United States v. Western Radio Services Co. , 664 F. App'x 677 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-35382
Plaintiff-Appellee, D.C. No. 3:13-cv-01186-SI
v.
MEMORANDUM*
WESTERN RADIO SERVICES
COMPANY, INC,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted November 8, 2016
Portland, Oregon
Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.
Western Radio Services Company, Inc. (Western Radio) appeals from the
district court’s declaratory judgment that the special use authorization between
Western Radio and the United States Forest Service is cancelled, summary
judgment in favor of the United States on Western Radio’s counterclaim alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the cancellation violated the Administrative Procedure Act (APA), and dismissing
Western Radio’s Equal Access to Justice Act (EAJA) claim. We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
Western Radio does not appeal the denial of its EAJA claim in its briefing
before this court. The issue is therefore waived. See Blanford v. Sacramento Cty.,
406 F.3d 1110, 1114 n.8 (9th Cir. 2005). In any case, the EAJA claim is premature
and dismissal appropriate: A party cannot bring an EAJA claim unless it is the
prevailing party and there has been a final judgment in the action. 28 U.S.C. §
2412(d)(1); see, e.g., Papazian v. Bowen, 856 F.2d 1455, 1456 (9th Cir. 1988).
We review de novo the district court’s grant of summary judgment in favor
of the United States on its declaratory judgment action and on Western Radio’s
APA counterclaim. Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th
Cir. 1994). The district court properly exercised jurisdiction under the Declaratory
Judgment Act. The controversy between parties as to the status of the Lease was
“definite and concrete, touching the legal relations of parties having adverse legal
interests.” Hillblom v. United States, 896 F.2d 426, 430 (9th Cir. 1990). Whether
a contract was properly terminated is a “case or controversy” justiciable under the
Declaratory Judgment Act. See, e.g., Allstate Ins. Co. v. Herron, 634 F.3d 1101,
1108 (9th Cir. 2011).
2
The district court’s award of summary judgment in favor of the United
States was proper. Previous litigation has established that the construction of the
replacement tower was in breach of the Lease. See Oberdorfer v. Jewkes, 583 F.
App’x 770, 773 (9th Cir. 2014). To be valid, revocation of the Lease must be: (a)
undertaken by an “authorized officer”; (b) preceded by (i) written notice of the
basis for revocation and (ii) reasonable time to cure; and (c) subject to appeal
pursuant to relevant federal regulations. See 36 C.F.R. § 251.60 (2012); id.
§ 251.82(a)(8). The Forest Service provided adequate written notice that identified
seven violations of the terms and conditions of the Lease, including the
construction of the unauthorized tower. The Notice also provided Western Radio
with a reasonable time to cure, either by preparing for the tower’s removal once
weather permitted or by initiating technical review and providing the required
plans and inspections within thirty days.
The two-stage appeal of the revocation conformed to the procedures set forth
in 36 C.F.R. §§ 251.94-251.99 (2012). The revocation of the Lease was reviewed
at both the Forest Supervisor and Regional Forester levels. Western Radio fails to
identify any deficiencies in the administrative appeals process.
An agency action is arbitrary and capricious only “if the agency has relied
on factors which Congress has not intended it to consider, entirely failed to
3
consider an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). “Unexplained inconsistency between agency actions is [also] a
reason for holding an interpretation to be an arbitrary and capricious change.”
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015)
(citation and internal quotation marks omitted).
Western Radio argues three aspects of the Forest Service’s conduct in
revoking the Lease were arbitrary, capricious, or contrary to law. 5 U.S.C. §
706(2)(A). These claims are without merit.
First, Western Radio relies on materials outside the administrative record to
argue the Forest Service has a “longstanding practice” of permitting
noncompliance among special use permittees. Our review of agency decisions is
limited to the administrative record except in narrow circumstances not present
here. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450
(9th Cir. 1996). Even if we consider these outside materials, however, the Forest
Service had a reasonable basis to revoke the Lease and so the Forest Service’s
failure to cancel other leases does not show bad faith or capriciousness.
4
Second, Western Radio contends the revocation decision was motivated by
the improper objective of “accommodat[ing] AT&T’s desire for a separate
facility.” Western Radio does not argue that the revocation decision was contrary
to the evidence before the agency or implausible in light of that evidence. The
Forest Service’s revocation of the Lease is supportable for the Service’s stated
reasons, namely, Western Radio’s breach and failure to cure. See McFarland v.
Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008).
Third, Western Radio argues that because the Lease was signed by a Forest
Supervisor, District Ranger Jewkes was not authorized to revoke it. See 36 C.F.R.
§ 251.60(b) (an “authorized officer” for purposes of the section governing
revocation “is that person who issues the authorization or that officer’s
successor”). On April 22, 2010, then Forest Supervisor John Allen granted signing
authority to District Rangers in the Deschutes National Forest, including Jewkes,
for microwave, local exchange network, private mobile radio service, broadcast
translator, cellular/PCS, wireless internet service provider, and commercial mobile
radio service special use authorizations. In its final administrative decision as to
the revocation, the Regional Forester concluded that District Rangers, including
Ranger Jewkes, who are delegated the general authority to issue special use
permits are also “authorized officers” within the meaning of 36 C.F.R. § 251.60
5
and may revoke leases they did not personally sign. This conclusion was neither
plainly erroneous nor inconsistent with Forest Service regulations. See Shalala v.
Guernsey Mem’l Hosp., 514 U.S. 87, 103 (1995); Anchustegui v. Dep’t of Agric.,
257 F.3d 1124, 1128 (9th Cir. 2001).
AFFIRMED.
6