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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2008 Decided February 19, 2008

No. 07-5060

P & V ENTERPRISES, ET AL.,

APPELLANTS

v.

U.S. ARMY CORPS OF ENGINEERS, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01579)

John A. Hodges argued the cause for appellants. With him

on the briefs were Eric S. Andreas and Andrew M. Miller.

Anna T. Katselas, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Katherine W. Hazard and Eileen T. McDonough, Attorneys. R.

Craig Lawrence, Assistant U.S. Attorney, entered an

appearance.
2

1

 As defined by the Corps, the term “waters of the United

States” includes, but is not limited to, the following: 

waters such as intrastate lakes, rivers, streams (including

intermittent streams), mudflats, sandflats, wetlands, sloughs,

prairie potholes, wet meadows, playa lakes, or natural ponds,

the use, degradation or destruction of which could affect

interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign

travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken

and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial

purpose by industries in interstate commerce . . . .

Before: ROGERS and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

 

ROGERS, Circuit Judge: The issue on appeal is whether the

U.S. Army Corps of Engineers (“Corps”) reopened

consideration of a 1986 rule such that the district court erred in

dismissing a facial challenge to the rule as untimely under 28

U.S.C. § 2401(a). We affirm.

I.

Section 404 of the Clean Water Act (“CWA”) authorizes

the Corps to regulate the discharge of dredged and fill material

into “navigable waters,” which are “the waters of the United

States, including the territorial seas.” 33 U.S.C. §§ 1344,

1362(7). In 1986, the Corps promulgated a definition of “waters

of the United States.”1

 51 Fed. Reg. 41,210, 41,216-17, 41,250
3

33 C.F.R. § 328.3(a)(3). Although Environmental Protection Agency

has promulgated a comparable definition, see 40 C.F.R. § 232.2, and

joined the Corps in issuing the 2003 statements that we discuss infra,

because it is not an appellee, the opinion refers only to the Corps.

(Nov. 13, 1986) (codified at 33 C.F.R. § 328.3(a)(3)) (“the 1986

rule”). In 2001, the Supreme Court held that the Corps had

exceeded its authority under section 404(a) in promulgating the

Migratory Bird Rule as applied to “an abandoned sand and

gravel pit.” Solid Waste Agency of N. Cook County v. U.S. Army

Corps of Eng’rs (“SWANCC”), 531 U.S. 159, 174 (2001).

Because that rule raised “significant constitutional questions” by

“invok[ing] the outer limits of Congress’ power” under the

Commerce Clause, the Court held that “a clear indication” of

Congressional intent was required and there was none. Id. at

172. 

In January 2003, the Corps issued an Advance Notice of

Proposed Rulemaking (“ANPRM”), 68 Fed. Reg. 1991 (Jan. 15,

2003). Its summary section stated: 

Today’s ANPRM requests public input on issues

associated with the definition of “waters of the United

States” and also solicits information or data from the

general public, the scientific community, and Federal

and State resource agencies on the implications of the

SWANCC decision for jurisdictional decisions under

the CWA. The goal . . . is to develop proposed

regulations that will further the public interest by

clarifying what waters are subject to CWA jurisdiction

and affording full protection to these waters . . . . The

input received from the public in response to today’s

ANPRM will be used by the [Corps] to determine the

issues to be addressed and the substantive approach for

a future proposed rulemaking addressing the scope of
4

CWA jurisdiction. Pending this rulemaking, should

questions arise, the regulated community should seek

assistance from the Corps . . . . 

Id. at 1991 (emphasis added). An accompanying memorandum

contained “clarifying guidance regarding [SWANCC],” advising

that “more refined factual and legal analysis will be required to

make a jurisdictional determination” under the 1986 rule for

certain waters and instructing staff to obtain prior Headquarters’

approval. Id. at 1996, 1997-98. Approximately 130,000

comments were received. On December 16, 2003, the Corps

issued a one-page Press Release announcing that it “would not

issue a new rule on federal regulatory jurisdiction over isolated

wetlands.” Press Release, U.S. Army Corps of Eng’rs & U.S.

Envtl. Prot. Agency, EPA, Corps of Engineers Issue Wetlands

Decision, at 1 (Dec. 16, 2003). 

On August 5, 2005, P&V Enterprises, Friendly Valley

Equestrian Homes, SCC Acquisitions, Inc., and SunCal

Martinville LLC (hereafter “P&V”) filed suit, challenging the

1986 rule’s definition of “waters of the United States” as

“facially invalid” under the Commerce Clause. Compl. ¶ 40.

The complaint alleged that the Corps had overstepped its

authority in asserting jurisdiction over the Mojave River, which

is an “isolated, intrastate” river. Id. ¶ 16. As owners or intended

developers of approximately 8,000 acres of “desert land” that

includes several “ephemeral” tributaries to the Mojave River,

near Barstow, California, P&V asserted economic injury and

that it faced the “classic Hobson’s choice” of submitting to

costly regulation or paying enforcement penalties. Id. ¶ 34. The

Corps moved to dismiss the complaint pursuant to FED. R. CIV.

P. 12(b)(1) for lack of subject-matter jurisdiction, asserting

sovereign immunity and, alternatively, that if the complaint

stated a claim under the Administrative Procedure Act (“APA”)

it was untimely under 28 U.S.C. § 2401(a). P&V responded that
5

the APA’s waiver of sovereign immunity applied regardless

whether it was stating an APA claim, Chamber of Commerce v.

Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996), that section 2401(a)

was not jurisdictional in view of Irwin v. Department of

Veterans Affairs, 498 U.S. 89 (1990), and that the Corps had

reopened the 1986 rule for facial challenge by issuing the

ANPRM and Press Release in 2003. The district court dismissed

the complaint for failure to state a claim, relying on section

2401(a). P&V Enters. v. U.S. Army Corps of Eng’rs, 466 F.

Supp. 2d 134, 147 (D.D.C. 2006). P&V appeals and our review

is de novo. Felter v. Kempthorne, 473 F.3d 1255, 1259 (D.C.

Cir. 2007).

II.

Section 2401(a) provides that: “[E]very civil action

commenced against the United States shall be barred unless the

complaint is filed within six years after the right of action first

accrues.” 28 U.S.C. § 2401(a). This court has held that “[t]he

right of action first accrues on the date of the final agency

action.” Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004).

Because P&V did not challenge the 1986 rule until 2005, it

relies on the reopening doctrine.

The reopening doctrine allows an otherwise stale challenge

to proceed because “the agency opened the issue up anew,” and

then “reexamined . . . and reaffirmed its [prior] decision.” Pub.

Citizen v. Nuclear Reg. Comm’n, 901 F.2d 147, 150-51 (D.C.

Cir. 1990) (quoting Ass’n of Am. R.R. v. Interstate Commerce

Comm’n, 846 F.2d 1465, 1473 (D.C. Cir. 1988)). The doctrine

only applies, however, where “the entire context,” id. at 150,

demonstrates that the agency “ha[s] undertaken a serious,

substantive reconsideration of the [existing] rule,” Nat’l Mining

Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345, 1352 (D.C. Cir.

1995). It is designed “to ensure that ‘when the agency . . . by
6

some new promulgation creates the opportunity for renewed

comment and objection,’ affected parties may seek judicial

review, even when the agency decides not to amend the longstanding rule at issue.” Gen. Motors Corp. v. EPA, 363 F.3d

442, 449-50 (D.C. Cir. 2004) (quoting State of Ohio v. EPA, 838

F.2d 1325, 1328 (D.C. Cir. 1988)). We conclude that the Corps’

statements in the 2003 notices do not demonstrate final agency

action under the reopening doctrine.

First, the January 2003 ANPRM did not set forth for public

comment the Corps’ views on the 1986 rule at all, much less its

views in the form of a proposed rulemaking. The ANPRM

requested information and data from interested parties so that

the Corps could determine upon consideration of the responses

whether to take any further action in view of SWANCC. The

occasion for the ANPRM was, as P&V acknowledges, the

Supreme Court’s decision in SWANCC, not any Corps decision

to reconsider the 1986 rule. See, e.g., 68 Fed. Reg. at 1991-93.

That was, as the name of the ANPRM indicated, merely a

possible next step. Although the ANPRM stated that the Corps

“ha[d] not engaged in a review of the regulations with the public

concerning CWA jurisdiction for some time,” it went on to

make clear that this request for comment was limited to a

request for “early estimates of potential resource implications of

the SWANCC decision.” Id. at 1993-94. In particular, the Corps

sought “information, data, or studies addressing the extent of

resource impacts to isolated, intrastate, non-navigable waters”;

“information regarding the functions and values of wetlands and

other waters that may be affected by the issues discussed in this

ANPRM”; and “scientific and technical studies and data,

analysis of environmental impacts, effects on interstate

commerce, other impacts, etc.” Id. at 1994.

Second, although referring to the 1986 rule and other

regulations, the ANPRM did not suggest that the Corps
7

considered the substance of the rule to be in doubt in any precise

manner, as has been found to be a factor that may show

reopening. For example, in Edison Electric Institute v. EPA,

996 F.2d 326, 330 (D.C. Cir. 1993), the agency issued a notice

of proposed rulemaking that both discussed “concerns that some

legitimate [use] technically may be prohibited [by the existing

rule]” and requested “comment on alternative approaches”

regarding the regulation, providing specific substantive

examples for comment. By contrast, the ANPRM did not

suggest a similar level of commitment of agency resources had

occurred, but at most indicated that a substantive proposal for

review might follow consideration of “public input on what, if

any, revisions in light of SWANCC might be appropriate to the

regulations,” 68 Fed. Reg. at 1992, including “comment on the

use of the factors” in the 1986 rule, id. at 1994. 

Third, the fact that the ANPRM neither offered a proposed

rule nor “h[eld] out the unchanged section as [such], offering an

explanation for its language, [and] soliciting comments on its

substance,” also weighs against a reopening. See Am. Iron &

Steel Inst. v. EPA, 886 F.2d 390, 397-98 (D.C. Cir. 1989) (citing

State of Ohio, 838 F.2d at 1328). The ANPRM anticipated only

that the Corps might “develop [a] proposed regulation[].” 68

Fed. Reg. at 1991. In other words, the ANPRM was no more

than a broadly stated request for information and comment in

light of a recent judicial opinion. Id. at 1994. Although “a

specific modification proposal” is not a prerequisite for a

reopening, Nat’l Ass’n of Reversionary Property Owners v.

Surface Transp. Bd., 158 F.3d 135, 142 (D.C. Cir. 1998), the

ANPRM did not purport to represent the Corps’ considered

reevaluation and updated judgment on the substance of the 1986

rule. Instead it sought information so that the Corps would be

in a position to make substantive decisions about how to proceed

after considering the responses. Specifically, the submitted

comments would be used by the Corps “to determine the issues
8

to be addressed and the substantive approach for a future

proposed rulemaking.” 68 Fed. Reg. at 1991. Publishing the

ANPRM was comparable to requesting comment on a petition

for commencement of a rulemaking as the Corps “has itself said

nothing on the merits.” See Nat’l Mining, 70 F.3d at 1351.

Viewed from the starting point, then, the ANPRM did not

represent the Corps’ reconsideration of the definition in the 1986

rule but an effort to gather information so that the Corps could

better assess whether SWANCC required it to modify the

definition.

Fourth, the December 2003 Press Release was not “the

consummation of the [Corps’] decisionmaking process,”

Appellants’ Br. at 24, as would constitute a final agency action

taken to reaffirm the existing rule. Assuming that a press release

could suffice, it must serve as a “promulgation” that embodies

the agency’s resolution of its reexamination of a rule and

constitutes sufficient new agency action to restart the limitations

period. Gen. Motors, 363 F.3d at 450 (citing CropLife Am. v.

EPA, 329 F.3d 876, 884 (D.C. Cir. 2003); Edison Elec., 996

F.2d at 331-32); see Sendra Corp. v. Magaw, 111 F.3d 162, 167

(D.C. Cir. 1997); Pub. Citizen, 901 F.2d at 151. The Press

Release stated only that the Corps had decided “not [to] issue a

new rule on federal regulatory jurisdiction over isolated

wetlands,” and instead, “to continue our efforts to ensure that the

Corps’ regulatory program is as effective, efficient and

responsive as it can be.” 2003 Press Release at 1. It made no

mention of a reexamination of the 1986 rule by the Corps, much

less offered any rationale for reaffirming the rule. In asserting

that the Corps would “preserve the federal government’s

authority to protect our wetlands,” “continue to monitor

implementation of this important program to ensure its

effectiveness,” and “reaffirm[] federal jurisdiction over the

majority of wetlands not impacted by the [SWANCC] decision,”

id., the Press Release had none of the indicia of a specific
9

statement explaining the agency’s reasoning for retaining a

particular rule or of new final action taken regarding any

existing rule. It neither responded to comments nor presented

new justifications for retaining the 1986 rule, as in CTIA-The

Wireless Ass’n v. FCC, for example, where the agency

“offer[ed] two new justifications [for the rule] not found in

[prior orders]” that “constituted the [agency’s] first legal

rationales for its action to date.” 466 F.3d 105, 112 (D.C. Cir.

2006); see Bluewater Network v. EPA, 370 F.3d 1, 17 (D.C. Cir.

2004); PanAmSat Corp. v. FCC, 198 F.3d 890, 897 (D.C. Cir.

1999); State of Ohio, 838 F.2d at 1328. The Press Release also

provided no insight into whether the Corps had rethought the

policy underlying the 1986 rule. See Nat’l Mining, 70 F.3d at

1351. Indeed, the contents of the Press Release might indicate

that the Corps simply concluded that the administrative costs of

a rulemaking proceeding outweighed any potential gains.

Viewed from the end point, then, the Press Release was silent

with respect to any substantive Corps decision in the nature of

a reconsideration. See Gen. Motors, 363 F.3d at 450. Were the

court to view the absence of evidence of “renewed adherence,”

Am. R.R., 846 F.2d at 1473, as sufficient to overcome a statute

of limitations, P&V fails to suggest what limits would exist to

bar stale claims.

Moreover, developing guidance on wetlands regulations

further supports the conclusion that the 2003 Press Release did

not constitute final agency action reopening the 1986 rule. The

SWANCC Guidance accompanying the ANPRM made clear that

the Corps’ jurisdictional determinations under the rule will be

issued on a case-by-case basis with Headquarters’ direct

involvement. 68 Fed. Reg. at 1996, 1997-98. It suggested that

if “questions arise concerning CWA jurisdiction, the regulated

community should seek assistance from the Corps . . . .” Id. at

1996. Serving mainly as a source of information on recent court

decisions, the Guidance memorandum was not itself a decisional
10

document. See id. at 1996 n.1; Cement Kiln Recycling Coal. v.

EPA, 493 F.3d 207, 227-28 (D.C. Cir. 2007). Four years later,

the Corps offered guidance on Rapanos v. United States, 547

U.S. 715 (2006) (plurality), that essentially repeated the 2003

case-by-case advice and offered no further insight into how the

Corps might apply the 1986 rule. Any evaluation of the Corps’

CWA jurisdiction thus appears to be far from complete. 

Under the circumstances, the ANPRM and the Press Release

did not constitute final agency action reopening the 1986 rule.

The Corps’ statements in 2003 could hardly be more different

from the situation in which an agency has announced that it

would undertake substantive reconsideration of its regulations

under specific circumstances – such as during a formal

evaluation period with a set time and format – and then has done

so. See, e.g., Edison Elec., 996 F.2d at 332; Pub. Citizen, 901

F.2d at 149, 151. The plain text of the ANPRM indicated that

the Corps was considering its options and seeking information

to assist it in deciding on the possibility of a future proposed

rule, while in the meantime continuing to apply the 1986 rule on

a case-by-case basis. The ANPRM was a preparatory step,

antecedent to a potential future rulemaking, not itself a decision

to reconsider the 1986 rule. The potential next step never

occurred, as demonstrated by the Press Release and the openended guidance. The Corps’ extension of the comment period

and the volume of comments that the Corps stated it would

carefully consider do not help P&V’s argument, for an agency

must be able to initiate a public dialogue without inadvertently

reopening established precedent, or its communications with the

public would be unnecessarily stifled. See Gen. Motors, 363

F.3d at 449, 453; Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d

420, 428 (D.C. Cir. 2004). Nonetheless, our conclusion that

P&V’s facial challenge to the 1986 rule is untimely does not

immunize the rule from all challenge: If the Corps applies the

rule to P&V’s property, or denies its petition to amend or
11

2

 See, e.g., Felter, 473 F.3d at 1260 (dictum) (citing Irwin,

498 U.S. at 95-96; Harris, 353 F.3d at 1013 n.7 (dictum)); see also

John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 755-56

(2008) (Breyer, J., for the majority); id. at 760-61 (Ginsburg, J.,

dissenting); Bowles v. Russell, 127 S. Ct. 2360, 2365-66 (2007). 

3

 Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C.

Cir. 2007) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584

(1999); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95

(1998)).

rescind the rule, then P&V would be able to challenge the rule

notwithstanding that the limitations period has run. See Cellular

Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 508 (D.C.

Cir. 2003); NLRB Union v. Fed. Labor Relations Auth., 834 F.2d

191, 195-96 (D.C. Cir. 1987). 

Accordingly, we affirm the dismissal of P&V’s facial

challenge to the 1986 rule for lack of subject-matter jurisdiction,

rather than for failure to state a claim. See FED. R. CIV. P.

12(b)(1). The court has long held that section 2401(a) creates “a

jurisdictional condition attached to the government’s waiver of

sovereign immunity.” Spannaus v. U.S. Dep’t of Justice, 824

F.2d 52, 55 (D.C. Cir. 1987) (citing United States v. Mottaz, 476

U.S. 834, 841 (1986); Soriano v. United States, 352 U.S. 270,

276 (1957)); see Kendall v. Army Bd. for Corr. of Military

Records, 996 F.2d 362, 366 (D.C. Cir. 1993); cf. Nat’l Mining,

70 F.3d at 1350. On appeal, neither P&V nor the Corps has

challenged this circuit’s precedent; therefore, we need not

question our prior authority. See LaShawn A. v. Barry, 87 F.3d

1389, 1395 (D.C. Cir. 1996) (en banc). Consequently, the court

has no occasion to address potential implications of recent

Supreme Court decisions,2

 and no need to reach the Corps’

alternative objection that P&V lacks standing.3