obviously the n g s can narrow the discussion in the declaratory judgment action by saying what the reasons why they think the agency approval is invalid a to which the c i s attached the county was and the county wasn't an intervenor so in fact your honor if you look at the fifth circuit decision the fifth circuit actually described the county as a stranger to the litigation between the it haven group and the government a stranger to litigation shell by contrast is the real property and real it has the is the the the real person and interest in the case so to speak it is the proponent of the leasehold it action having been voluntarily dismissed under forty one and two in the district court means that the n p s got what they wanted in terms of the judgment and they're not agree so there's no appellate case or controversy before you and if you have any doubt about that you should simply affirm the forty one could bring that case sooner to avoid that liability that is a distinction that is wise throughout this courts and the supreme court's decisions here show it shows problem is not one of time t own conduct in this case demonstrates that the problem wasn't one of timing that the problem is that shell does not have a cause of action and the citizen groups don't have any cause of action under which shell can be held liable the a p a just doesn't allow that kind of a claim between private litigants and the situations that show identified for example a third party beneficiary the third party beneficiary has a legal claim in the customer cases the  in fact if the citizen groups were to sue the federal government shell would not even be a necessary party to that litigation so why didn't show wait it got all the relief it wanted by intervening in citizen groups case now it says the citizen groups will rush into court and seek an injunction but there's absolutely no history of that in their complaint and for good reason the citizen groups don't benefit by waiting to last minute and seeking a preliminary injunction because it's far harder to get a preliminary injunction than it is to me it was you know that if you think so no i don't your honor with all due respect there is no history of the citizen group both in sosa versus direct t v and in franchise realty closing sentence because i see that i'm out of time show has a problem with the net that of judicial review that congress set up in the administrative procedure act congress was very careful about how it decided to allow that and it did not allow private causes of action shows should take its concern with that structure to congress instead it's asking this court to make an end run around the administrative procedure act for which there is no are calling the next case on the court's calendar is alaska wilderness league versus jewel with shall as the intervenors thirteen dash three five eight six six