Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 30 (2000)

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Cite as: 530 U. S. 604 (2000)

Stevens, J., dissenting

a lengthy "Decision and Findings" in which he declined to do so.

And petitioners were not finished with the leases yet. After petitioners received this adverse judgment from Commerce, they sought the additional lease suspensions described, see App. to Brief for United States 1a (letter from Toni Hennike, Counsel, Mobil Oil, to Ralph Melancon, Regional Supervisor, MMS, Feb. 21, 1995), insisting that "the time period to seek judicial review of the Secretary's decisions had not expired when the MMS terminated the [pre-existing] suspensions," and that "[s]ince the Secretary's decision is being challenged, it is not a final decision and will not be until it is upheld by a final nonappealable judgment issued from a court with competent jurisdiction," id., at 2a. Indeed, petitioners have pending in the United States District Court for the District of Columbia at this very moment their appeal from the Secretary of Commerce's denial of petitioners' override request of North Carolina's CZMA objections. Mobil Oil Exploration & Producing Southeast, Inc. v. Daley, No. 95-93 SSH (filed Mar. 8, 2000).

Absent, then, any repudiation, we are left with the possibility that the nature of the Government's breach was so "essential" or "total" in the scope of the parties' contractual relationship as to justify the remedy of restitution. As above, I would reject the suggestion that the OBPA somehow acted ex proprio vigore to render a total breach of the parties' contracts. See ante, at 621 ("OBPA changed the contract-referenced procedures in several other ways as well"); Brief for Petitioner in No. 99-253, at 21. The OBPA was not passed as an amendment to statutes that the leases by their terms incorporated, nor did the OBPA state that its terms were to be considered incorporated into then-existing leases; it was, rather, an action external to the contract, capable of affecting the parties' actions but not of itself changing the contract terms. The OBPA did, of course, impose a legal duty upon the Secretary of the Interior to take actions

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