UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FT SUMTER TOURS INC

v.

BABBITT, BRUCE D.


98-5508a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Fort Sumter Tours, Inc. (FST)  provides
passenger boat service to Fort Sumter National  Monument in Charleston
Harbor, South Carolina. The ser- vice is provided pursuant to a
concession contract with the  Secretary of the Interior, through the
National Park Service  (NPS or "Park Service"), under which FST pays
the Secre- tary an annual franchise fee. This case involves a dispute 
over the fees charged during the second and third five-year  periods
of FST's current contract. The district court rejected  FST's
challenge to the fees, as do we. We conclude that this  court is
without jurisdiction to consider plaintiff's attack on  the fee
charged during the second contractual period, because  that challenge
is to NPS' nonreviewable refusal to settle then- pending litigation
between the parties concerning that fee.  We reject plaintiff's attack
on the fee charged during the  third contractual period because FST
failed to comply with  the contractual requirements for seeking


I


FST's current, fifteen-year contract with the Park Service  was signed
in 1986 and will expire in December 2000. The  contract is governed by
the National Park System Conces- sions Policy Act, 16 U.S.C. ss
20-20g,1 and Chapter 24 of  NPS' Concessions Guidelines, commonly
referred to as NPS- 48 ("NPS-48") (Joint Appendix (J.A.) at 88-135).
Under the  contract, FST must pay the Park Service an annual franchise
 fee, which is a set percentage of plaintiff's annual gross  receipts.
The fee is calculated to provide the concessioner 




__________

n 1 In 1998, the Concessions Policy Act was replaced by the  National
Park Service Concessions Management Improvement Act,  16 U.S.C. s 5951
et seq. The new legislation does not affect the  issues in this


with a reasonable profit, based on a comparison to rates of  return in
similar industries. See 16 U.S.C. s 20b(d); NPS-48  (J.A. at 100). In
evaluating a concessioner's reported net  profits, NPS may adjust
reported expenses by comparing  them to industry statistics. See
NPS-48 (J.A. at 126).


FST's 1986 contract is divided into three five-year periods.  During
the first, the franchise fee was set at 4.25% of gross  receipts.
Section 9(e) of the contract provides that the fee for  the second and
third five-year periods may be reconsidered  on either party's
initiative pursuant to specified procedures.  See J.A. at 32-33. This
case involves efforts to reconsider the  fee charged during each of
those two periods.


A


In June 1991, at the end of the first five-year period, the  Park
Service notified plaintiff that it was reconsidering the  franchise
fee. After an initial analysis, NPS tentatively con- cluded that the
appropriate fee should be 12%. That conclu- sion was based on an
examination of FST's financial reports,  which persuaded the Park
Service that FST had leased one of  its boats from a related
partnership in a deal that was "not an  arm's length transaction and
has resulted in lower earnings  than would have occurred under an
outright purchase of the  boat." See NPS Franchise Fee Analysis ( J.A.
at 74). NPS  also found that FST overpaid its corporate officers
relative to  benchmarks for the water transportation industry. See id.
at  73. Plaintiff objected to the proposed fee increase, and  notified
NPS that rather than arbitrate or negotiate the fee,  "we believe it
is in our mutual interest to seek a declaration of  rights by the
courts on this critical issue." Fort Sumter  Tours v. Babbitt ("FST
I"), No. 0918-1AJ, slip op. at 3  (D.S.C. Feb. 3, 1994) (J.A. at 138).
Having received notice of  FST's decision to forego arbitration and
proceed to court, the  Park Service notified FST that it had made a


On April 21, 1993, FST filed suit in the United States  District Court
for the District of South Carolina, charging,  inter alia, that: (1)
NPS lacked contractual or statutory 


authority to increase the franchise fee; (2) the increase  violated the
Administrative Procedure Act (APA), 5 U.S.C.  s 706, because NPS acted
arbitrarily and capriciously in  employing the procedures it used to
raise the fee; and (3)  imposition of a 12% fee violated the APA
because it was  unjustified "by substantial evidence regarding the
profits  earned by FST." FST I, slip op. at 4, 14 (J.A. at 139, 149). 
The South Carolina District Court rejected all of plaintiff's  claims,
finding the agency's procedures authorized and ration- al, and holding
that the 12% fee was "not so excessive as to  preclude a reasonable
opportunity for [plaintiff] to earn a  profit from its concession."
Id. at 11-21 (J.A. at 146-56).  Plaintiff appealed to the United
States Court of Appeals for  the Fourth Circuit, which, after de novo
review, upheld the  district court's decision. The Court of Appeals
rejected  FST's contractual and APA challenges to the franchise fee, 
finding that "NPS had both the statutory and the contractual 
authority to raise FST's franchise fee.... [and that] the fee 
determination itself [was] unobjectionable." Fort Sumter  Tours, Inc.
v. Babbitt ("FST II"), 66 F.3d 1324, 1337 (4th Cir.  1995). On
February 22, 1996, plaintiff petitioned the Su- preme Court for a writ


During the week of March 10, 1996, while the petition for  certiorari
was pending, FST's president, George Campsen,  Jr., approached NPS'
Concessions Program Manager, Robert  Yearout, at a trade association
meeting. Campsen asked  Yearout whether he was willing to discuss the
franchise fee.  Although the parties dispute the contents of the
ensuing  conversation,2 shortly after the meeting Campsen wrote Year-
out a letter. In it, Campsen noted that "the litigation was  ongoing"
and that the "judicial process" was "time consuming  and expensive,"
and he suggested that it was "of mutual  interest that NPS and FST
make a good faith attempt to 




__________

n 2 Yearout contends he informed Campsen that, because the  matter was
still in litigation, he could not make any commitments  without the
approval of the Department of Justice. See Yearout  Decl. p 6 (J.A. at
174-75). Campsen says Yearout merely told him  he would be happy to
look at any information Campsen wanted to  present. See Campsen
Responsive Decl. p 5 (J.A. at 210).


resolve this matter." J.A. at 177-78. Campsen also ex- pressed his
appreciation for Yearout's "willingness to explore  the opportunity
for some 'common ground' resolution." Id. at  177.


On May 10, 1996, Campsen and his son met with three  government
officials: Yearout, an Interior Department attor- ney, and a financial
analyst for the Park Service. The parties  again dispute the contents
of their conversation.3 Five days  after the meeting, the Interior
Department attorney sent  Campsen a letter, thanking him for the
opportunity to meet,  and concluding that "[b]ecause of the continuing
litigation  ... , any further correspondence on this matter will come 
from John Douglas, Assistant U.S. Attorney." Id. at 187.


On May 28, 1996, the Supreme Court denied the petition  for certiorari.
See Fort Sumter Tours, Inc. v. Babbitt, 116  S. Ct. 1848 (1996). In
early June, the NPS financial analyst  traveled to South Carolina to
meet with FST officials. On  July 1, 1996, shortly after the
expiration of the 25-day period  for filing a petition for rehearing
of the denial of certiorari,  Assistant U.S. Attorney Douglas sent
FST's counsel a letter  advising plaintiff that "we have concluded
that settlement  would not be in the interests of the United States."


B


While the litigation regarding the second contractual period  was
winding to a close, so too was the second period itself.  Under
section 9(e) of FST's concession contract, a party must 




__________

n 3 NPS contends that agency counsel stated at the outset that  the
purpose of the meeting was to "receive from FST information to  be
considered by NPS for the purpose of possibly recommending to  the
Department of Justice whether the Justice Department should  engage in
settlement discussions regarding FST's pending lawsuit."  Hanslin
Decl. p 5 (J.A. at 181). NPS also contends that Campsen  "stated that
he understood and agreed as to this purpose." Id. p 6  (J.A. at 181).
Campsen remembers no such statement by agency  counsel and denies
making the statement attributed to him. See  Campsen Responsive Decl.
pp 15, 16 (J.A. at 211-12).


request reconsideration in writing within sixty days of the  end of a
five-year period. If no adjustment has been agreed  to within 120 days
thereafter, the concessioner is required to  reduce its position to
writing within thirty days and submit it  to the Secretary for a
determination of appropriate fees. See  J.A. at 32.


On June 14, 1996, the day after the second period ended,  plaintiff
wrote John Tucker, the superintendent of Fort Sum- ter National
Monument, requesting that, for the third period,  the 12% fee be
reduced to the original 4.25%. See id. at 205.  On August 1, Tucker


[W]e would be pleased to meet with you to discuss your  proposal in
relation to the probable value of the contract.  We would propose a
meeting in late September at which  our respective positions would be
discussed.... I will  get back to you in a few weeks to discuss a
meeting date.


Id. at 207. No further correspondence ensued, and no meet- ing was
held.


C


While the parties disputed the second- and third-period  franchise
fees, FST refused to pay the increase and continued  to remit payments
at the 4.25% rate. Between June 1993 and  June 1996, NPS sent FST five
letters demanding payment of  past due amounts. See id. at 190-97. In
December of 1996,  NPS presented FST with a debt compromise proposal
for the  approximately $1 million in back fees, interest, and
penalties  still due. FST counter offered. See id. at 200. On January 
21, 1997, NPS rejected the counteroffer and notified FST that  if
payment were not made by February 28, 1997, NPS would  terminate the
contract. See id. at 203.


Plaintiff responded by filing the present lawsuit, which  challenged
the Park Service's refusal to reduce the franchise  fee for the second
and third contractual periods. At an early  hearing in the case, NPS
advised the district court that a final  decision had not yet been
reached regarding the third-period  fee, but that such a decision
would be forthcoming. That  decision was made on March 31, 1997. NPS
notified plaintiff 


that the 12% fee would remain in effect because FST had  failed to
reduce its final position to writing and submit it to  the Secretary
by the date specified in the contract. Refer- ring to section 9(e) of
the contract, NPS' notification letter  stated:


As we did not come to agreement upon an adjustment of  the franchise
fee by October 12, 1996, 120 days after  June 14, 1996, you had 30
days from that date, to  November 11, 1996, to reduce your position to
writing  and to submit it to the Secretary for a determination of  an
appropriate fee for the period commencing June 14,  1996. This you did
not do. Likewise, you did not  request that advisory arbitration be
initiated in connec- tion with your request for reconsideration of the
con- tract's 12% franchise fee.


J.A. at 311-12.


Although Plaintiff's complaint raised multiple claims, only  two sets
remain at issue on this appeal. In the first, FST  contended that the
Park Service violated the APA by arbi- trarily and capriciously
refusing--in July 1996--to reduce the  second-period fee as requested
by plaintiff. Granting sum- mary judgment for defendants, the district
court did not  reach the merits of this claim, but instead held that
NPS'  refusal was judicially nonreviewable because it represented 
nothing more than a refusal to settle the then-pending South  Carolina
litigation. See Fort Sumter Tours, Inc. v. Babbitt  ("FST III"), No.
97cv00293, slip op. at 12-16 (D.D.C. Aug. 28,  1998) (J.A. at 312-16).
Plaintiff's second contention was that  NPS breached the concession
contract, and acted arbitrarily  and capriciously, by refusing to
reconsider the fee for the  third period. The court granted summary
judgment for  defendants on that contention as well, holding that
plaintiff  had failed to submit its request for reconsideration in
accor- dance with the procedures outlined in section 9(e) of the 
contract. See id. at 16-18 (J.A. at 316-18). This appeal  followed.4




__________

n 4 Plaintiff's other claims challenged various NPS actions in 
connection with the concession contract, on grounds ranging from 


II


We begin with the dispute over the second-period fee.  Because the
district court decided the issue on summary  judgment, our standard of
review is de novo. See Hunter- Boykin v. George Wash. Univ., 132 F.3d
77, 79 (D.C. Cir.  1998); see also Grant v. United States Air Force,
197 F.3d  539, 541 (D.C. Cir. 1999). The question before us, however,
is  quite narrow. Needless to say, we have no authority to  review the
decision of the Fourth Circuit, which upheld the  merits of NPS'
initial decision to raise the franchise fee.  Plaintiff contends,
however, that we may review NPS' July  1996 refusal to reconsider and
lower the fee. The question  before us, then, is whether NPS' refusal
is subject to judicial  review.


An agency's refusal to reconsider a prior decision is only  reviewable
under limited circumstances. See ICC v. Brother- hood of Locomotive
Eng'rs (BLE), 482 U.S. 270, 278-81  (1987); Sendra Corp. v. Magaw, 111
F.3d 162, 166-67 (D.C.  Cir. 1997). It is true that "[i]f for any
reason the agency  reopens a matter, and after reconsideration, issues
a new and  final order, that order is reviewable on its merits."
Sendra  111 F.3d at 167; see BLE, 482 U.S. at 278. Plaintiff contends 
that NPS did reopen the fee issue in 1996. NPS, by contrast,  contends
that it merely evaluated the issue for purposes of  deciding whether
to settle plaintiff's South Carolina lawsuit,  and that the July 1996
letter from Assistant U.S. Attorney  Douglas represented a decision
not to do so. FST does not  dispute that the Justice Department has
sole authority to  settle lawsuits on behalf of the United States, see




__________

n breach of contract to violation of the APA. The district court 
dismissed those claims pursuant to Fed. R. Civ. P. 12(b)(6), in some 
instances because they were barred by the Fourth Circuit's decision 
in FST II. See FST III, slip op. at 19, 22 (J.A. at 319, 322). 
Plaintiff has not appealed from the dismissal of any claims other 
than those discussed in the text.


ss 516, 519, and that a decision whether to settle a case like 
FST's--if that is what occurred here--would not be reviewa- ble under
the APA, see Oral Arg. Tr. at 5. Cf. New York  State Dep't of Law v.
FCC, 984 F.2d 1209, 1213-15 (D.C. Cir.  1993) (holding nonreviewable
FCC decision to settle enforce- ment action); Schering Corp. v.
Heckler, 779 F.2d 683, 685-87  (D.C. Cir. 1985) (holding nonreviewable
FDA decision to  settle and dismiss enforcement action).5


We agree with the district court that the July 1996 letter  represented
a decision not to settle the litigation between the  parties. The
government's initial written response to plain- tiff's overtures, sent
by Interior Department attorney Lars  Hanslin in May of 1996, made
clear that the government was  undertaking to review the matter in
connection with the then- pending litigation. Hanslin advised FST that
the Park Ser- vice's consideration would be made "in consultation with
 appropriate officials of the Department of Justice." J.A. at  187.
And he emphasized that


Because of continuing litigation between Fort Sumter  Tours and the
National Park Service, any further corre- spondence on this matter
will come from John Douglas,  Assistant United States Attorney. As I
am sure you  appreciate, the National Park Service, because of the 
litigation is not in a position to directly respond to the  concerns
you have raised.


Id. (emphasis added).


The government's final decision letter, dated July 1, 1996,  makes the
character of its determination even more manifest.  That letter, which
is set out in relevant part in the 




__________

n 5 Although there may be circumstances in which a substantive  statute
places limits on an agency's settlement discretion, see New  York
State Dep't of Law, 984 F.2d at 1215, no such argument has  been
advanced concerning the Justice Department's litigation au- thority


margin,6 was sent not by the agency, but by its Justice  Department
counsel. It was sent not to FST itself, but to its  attorneys. Its
subject-reference line indicated that the topic  was FST's lawsuit.
The letter recited that the Park Service  had reviewed the franchise
fees "with a view toward potential  settlement." Id. at 198 (emphasis
added). And it informed  plaintiff's counsel that: "[W]e have
concluded that settlement  would not be in the best interests of the
United States." Id.  (emphasis added). Notwithstanding the express
language of the July 1996  letter, plaintiff contends that it


__________

n 6 Marvin D. Infinger, Esq.  Sinkler & Boyd, P.A.  .... RE: Fort
Sumter Tours, Inc. v. Bruce Babbitt C/A No. 2:93-0918-1, District of
South Carolina No. 94-1570, Fourth Circuit Court of Appeals  No.
95-1353, Supreme Court


Dear Marvin:


As you no doubt know, the responsible officials at the Park  Service
have recently engaged in a thorough review of the  franchise fees that
were at issue in the above litigation, at the  instigation of your
client, with a view toward potential settle- ment. This review was
undertaken with the full agreement  and cooperation of the Justice
Department. After due consid- eration of both the merits of your
client's contentions and the  procedural posture of the case, we have
concluded that settle- ment would not be in the interests of the
United States. I  would emphasize that this decision was based both
upon the  review of the apparent fairness of the franchise fees
imposed  and the fact that the Supreme Court has denied the writ of 
certiorari which you had sought. This concludes my handling  of this
case and I am closing my file on it at this time. ....


Sincerely yours, .... John H. Douglas Assistant U.S. Attorney J.A. at
198-99 (emphasis added)


reopened administrative decision, rather than the rejection of  a
settlement. FST proffers three related arguments. First,  it argues
that the letter cannot represent a decision regarding  settlement
because the South Carolina litigation had effective- ly ended by the
time FST made the March 1996 overture to  which the letter responded.
All that remained pending at  that time was the petition for
certiorari, which, FST suggest- ed at oral argument, was not "cert.
worthy." Oral Arg. Tr. at  11.


FST's argument is unpersuasive. While we raise our eye- brows at
plaintiff's admission that it filed a certiorari petition  knowing it
was unworthy of Supreme Court review,7 the fact  remains that that
petition was pending at the time FST's  president approached NPS'
Concessions Program Manager  for reconsideration. Indeed, FST's March
15, 1996 letter  expressly noted that "the litigation is ongoing
because ...  [FST] has petitioned the U.S. Supreme Court in the hopes
of  judicially correcting what we perceive as a grave injustice." 
J.A. at 177. Moreover, also pending at that time--and still  pending
after the petition was denied--were NPS' efforts to  collect nearly a
million dollars in unpaid fees, interest, and  penalties. As plaintiff
itself later suggested, those, too, were  potentially part of a global
settlement between the parties.  See id. at 201 (Dec. 31, 1996 letter
from FST, proposing to  pay fees in arrearage at 5% and third-period
fees at 6%).  Although plaintiff's self-assessment of its weak
litigating posi- tion turned out to be correct, that merely confirms
the  wisdom of the government's ultimate decision not to settle; it 
does not establish that the government never assessed the  situation


Second, plaintiff contends that the July 1996 letter reflects  an
administrative reopening, rather than the rejection of a  settlement,
because it recites that the Park Service engaged  in a "thorough
review" of the franchise fees, considered "the  merits" of FST's
contentions, and made its decision based in  part on a "review of the
apparent fairness of the franchise 




__________

n 7 See Oral Arg. Tr. at 11 ("This was not a cert. worthy case. 
Anybody could have looked at it and decided that.").


fees imposed." J.A. at 188-89. According to FST, these are  indicators
of a true agency reconsideration, not merely of a  decision whether to
settle a lawsuit.


Once again, we find plaintiff's argument unpersuasive. The  fact that
the agency considered the merits of plaintiff's posi- tion can hardly
serve to remove its decisionmaking from the  realm of settlement.
Indeed, it would be extraordinary for  the government to make a
settlement decision without consid- ering the merits of the underlying
dispute. And as we have  said more generally with respect to
determining whether an  agency has truly reopened a prior decision:
"That the agency  discusses the merits at length when it denies a
request for  reconsideration does not necessarily mean the agency has 
reopened the proceedings.... It would make no sense what- soever to
hold that when an agency offers an explanation for  'affirming a prior
denial,' it has in effect reopened the pro- ceedings and rendered a
new, judicially-reviewable decision."  Sendra, 111 F.3d at 167
(quoting BLE, 482 U.S. at 281). The  Supreme Court has made precisely


It is irrelevant that the commission's order refusing  reconsideration
discussed the merits of the unions' claim  at length.... [O]ne cannot
intelligently rule upon a  petition to reconsider without reflecting
among other  things, whether clear error was shown. It would hardly 
be sensible to say that the Commission can genuinely  deny
reconsideration only when it gives the matter no  thought; nor to say
that the character of its action (as  grant or denial) depends upon
whether it chooses to  disclose its reasoning. Rather, it is the
Commission's  formal action, rather than its discussion, that is


BLE, 482 U.S. at 280-81


But, plaintiff continues, surely the inclusion of language  indicating
the agency undertook a "thorough review" at least  renders the letter
ambiguous. And, that being so, was not  summary judgment
inappropriate, since on summary judg- ment uncertainties are to be
resolved in the non-moving  party's favor? See FST Br. at 26 (citing
Adickes v. S. H.  Kress & Co., 398 U.S. 144, 157 (1970)). The answer
is: not  these kinds of uncertainties. For the reasons just stated,


"thorough review" language does not render the letter ambig- uous. But
even if it did, ambiguity as to whether the agency  had reopened its
decisionmaking would not advance appel- lant's cause. To the


Only "when the agency has clearly stated or otherwise  demonstrated"
that it has reopened the proceeding will  the resulting agency
decision be considered a new final  order subject to judicial review
under the usual stan- dards.... [U]nless the agency clearly states or
indi- cates that it has reopened the matter, its refusal of a  request
for reconsideration will be treated as simply that.


Sendra, 111 F.3d at 167 (quoting Morris v. Sullivan, 897 F.2d  553, 558
(D.C. Cir. 1990)) (citations omitted) (emphasis add- ed). Not even
plaintiff contends that NPS "clearly" stated it  had reopened the
matter.


Finally, plaintiff argues that it was error for the district  court to
conclude that NPS' decision was a nonreviewable  settlement
determination without first demanding that the  agency produce the
full administrative record of the 1996  decision. Summary judgment was
inappropriate, FST con- tends, because there are factual disputes over
what happened  at several meetings between the parties, see supra
notes 2 &  3, and because NPS did not characterize its decision as one
 involving settlement "until this suit was filed and then only in  the
[form of] post hoc affidavits." FST Br. at 26.


We reject this argument as well. As the district court  held, while
there may be factual disputes in this case, they  are not material to
resolution of the issue at hand. Here we  have a formal decision
document: the July 1, 1996 letter from  Assistant U.S. Attorney
Douglas. That document is not "post  hoc." To the contrary, because it
was a contemporaneous  communication of the agency's final
determination, it is as  "hoc" as a document can be. The decision
expressly commu- nicated on the face of that document is: "[W]e have
concluded  that settlement would not be in the interests of the United
 States." J.A. at 198 (emphasis added). In such circum- stances, both
this court and the Supreme Court have held  that we should look no
further. "Courts will not," we said in  Sendra Corp. v. Magaw, "look


disposition of the reconsideration request to see whether the  agency
'in fact' reopened its original decision (and thus ren- dered a new
final order)." Sendra, 111 F.3d at 167. "Where  the [agency's] formal
disposition is to deny reconsideration,  and where it makes no
alteration in the underlying order, we  will not undertake an inquiry
into whether reconsideration 'in  fact' occurred." BLE, 482 U.S. at


In sum, we agree with the district court that the July 1996  decision
was a nonreviewable settlement determination. This  Circuit has
recently held that the nonreviewability of a simi- lar kind of agency
decision is not simply a question of  deference to agency discretion,
but of the absence of jurisdic- tion. See Entravision Holdings, LLC v.
FCC, No. 99-1025,  slip op. at 4 & n.* (D.C. Cir. 2000) (denial of
reconsideration);  see also BLE, 482 U.S. at 282, 287. Accordingly, we
must  vacate the judgment with respect to the claims regarding the 
second contractual period, and remand with instructions to  dismiss
those claims for lack of jurisdiction.


III


In its remaining set of claims, plaintiff contends that NPS'  refusal
to reconsider the franchise fee for the third five-year  period
breached the concession contract and was arbitrary  and capricious.
NPS refused to reconsider on the ground  that, as it read the
contract, FST had failed to comply with a  requirement that it submit
a second written statement of its  position after 120 days had passed
without agreement. The  district court found that the language of the
contract unam- biguously supported NPS' interpretation. See FST III,
slip  op. at 17 (J.A. at 317). Because the ambiguity of a contract is 
a question of law, our review is de novo. See Bennett Enters.,  Inc.
v. Domino's Pizza, Inc., 45 F.3d 493, 497 (D.C. Cir.  1995); LTV Corp.
v. Gulf States Steel, Inc., 969 F.2d 1050,  1055 (D.C. Cir. 1992).


Like the district court, we believe the contract is clear and  that the
government was entitled to enforce it according to its  terms. Section
9(e) states:


Within sixty (60) days after the end of each 5-year  period of this
contract or as otherwise specified, at the  instance of either party
hereto, the amount and character 


of the franchise fees provided for in this section may be 
reconsidered. Such request shall be made in writing  within 60 days
after the end of the applicable contract  year but cannot be made
before the end of such year. In  the event that the Secretary and the
Concessioner cannot  agree upon an adjustment of the franchise fees
within  120 days from the date of the request for renegotiation as 
made by either party, the position of the Concessioner  must be
reduced to writing within 30 days therefrom  and submitted to the
Secretary for a determination of  appropriate fees.... 


J.A. at 32 (emphasis added). Thus, the contract requires that  if the
parties cannot agree within 120 days from the date of  the original
written request, the concessioner must again  reduce its position to
writing within another thirty days and  submit it to the Secretary. It
is conceded that no writing was  submitted after the passage of the
120-day period.


Plaintiff contends that its original request for a 4.25% fee  for the
third period--submitted in its June 14, 1996 letter-- should be
sufficient to satisfy the requirement of a writing.  As the district
court noted, however, the contract plainly  "includes reference to two
separate writings: a written re- quest initiating the reconsideration
process, and a written  summary of the concessioner's position to be
submitted some- time after 120 days, but no more than 150 days after
the  original request, assuming the parties do not resolve the issue 
earlier." FST III, slip op. at 17 (J.A. at 317). At bottom,  FST asks
us to read the latter provision out of the contract-- a suggestion
that is inconsistent with our general approach to  contract
interpretation. See United States v. Insurance Co.  of N. Am., 83 F.3d
1507, 1511 (D.C. Cir. 1996) (noting the  "cardinal principle of
contract construction: that a document  should be read to give effect
to all its provisions") (quoting  Mastrobuono v. Shearson Lehman
Hutton, Inc., 514 U.S. 52,  63 (1995)); see also YRT Servs. Corp. v.
United States, 28  Fed. Cl. 366, 389 (1993) ("When interpreting the
language of  a contract, a court must give reasonable meaning to all
parts  of the contract and not render portions of the contract 


Nor is the provision at issue unimportant to the contract.  Section
9(e) channels fee disputes through a series of resolu-


tion points short of litigation. The second writing require- ment
compels the concessioner to reconsider its own position  and make a
final offer, while at the same time ensuring that  the Secretary will
have a last clear chance to negotiate a  settlement. FST chose to
ignore that contractual require- ment and resort directly to the
courts (for a second time).  Like the district court, we find the
contract unambiguous and  plaintiff's failure to abide by its terms
fatal to its cause.8 Nor  do we find anything in the government's
behavior inconsistent  with its duty to act in good faith when
enforcing its rights  under a contract. See Solar Turbines, Inc. v.
United States,  23 Cl. Ct. 142, 156-57 (1991).9


IV


For the forgoing reasons, we reject plaintiff's challenges to  the
franchise fees the Park Service established for the second 




__________

n 8 The district court further concluded that because NPS did not 
reconsider the third-period fee, "there was no 'final agency action' 
subject to review under the APA." FST III, slip op. at 18 (J.A. at 
318). The government does not press this point on appeal, see NPS  Br.
at 24, and we conclude that NPS' third-period decision is  reviewable.
Notwithstanding the contract's use of the term "recon- sideration" to
describe the process for adjusting fees, the contract  essentially
grants the concessioner the right to a new agency  decisionmaking for
each five-year period, provided it follows the  requisite procedures.
See J.A. at 32-33; see also 16 U.S.C.  s 20b(d). NPS' decision is
therefore reviewable, although FTS'  appeal fails on the merits
because plaintiff did not follow those  procedures.


9 This is not a case like Orange Cove Irrigation District v.  United
States, 28 Fed. Cl. 790 (1993), cited by plaintiff, in which the 
Court of Federal Claims held the government to have breached its 
covenant of good faith and fair dealing by insisting on adherence to 
an unreasonable deadline. There, the two-week deadline imposed  by the
government was not contained in the contract, was imposed  without
notice to the contracting party, and was so short as to make  it
"almost certain" that compliance would be impossible. Id. at 801. 
Moreover, the contracting party did comply "soon" after the dead-


and third periods of the concession contract. The judgment  with
respect to the second contractual period is vacated and  remanded with
instructions to dismiss those claims for lack of  jurisdiction. In all
other respects the judgment below is  affirmed.




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n line. See id. at 802. The situation here is different in every 
respect.