Hymas v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JAY HYMAS, d/b/a DOSMEN FARMS,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2014-5150
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00291-SGB, Judge Susan G.
Braden.
______________________
Decided: January 14, 2016
______________________
JAMES P. SCHAEFER, Pro Bono Law, Palo Alto, CA, ar-
gued for plaintiff-appellee.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., DEBORAH A. BYNUM; SHERRY KINLAND
KASWELL, EDWARD T. KEABLE, HILARY C. TOMPKINS,
JAMES L. WEINER, Office of the Solicitor, United States
Department of the Interior, Washington, DC.
______________________
2 HYMAS v. UNITED STATES
Before PROST, Chief Judge, WALLACH and STOLL, Circuit
Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge STOLL.
WALLACH, Circuit Judge.
Appellant United States (“Government”) appeals the
decision of the United States Court of Federal Claims
(“Claims Court”) finding that it possessed subject matter
jurisdiction under the Tucker Act, 28 U.S.C. § 1491(b)(1)
(2012), to resolve the instant action filed by Jay Hymas,
doing business as Dosmen Farms. Hymas v. United
States, 117 Fed. Cl. 466, 486–88 (2014). The Government
also contests the Claims Court’s collateral finding that the
United States Department of the Interior’s Fish and
Wildlife Service (“the Service”) violated various federal
procurement laws and the Administrative Procedure Act
(“the APA”) when it entered into cooperative farming
agreements (“CFAs”) with individual farmers to grow
crops on public lands in the Umatilla National Wildlife
Refuge (“Umatilla Refuge”) and the McNary National
Wildlife Refuge (“McNary Refuge”). Id. at 500–506. We
vacate the Claims Court’s decision and remand with
instructions to dismiss Mr. Hymas’s case.
BACKGROUND
Beginning in the 1970s, the Service entered into CFAs
with farmers to manage public lands in the National
Wildlife Refuge System for the conservation of migratory
birds and wildlife, including at the Umatilla and McNary
Refuges in the Pacific Northwest. 1 See id. at 469–70.
1 The Umatilla Refuge covers more than 22,000
acres “within the upper reach of Lake Umatilla in Benton
County, Washington and Morrow County, Oregon,” and
“was established to mitigate for the loss of wildlife habitat
HYMAS v. UNITED STATES 3
Most CFAs share identical terms, through which the
Service permits a “cooperator” to farm specific parcels of
public land with specific crops that benefit the wildlife.
See J.A. 173–203, 212–27 (reproducing several CFAs). No
payment occurs for the performance of the CFAs; instead,
cooperators typically retain 75 percent of the crop yield for
their efforts. The remaining 25 percent is left to feed
migratory birds and other wildlife. The Service continues
its involvement once cooperators begin to perform the
CFAs, advising on decisions related to (1) crop selection;
(2) farming methods; (3) pesticide and fertilizer use; and
(4) crop harvest.
In the 1990s, the Service issued cropland manage-
ment plans for the Umatilla and McNary Refuges. The
plans call for “Tenure Arrangements” through which
“[c]ooperators are selected in accordance with Refuge
manual guidelines . . . and are issued a three year [CFA].”
J.A. 81. “[CFAs] were normally intended to be multi-year
agreements” because the Service determined that
“[c]ooperators should be given a long-term interest in the
caused by the development of the John Day Lock and
Dam and the subsequent flooding to create Lake Umatil-
la.” J.A. 90. It serves as “an important migration and
wintering area for waterfowl and other birds in the Co-
lumbia River Basin.” J.A. 90. The McNary Refuge covers
more than 15,000 acres “near the confluence of the Co-
lumbia and Snake Rivers in southeastern Washington”
and “was established as mitigation for the wildlife habitat
losses caused by the flooding of the Columbia River corri-
dor with the completion of the McNary Dam.” J.A. 73; see
also J.A. 133–34. Originally established “as a nesting
area for the Great Basin Canada Goose,” it has become
“more important as a wintering area for the large num-
bers of mallards and other subspecies of Canada
geese . . . .” J.A. 73.
4 HYMAS v. UNITED STATES
stewardship of the soil.” J.A. 15 (internal quotation
marks and citation omitted).
Mr. Hymas, through his business Dosmen Farms,
sought to secure a CFA with the Service in 2013 and
2014. J.A. 165–72, 208–09. A resident of Kennewick,
Washington, Mr. Hymas lived “approximately 7 miles as
the crow flies” from the McNary Refuge and 23 miles from
the Umatilla Refuge. J.A. 209. When Mr. Hymas ex-
pressed his interest in a CFA to the Service, he “indicated
that he had not participated in a National Wildlife Refuge
Cooperative Farming Program, nor was he a former
landowner or tenant of acquired lands.” J.A. 209. Accord-
ing to the Service, Mr. Hymas “also indicated that he
farmed the local vicinity but did not provide any location
information to verify these activities.” J.A. 209.
The Service considered Mr. Hymas, but ultimately se-
lected other cooperators. In 2013, the Service awarded
four CFAs with one-year terms and two CFAs with multi-
year terms. See J.A. 173, 178, 183, 188 (CFAs with one-
year term); J.A. 193, 198 (CFAs with multi-year terms).
In 2014, the Service awarded four CFAs with multi-year
terms that covered the same parcels of land subject to the
expired CFAs awarded in 2013. J.A. 212–27. The Service
did not use formal procurement procedures or solicit full
and open competition before it awarded the 2013 and
2014 CFAs; rather, it relied upon its priority selection
system that gave preference to previous cooperators with
a successful record of farming designated areas within the
refuge. J.A. 165–72 (2013 selection decision memos); J.A.
204–11 (2014 selection decision memos). Because Mr.
Hymas did not live adjacent to the refuges and had not
previously farmed refuge lands, the Service did not select
him for a CFA. J.A. 209; see also J.A. 167, 169–70 (citing
other reasons).
Mr. Hymas filed a bid protest in the Claims Court in
April 2013, alleging that the Service violated various
HYMAS v. UNITED STATES 5
federal procurement laws and the APA by not soliciting
“full and open” competition for the CFAs. Hymas, 117
Fed. Cl. at 489–93. Mr. Hymas’s Amended Complaint
alleges that
the Service’s use of a non-competitive bidding pro-
cess for the [CFAs] violated the [Competition in
Contract Act (“the CICA”)], 41 U.S.C. § 253(a)
(now [41 U.S.C.] § 3301(a)) (Count I); the [Federal
Grant and Cooperative Agreement Act (“the
FGCAA”)], 31 U.S.C. §§ 6303 and 6305 (Count II);
and was arbitrary, capricious, an abuse of discre-
tion, and contrary to law [under the APA] (Count
III).
Id. at 482. Mr. Hymas filed a Motion for Judgment on the
Administrative Record, and the Government filed a
Motion to Dismiss for lack of subject matter jurisdiction
and a Cross-Motion for Judgment upon the Administra-
tive Record. Id.
In July 2014, the Claims Court denied the Govern-
ment’s motion to dismiss, finding that it had subject
matter jurisdiction over Mr. Hymas’s claims. Id. at 488–
89. The Claims Court held that the CICA, rather than
the FGCAA, contains the operative definition of “pro-
curement” for purposes of determining jurisdiction under
the Tucker Act. Id. at 487. The Claims Court applied the
CICA definition to the facts of the case and held that,
because the Service used the CFAs at issue “to obtain the
services of farmer-cooperators to feed migratory birds and
wildlife on the Refuges,” that activity amounted to “a
procurement,” such that it had Tucker Act jurisdiction to
entertain Mr. Hymas’s challenge. Id. at 486.
Turning to the merits, the Claims Court determined
that the Service violated the CICA by not using formal
procurement procedures to obtain full and open competi-
tion. Id. at 496. The Claims Court found that neither the
Fish and Wildlife Coordination Act of 1958 (“the 1958
6 HYMAS v. UNITED STATES
Act”), Pub. L. No. 85-624, 72 Stat. 563 (1958) (codified as
amended at 16 U.S.C. §§ 661–664 (2012)), nor the Nation-
al Wildlife Refuge System Administration Act, Pub. L. No.
89-669, 80 Stat. 926 (1966) (codified as amended at 16
U.S.C. § 668dd(h)) (“the 1966 Act”), nor the National
Wildlife Refuge System Volunteer and Community Part-
nership Enhancement Act of 1998, Pub. L. No. 105-242,
112 Stat. 1574 (1998) (codified as amended at 16 U.S.C.
§§ 742a, 742f) (“the 1998 Act”) authorize the Service to
enter into cooperative agreements like the CFAs or ex-
empt the Service from complying with the CICA. Id. at
498–500. It also held that the Service’s priority selection
system violated the FGCAA. Id. at 500. Consequently,
the Claims Court permanently enjoined the Service “from
entering into any [CFAs] or other contractual vehicles
concerning the McNary and Umatilla National Wildlife
Refuges for the 2015 farming season or thereafter, unless
and until the selection process and award[s] comply with
the CICA, FGCAA, and the APA.” Id. at 508. It also
ordered the Service to “terminate” the six multi-year
CFAs awarded in 2013 and 2014 “at the conclusion of the
2014 farming season.” Id. at 509. The Claims Court
entered judgment accordingly. J.A. 7.
The Government timely appealed that judgment. We
have subject matter jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3) (2012).
DISCUSSION
I. Standard of Review
“[A] federal court [must] satisfy itself of its jurisdic-
tion over the subject matter before it considers the merits
of a case.” Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583 (1999); see Ex parte McCardle, 74 U.S. 506, 514
(1868) (“Without jurisdiction, the court cannot proceed at
all in any cause. Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing
HYMAS v. UNITED STATES 7
the cause.”). A decision from the Claims Court on the
scope of its jurisdiction presents a question of law that we
review without deference. See SRA Int’l, Inc. v. United
States, 766 F.3d 1409, 1412 (Fed. Cir. 2014). The party
seeking to invoke the Claims Court’s jurisdiction must
establish that jurisdiction exists by a preponderance of
the evidence. Taylor v. United States, 303 F.3d 1357,
1359 (Fed. Cir. 2002). “[W]e review the [Claims Court’s]
findings of fact relating to jurisdictional issues for clear
error.” John R. Sand & Gravel Co. v. United States, 457
F.3d 1345, 1353 (Fed. Cir. 2006). Although, for purposes
of jurisdiction, we typically assume as true all facts al-
leged in a complaint, where “the factual basis for the
court’s subject matter jurisdiction” is challenged, “only
uncontroverted factual allegations are accepted as true.”
Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84
(Fed. Cir. 1993).
II. The Claims Court Lacked Subject Matter Jurisdiction
“[T]he United States, as sovereign, ‘is immune from
suit save as it consents to be sued . . . and the terms of its
consent to be sued in any court define that court’s juris-
diction to entertain the suit.’” United States v. Testan,
424 U.S. 392, 399 (1976) (quoting United States v. Sher-
wood, 312 U.S. 584, 586 (1941)). Consistent with this
principle, the Tucker Act confers limited jurisdiction on
the Claims Court to adjudicate claims against the United
States. Brown v. United States, 105 F.3d 621, 623 (Fed.
Cir. 1997). In relevant part, the Tucker Act states that
the Claims Court may render judgment
on an action by an interested party objecting to a
solicitation by a Federal agency for bids or pro-
posals for a proposed contract or to a proposed
award or the award of a contract or any alleged
violation of statute or regulation in connection
with a procurement or a proposed procurement.
8 HYMAS v. UNITED STATES
28 U.S.C. § 1491(b)(1) (emphasis added). Commonly
known as “bid protest jurisdiction,” this court has found
that this provision speaks “exclusively” to “procurement
solicitations and contracts.” Res. Conservation Grp., LLC
v. United States, 597 F.3d 1238, 1245 (Fed. Cir. 2010)
(emphasis added); see id. at 1242–45 (discussing the
statutory text and legislative history of § 1491(b)).
As is occasionally necessary in deciding the parame-
ters of bid protest jurisdiction, we must answer certain
foundational questions that necessarily will impart
whether the court has jurisdiction over the issues raised.
See, e.g., Mudge v. United States, 308 F.3d 1220, 1224
(Fed. Cir. 2002) (reviewing underlying statutory issues to
determine whether the Claims Court properly dismissed
suit); see also In re Teles AG Informationstechnologien,
747 F.3d 1357, 1361 (Fed. Cir. 2014) (same). Specifically,
we must first decide whether the Service has statutory
authority to enter into cooperative agreements. If it does
not, then the Service could only have negotiated procure-
ment contracts subject to Tucker Act review. If it did
have the authority, we must next decide whether the
Service properly construed the CFAs as cooperative
agreements, rather than procurement contracts. If we
find that the Service correctly concluded that the CFAs
are not procurement contracts, then we must resolve
whether the Claims Court’s subject matter jurisdiction
under the Tucker Act extends to cooperative agreements.
We address each question in turn.
A. The Service Properly Interpreted the Relevant Statutes
to Authorize the use of CFAs
We first must address whether the Service properly
interpreted the relevant statutes as authorizing it to
negotiate cooperative agreements of the type represented
by the CFAs. We review an agency’s statutory interpreta-
tion using the two-pronged framework established by
Chevron, U.S.A., Inc. v. Natural Resources Defense Coun-
HYMAS v. UNITED STATES 9
cil, Inc., 467 U.S. 837 (1984). The first prong requires the
court to assess “whether Congress has directly spoken to
the precise question at issue”; if so, we “must give effect to
the unambiguously expressed intent of Congress.” Id. at
842–43. If the statute does not answer the specific ques-
tion, meaning that it is “silent or ambiguous,” then the
court must discern “whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843;
Wilder v. Merit Sys. Prot. Bd., 675 F.3d 1319, 1322 (Fed.
Cir. 2012). “If Congress has explicitly left a gap for the
agency to fill, there is an express delegation of authority
to the agency to elucidate a specific provision of the stat-
ute by regulation.” Chevron, 467 U.S. at 843–44. “Such
legislative regulations are given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 844 (footnote omitted).
The Claims Court held that the 1958, 1966, and 1998
Acts do not exempt the CFAs from what the CICA de-
mands. Hymas, 117 Fed. Cl. at 498–500. The Govern-
ment argues that the Claims Court failed to defer to the
Service’s permissible interpretation of these statutes as
allowing the Service to enter into CFAs with individuals
who are not volunteers. Appellant’s Br. 42–48. We agree
with the Government.
1. The Service Permissibly Construed the 1958 Act
In 1934, Congress passed An Act to Promote the Con-
servation of Wild Life, Fish, and Game, and for other
Purposes, which authorized the Service “to provide expert
assistance to and to cooperate with Federal, State, and
other agencies in . . . increasing the supply of game and
fur-bearing animals and fish, in combating diseases, and
in developing a Nation-wide program of wild-life conser-
10 HYMAS v. UNITED STATES
vation and rehabilitation.” 2 Pub. L. No. 73-121, § 1, 48
Stat. 401, 401 (1934) (“the 1934 Act”). Congress amended
the 1934 Act in 1946 to authorize the Service “to provide
assistance to, and cooperate with, Federal, State, and
public or private agencies and organizations” in fulfilling
its previously-articulated goals and to carry out “other
measures necessary to effectuate the purposes of this
Act.” An Act to Promote the Conservation of Wildlife,
Fish, and Game, and for Other Purposes, Pub. L. No. 79-
732, § 1, 60 Stat. 1080, 1080 (1946) (“the 1946 Act”)
(emphasis added). Importantly, Congress also required
that areas made available to the Service “shall be admin-
istered” either “directly,” or pursuant to “cooperative
agreements entered into pursuant to the provisions of
section 1.” Id. § 4, 60 Stat. at 1081 (emphasis added).
The amendment also expressly authorized the Service to
promulgate “rules and regulations for the conservation,
maintenance, and management of wildlife, resources
thereof, and its habitat thereon.” Id. In 1958, Congress
again amended the 1934 Act. 1958 Act, §§ 1, 4, 72 Stat. at
563, 567. In so doing, it re-enacted the provisions above
in substantially identical form. Id. These provisions
remain unchanged.
Because Congress did not define the phrase “public or
private agencies and organizations” in the 1946 Act, the
Service invoked the express rulemaking authority of that
2 In 1939, President Roosevelt transferred two bu-
reaus operating within the United States Departments of
Agriculture and Commerce, respectively, to the United
States Department of the Interior and in 1940 consolidat-
ed them into what later became known as the “Fish and
Wildlife Service.” See Reorganization Plan No. III, 54
Stat. 1231, 1232 (1940) (effective June 30, 1940) (consoli-
dated, renamed); Reorganization Plan No. II, 53 Stat.
1431, 1433 (1939) (effective July 1, 1939) (transferred).
HYMAS v. UNITED STATES 11
Act in 1960, promulgating a regulation allowing the
Service to enter into cooperative agreements on a refuge
with any “person”:
Cooperative agreements with persons for crop cul-
tivation, haying, grazing, or the harvest of vegeta-
tive products, including plantlife, growing with or
without cultivation on wildlife refuge areas may
be executed on a share-in-kind basis when such
agreements are in aid of or benefit to the wildlife
management of the area.
Title 50—Wildlife: Revision and Reorganization of Title,
25 Fed. Reg. 8,397, 8,413 (Dep’t of Interior Sept. 1, 1960)
(“Final Rules”) (emphases added) (codified at 50 C.F.R.
§ 29.2 (2012)). The Service defines a “person” as “an
individual, club, association, partnership, corporation, or
private or public body.” Id. at 8,398 (codified at 50 C.F.R.
§ 1.6). These regulations remain unchanged.
The Claims Court rejected the Government’s argu-
ment that, by authorizing the use of “cooperative agree-
ments” rather than “procurement contracts,” the 1958 Act
(which, in amending the 1934 Act, retained the “coopera-
tive agreement” provision of the 1946 Act) exempts the
Service’s CFAs from the competitive bid requirements of
the CICA. Enacted in 1984, the CICA established a
general requirement that executive agencies “obtain full
and open competition through the use of competitive
procedures” when “conducting a procurement for property
or services.” Pub. L. No. 98-369, § 2711, 98 Stat. 494,
1175 (1984). The CICA originally did not include a defini-
tion of “procurement,” but in 2011 Congress amended the
act to define the term. An Act to Enact Certain Laws
Relating to Public Contracts as Title 41, United States
Code, “Public Contracts,” Pub. L. No. 111-350, sec. 3, 41
U.S.C. § 111, 124 Stat. 3677, 3681 (2011). The CICA now
defines “procurement” as “all stages of the process of
acquiring property or services, beginning with the process
12 HYMAS v. UNITED STATES
for determining a need for property or services and ending
with contract completion and closeout.” 41 U.S.C. § 111.
As an initial matter, the Claims Court found that the
1958 Act could not have preempted the CICA because
Congress passed the CICA in 1984, twenty-six years after
the 1958 Act. Hymas, 117 Fed. Cl. at 498. The Claims
Court reached the same conclusion with respect to the
1966 Act, id. at 499, which provided that the Service’s
regulations “shall continue in effect until modified or
rescinded,” 1966 Act, § 4(g), 80 Stat. at 929. And it simi-
larly found that the 1960 regulation, codified at 50 C.F.R.
§ 29.2, could not preempt the 1984 CICA. Hymas, 117
Fed. Cl. at 501.
The Claims Court’s holdings resolve a non-existent
conflict. No provision in the CICA’s text indicates that
Congress meant to replace the “cooperative agreements”
provision of the earlier enacted legislation or the 1960
regulation. §§ 2711–2753, 98 Stat. at 1175–1203. In
addition, when Congress amended the CICA in 2011, it
intended to complement and clarify its earlier enactments
on the same subject matter by providing a definition for
“procurement.” See § 2(b), 124 Stat. at 3677 (explaining
that “[i]n the codification of laws by this Act, the intent is
to conform to the understood policy, intent, and purpose of
Congress in the original enactments, with such amend-
ments and corrections as will remove ambiguities, contra-
dictions, and other imperfections”). And nothing in the
legislative history accompanying the CICA and the 2011
amendment warrants a different conclusion. See general-
ly H.R. Rep. No. 111-42 (2009), reprinted in 2010
U.S.C.C.A.N. 1468; H.R. Rep. No. 98-861 (1984) (Conf.
Rep.), reprinted in 1984 U.S.C.C.A.N. 1445. In the ab-
sence of any indication to the contrary in the statute or
the legislative history, the Claims Court erred in holding
the competitive bidding requirements of the CICA apply
to the “cooperative agreements” authorized by regulation
pursuant to the 1946 and 1958 Acts. See, e.g., United
HYMAS v. UNITED STATES 13
States v. Fausto, 484 U.S. 439, 453 (1988) (“[I]t can be
strongly presumed that Congress will specifically address
language on the statute books that it wishes to change.”).
Turning to the 1958 Act’s text, the Claims Court
found that it did not provide the Service with the authori-
ty to enter into the CFAs because the 1958 Act governs
only “[cooperative] agreements between the Service and
other ‘Federal, State, and public or private agencies and
organizations’ to coordinate conservation between these
various organizations.” Hymas, 117 Fed. Cl. at 498
(emphasis added) (quoting 16 U.S.C. § 661). Because the
CFAs at issue were between the Service and “private
farmers,” rather “public or private agencies” or “organiza-
tions,” the Claims Court found the 1958 Act inapplicable.
Hymas, 117 Fed. Cl. at 498. It also determined that the
phrase “public or private [agencies and] organizations”
unambiguously “describes the types of governmental and
private entities that need to coordinate to conserve wild-
life” and that it “has nothing to do with cooperative farm-
ing agreements between the Service and private farmers.”
Id. at 501. It also reasoned that coordination with private
farmers does not “make sense within the context of the
statute.” Id. at 502. As a result, the Claims Court deter-
mined that the statute contained no gap that 50 C.F.R.
§ 29.2 could fill. Id.
We find ambiguity in the 1958 Act’s reference to “pub-
lic or private agencies and organizations” where the
Claims Court did not; its construction cannot stand. See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005) (“[P]rior judicial construc-
tion of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court
decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no
room for agency discretion.”). The statute does not define
the phrase “public or private agencies and organizations,”
so we give the terms “their ordinary, established meaning,
14 HYMAS v. UNITED STATES
for which we may consult dictionaries.” Info. Tech. &
Applications Corp. v. United States, 316 F.3d 1312, 1320
(Fed. Cir. 2003). The definition of “private” includes
“belonging to or concerning an individual, person, compa-
ny, or interest.” Private, Webster’s Third New Interna-
tional Dictionary of the English Language Unabridged
(1986) (“Webster’s”). “Organization” involves an “admin-
istrative and functional structure of an organization” such
“as a business.” Organization, id. A business reflects a
“commercial enterprise carried on for profit” and encom-
passes, among other structures, a “sole proprietorship”
like Mr. Hymas’s Dosmen Farms. Business, Black’s Law
Dictionary (8th ed. 2004) (“Black’s Law Dictionary”); see
id. (defining “sole proprietorship” as a “business in which
one person owns all the assets, owes all the liabilities, and
operates in his or her personal capacity”); see also Hymas
v. United States, No. 2014-5150, Docket No. 5 at 1 (where
Mr. Hymas answered “none” as to whether any parent
corporation or publicly held companies own ten percent or
more of Dosmen Farms). These terms also have alterna-
tive definitions and conceivably could cover other entities.
Private, Webster’s; Organization, id.; see also Business
Enterprises, Black’s Law Dictionary (describing different
business structures). “The existence of alternative dic-
tionary definitions of a term . . . indicates that the statute
is open to interpretation.” Info. Tech., 316 F.3d at 1320–
21 (internal quotation marks, brackets, and citation
omitted). Taken together, we find that the phrase “public
or private agencies and organizations” contains ambigui-
ty.
Pursuant to Congress’s express delegation in the 1958
Act, codified at 16 U.S.C. § 664, the Service promulgated
50 C.F.R. § 29.2 in 1960 through notice-and-comment
rulemaking. The regulation explains that the Service
may enter into cooperative agreements with any “person,”
50 C.F.R. § 29.2, which includes “an individual, club,
association, partnership, corporation, or private or public
HYMAS v. UNITED STATES 15
body,” 50 C.F.R. § 1.6. The Service’s decision to select the
term “person” to interpret the ambiguous phrase “public
or private agencies and organizations” in 16 U.S.C. § 661
reflects a permissible construction based upon a relevant
dictionary definition. See Info. Tech., 316 F.3d at 1321
(“[W]e must defer to a properly promulgated regulation[]
if it is ‘based on a permissible construction of the statute.’”
(quoting Chevron, 467 U.S. at 843)). That Congress has
taken no action over the past fifty years to disturb the
Service’s interpretation offers further support for our
conclusion. Zenith Radio Corp. v. United States, 437 U.S.
443, 450 (1978) (affording “great deference” to the agen-
cy’s interpretation that the agency maintained for more
than eighty years); see also Young v. Cmty. Nutrition
Inst., 476 U.S. 974, 983 (1986) (“[A] congressional failure
to revise or repeal the agency’s interpretation is persua-
sive evidence that the interpretation is the one intended
by Congress.” (internal quotation marks and citation
omitted)).
The Claims Court’s holdings do not support a differ-
ent result. First, the Claims Court concluded that coordi-
nation between the Service and private farmers “make[s]
[no] sense within the context of the statute,” Hymas, 117
Fed. Cl. at 502, but that ipse dixit statement does not
answer why the Service could not coordinate conservation
efforts with private farmers consistent with the 1958 Act’s
goals, just as it had for the past fifty years. Second, it
observed that 50 C.F.R. § 29.2 did not expressly state that
the Service promulgated the regulation to interpret the
phrase “public or private agencies and organizations” first
set forth in section 1 of the 1946 Act (codified at 16 U.S.C.
§ 661), Hymas, 117 Fed. Cl. at 502; that finding overlooks
the Service’s citation in its rulemaking notice of 16 U.S.C.
§ 664, which in 1960 provided for “cooperative agreements
entered into pursuant to the provisions of [16 U.S.C.
§ 661].” 16 U.S.C. § 664 (1958); see Final Rules, 25 Fed.
Reg. at 8,413. Third, the Claims Court relied upon the
16 HYMAS v. UNITED STATES
principle of ejusdem generis to find the phrase “public or
private agencies and organizations” unambiguous, 3 Hy-
mas, 117 Fed. Cl. at 502, but that canon “comes into play
only when there is some uncertainty as to the meaning of
a particular clause in a statute,” Turkette, 452 U.S. at
581, which the Claims Court did not find. In any event,
the Claims Court should have deferred to the Service’s
regulation that permissibly construed the ambiguous
statute. Finally, that a different Service regulation also
contains the term “cooperative agreement” does not
diminish the reasonableness of 50 C.F.R. § 29.2, and the
Claims Court erred in concluding otherwise. Hymas, 117
Fed. Cl. at 502. Instead, it confirms that the Service
broadly interpreted its cooperative agreement authority to
encompass both the public and private spheres. See 50
C.F.R. § 25.12(a) (using “cooperative agreement” in the
definition of “coordination area”).
In sum, the Service permissibly construed the 1958
Act in filling a statutory gap and properly found that the
Act authorized it to negotiate cooperative agreements. As
we explain in the next subsection, a separate statutory
scheme—the Fish and Wildlife Act of 1956, Pub. L. No.
84-1024, 70 Stat. 1120 (1956) (“FWA”)—also permits the
Service to negotiate cooperative agreements.
2. The Claims Court’s Construction Conflicts with the
1998 Act’s Unambiguous Terms and Legislative History
After it initially enacted the FWA in 1956 to rename
the Service, Congress amended the FWA in 1998 in part
to promote volunteer programs and community partner-
3 The canon of ejusdem generis teaches “that where
general words follow a specific enumeration of persons or
things, the general words should be limited to persons or
things similar to those specifically enumerated.” United
States v. Turkette, 452 U.S. 576, 581 (1981).
HYMAS v. UNITED STATES 17
ships for the benefit of National Wildlife Refuges. 1998
Act, 112 Stat. 1574. Pursuant to that amendment, Con-
gress authorized the Service to “enter into [] cooperative
agreement[s] . . . with any partner organization, academic
institution, or State or local government agency to carry
out 1 or more projects or programs for a refuge.” Id. at
sec. 5, 16 U.S.C. § 742f(d)(2)(A), 112 Stat. at 1576. In
2004, Congress “clarif[ied] . . . [the Service’s] cooperative
agreement authority,” providing that
the Secretary of the Interior may negotiate and
enter into a cooperative agreement with a partner
organization, academic institution, State or local
government agency, or other person to implement
one or more projects or programs for a refuge or
complex of geographically related refuges in ac-
cordance with the purposes of this subsection and
in compliance with the policies of other relevant
authorities, regulations, and policy guidance.
National Wildlife Refuge Volunteer Act of 2004, Pub. L.
No. 108-327, sec. 4, § 742f(d)(2)(A), 118 Stat. 1271, 1272
(2004) (“2004 Amendments”) (capitalization altered)
(emphases added). “[P]rojects or programs” may include
efforts to (1) “promote the stewardship of resources of the
refuge through habitat maintenance, restoration, and
improvement, biological monitoring, or research”; and (2)
“support the operation and maintenance of the refuge
through constructing, operating, maintaining, or improv-
ing the facilities and services of the refuge[.]” 1998 Act,
sec. 5, § 742f(d)(2)(B), 112 Stat. at 1576. These provisions
remain unchanged.
The Claims Court found that neither the 1998 Act nor
the 2004 Amendments provide the Service with the
authority to negotiate cooperative agreements like the
CFAs. It found the 1998 Act’s text focuses on “‘voluntary
programs or community partnerships,’” not “contractual
arrangements whereby farmer-cooperators use public
18 HYMAS v. UNITED STATES
land to grow crops.” Hymas, 117 Fed. Cl. at 499 (quoting
1998 Act, 112 Stat. at 1574). It examined the legislative
history of the 2004 Amendments and determined that
Congress intended the 1998 Act and 2004 Amendments to
expand the Service’s authority to hire more volunteers,
not its authority to negotiate cooperative agreements
under which cooperators receive compensation in kind.
Hymas, 117 Fed. Cl. at 499–500 (examining S. Rep. No.
108-315, at 3 (2004); H.R. Rep. No. 108-385 (2003), re-
printed in 2004 U.S.C.C.A.N. 1163, 1165–66). It also
observed that the CFAs “could be considered projects and
programs to ‘promote the stewardship of resources of the
refuge,’” but declined to adopt such a broad interpretation
of the 1998 Act because doing so would mean there was no
“meaningful limitation on the types of agreements that
the Service could enter into, pursuant to section 742f(d).”
Id. at 500 & n.35. Finally, the Claims Court concluded
that Congress “could have exempted the Service from the
CICA” when it enacted the 2004 Amendments, “but did
not do so.” Id. at 500.
The Claims Court’s interpretation conflicts with the
1998 Act’s plain text. First, the Claims Court incorrectly
construed the 1998 Act’s preamble to concern volunteer
activities only. To the contrary, Congress enacted the
1998 Act to promote volunteer programs “and for other
purposes.” 1998 Act, 112 Stat. at 1574. In any event, a
preamble cannot overcome the statute’s plain language.
See Dist. of Columbia v. Heller, 554 U.S. 570, 578 n.3
(2008) (“[I]n America the settled principle of law is that
the preamble cannot control the enacting part of the
statute in cases where the enacting part is expressed in
clear, unambiguous terms.” (internal quotation marks
and citation omitted)). The statute unambiguously per-
mits the Service to “negotiate and enter into a cooperative
agreement” like the CFA with a “person” to implement a
“program[]” that (1) “promote[s] the stewardship of re-
sources of the refuge[s] through habitat maintenance,
HYMAS v. UNITED STATES 19
restoration, and improvement”; or (2) “support[s] the
operation and maintenance of the refuge through con-
structing, operating, maintaining, or improving the
facilities of the refuge[s].” 16 U.S.C. § 742f(d)(2)(A),
(B)(i)–(ii); see J.A. 173–203, 212–27 (discussing purposes
of the CFAs).
The Claims Court’s reading of the legislative history
is similarly problematic. When it passed the 1998 Act,
Congress identified three broad purposes that included,
among other goals, the facilitation of “partnerships be-
tween the [National Wildlife Refuge System] and non-
Federal entities to promote public awareness of the re-
sources of the System and public participation in the
conservation of those resources” and the encouragement
of “donations and other contributions by persons and
organizations to the System.” 1998 Act, sec. 2(b), 112
Stat. at 1574; cf. id. (explicitly identifying volunteer
activities as a separate goal). That Congress later sought
to enhance volunteer participation in 2004 does not mean
that it did so at the expense of its earlier goals. See
Aectra Refining & Mktg., Inc. v. United States, 565 F.3d
1364, 1370 (Fed. Cir. 2009) (“Congress is presumed to
enact legislation with knowledge of the law and a newly-
enacted statute is presumed to be harmonious with exist-
ing law and judicial concepts.”); see also Fausto, 484 U.S.
at 453 (“[I]t can be strongly presumed that Congress will
specifically address language on the statute books that it
wishes to change.”).
With respect to the Claims Court’s concerns about
meaningful limitations to the Service’s cooperative
agreements authority, we find that exercise best left to
the Service. We have held that “[o]ur duty is not to weigh
the wisdom of, or to resolve any struggle between, compet-
ing views of the public interest, but rather to respect
legitimate policy choices made by the agency in interpret-
ing and applying the statute.” Suramerica de Aleaciones
20 HYMAS v. UNITED STATES
Laminadas, C.A. v. United States, 966 F.2d 660, 665 (Fed.
Cir. 1992). We decline to chart a different course today.
Finally, the Claims Court’s assertion that Congress
could have exempted the Service from the CICA in 2004
(but did not) proffers a false choice. The Service has the
authority to negotiate cooperative agreements like the
CFAs should it choose to do so. We have held that such
agreements need not comply with the CICA in analogous
circumstances. See CMS Contract Mgmt. Servs. v. Mass.
Hous. Fin. Agency, 745 F.3d 1379, 1381 (Fed. Cir. 2014)
(holding that “agencies escape the requirements of federal
procurement law” under the CICA when “using a coopera-
tive agreement”).
Taken together, the 1958 and 1998 Acts, as amended,
are independent sources that authorize the Service to
negotiate cooperative agreements like the CFAs. The
Claims Court erred in holding otherwise.
B. The Service Properly Construed the CFAs as Coopera-
tive Agreements
Having determined that the statutory scheme permits
the Service to enter into cooperative agreements, we next
must answer whether the Service properly construed the
CFAs at issue as “cooperative agreements,” rather than
“procurement contracts.” “Whether a contract is a pro-
curement contract or a cooperative agreement is a ques-
tion of law,” which the court reviews de novo. Id. at 1385
(citing Maint. Eng’rs v. United States, 749 F.2d 724, 726
n.3 (Fed. Cir. 1984)). As we explain below, the Service
properly construed the instruments at issue as coopera-
tive agreements.
Various statutes address legal instruments under fed-
eral law. “Statutory interpretation begins with the lan-
guage of the statute.” Norfolk Dredging Co. v. United
States, 375 F.3d 1106, 1110 (Fed. Cir. 2004) (citing Wil-
liams v. Taylor, 529 U.S. 420, 431 (2000)). “A court
HYMAS v. UNITED STATES 21
derives the plain meaning of the statute from its text and
structure.” Id. (quoting Alexander v. Sandoval, 532 U.S.
275, 288 (2001)). “If the words are unambiguous, no
further inquiry is usually required.” Camargo Correa
Metais, S.A. v. United States, 200 F.3d 771, 773 (Fed. Cir.
1999) (citation omitted); see also Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must
presume that a legislature says in a statute what it
means and means in a statute what it says there.”). In
defining the plain meaning of a statute, courts must avoid
“add[ing] conditions” to the applicability of a statute that
do not appear in the provision’s text. Norfolk Dredging
Co., 375 F.3d at 1111.
As previously observed, the Claims Court’s bid protest
jurisdiction under 28 U.S.C. § 1491(b)(1) speaks “exclu-
sively” to “procurement solicitations and contracts.” Res.
Conservation, 597 F.3d at 1245 (emphasis added). Be-
cause the Tucker Act does not define the term “procure-
ment” in 28 U.S.C. § 1491(b)(1), see id. at 1242–45, the
court has relied upon the definition of “procurement” in 41
U.S.C. § 111 “to determine whether a ‘procurement’ has
occurred pursuant to § 1491(b).” Distributed Sols., Inc. v.
United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (cita-
tion omitted); 4 see also 41 U.S.C. § 111 (defining “pro-
curement” to cover “all stages of the process of acquiring
property or services, beginning with the process for de-
termining a need for property or services and ending with
contract completion and closeout”).
4 When Congress amended the CICA and reor-
ganized Title 41 of the United States Code in 2011, it
moved the definition of “procurement” from 41 U.S.C.
§ 403(2) to § 111. Sec. 3, § 111, 124 Stat. at 3681. Dis-
tributed Solutions cites to the definition under § 403(2).
539 F.3d at 1345.
22 HYMAS v. UNITED STATES
The definition of “procurement” in 41 U.S.C. § 111 is
not the only provision relevant to our inquiry, nor does a
“procurement contract” encompass the entire universe of
instruments at executive agencies’ disposal. In 1978,
Congress passed the FGCAA in light of its findings that
there was “a need to distinguish [f]ederal assistance
relationships from [f]ederal procurement relationships,”
as well as “uncertainty as to the meaning
of . . . ‘cooperative agreement.’” FGCAA, sec. 2, 92 Stat. at
3. In its current form, the FGCAA “prescribe[s] criteria
for executive agencies in selecting appropriate legal
instruments to achieve (A) uniformity in their use by
executive agencies; (B) a clear definition of the relation-
ships they reflect; and (C) a better understanding of the
responsibilities of the parties to them.” 31 U.S.C.
§ 6301(2). Congress intends the FGCAA to “eliminate
unnecessary administrative requirements on recipients of
Government awards by characterizing the relationship
between executive agencies and contractors, States, local
governments, and other recipients in acquiring property
and services and in providing United States Government
assistance.” Id. § 6301(1). To promote these goals, Con-
gress distinguished “procurement contract[s]” from “coop-
erative agreements” in the FGCAA. Id. §§ 6303
(explaining when executive agencies “shall use” procure-
ment contracts), 6305 (explaining when executive agen-
cies “shall use” cooperative agreements). 5
5 The dissent states that “the FGCAA does not
grant the agencies flexibility in determining when to use
a particular instrument in government contracting”
because 31 U.S.C. § 6303 articulates the circumstances
under which an agency “shall” use a procurement con-
tract. Dissent at 5–6. Congress’s use of “shall” in § 6303
is not dispositive. The dissent overlooks Congress’s other
directives as to when an agency “shall” use grants and
HYMAS v. UNITED STATES 23
In particular, the FGCAA requires that “[a]n execu-
tive agency shall use a procurement contract” when “the
principal purpose of the instrument is to acquire (by
purchase, lease, or barter) property or services for the
direct benefit or use of the United States Government.”
Id. § 6303. By contrast, “[a]n executive agency shall use a
cooperative agreement” when (1) “the principal purpose of
the relationship is to transfer a thing of value” to the
recipient “to carry out a public purpose of support or
stimulation authorized by a law of the United States
instead of acquiring (by purchase, lease or barter) proper-
ty or services for the direct benefit or use of the United
States Government” and (2) “substantial involvement” is
“expected between the executive agency and the State,
local government, or other recipient when carrying out
the activity contemplated in the agreement.” Id. § 6305.
Pursuant to the authority delegated by Congress, see
id. § 6307, the Office of Management and Budget has
explained that “determinations of whether a program is
principally one of procurement or assistance, and whether
substantial Federal involvement in performance will
normally occur[,] are basic agency policy decisions” and
that “Congress intended the [FGCAA] to allow agencies
flexibility to select the instrument that best suits each
transaction.” Implementation of Federal Grant and
Cooperative Agreement Act of 1977, 43 Fed. Reg. 36,860,
36,863 (Office of Mgmt. and Budget Aug. 18, 1978).
Congress amended the FGCAA in 1982 without substan-
tive change, An Act to amend the Federal Grant and
Cooperative Agreement Act, Pub. L. No. 97-162, 96 Stat.
23 (1982), and its provisions remain unchanged.
1. The Claims Court’s Decision Misinterprets the Law
cooperative agreements. 31 U.S.C. §§ 6304 (grants), 6305
(cooperative agreements).
24 HYMAS v. UNITED STATES
The Claims Court determined that the CFAs consti-
tuted procurement contracts because in its view the
Service uses them “to obtain the services of farmer-
cooperators to feed migratory birds and wildlife on the
Refuges,” which in its “judgment . . . is a procurement.”
Hymas, 117 Fed. Cl. at 486 (citing 41 U.S.C. § 111; Dis-
tributed Sols., 539 F.3d at 1345; Res. Conservation, 597
F.3d at 1244; RAMCOR Servs. Grp., Inc. v. United States,
185 F.3d 1286, 1289 (Fed. Cir. 1999)). The Claims Court
also determined that this court’s decision in CMS sup-
ported its conclusion, finding that in CMS
the agreements were used to obtain services from
third-parties, not to provide assistance to them.
In this case, the intended beneficiaries are the
migratory birds and wildlife on the refuges. The
farmer-cooperators are intermediaries. The Ad-
ministrative Record demonstrates that the Service
contracted with farmer-cooperators, not to benefit
them financially, but to obtain their services to
provide food for migratory birds and wildlife, in
exchange for the farmers’ personal use of public-
owned lands. The fact that farmer-cooperators
may profit from this arrangement does not change
their status as intermediaries. As such, the coop-
erative farming agreements in this case are pro-
curements, subject to the Tucker Act.
Id. at 487 (footnote and citations omitted). It concluded
by observing that 50 C.F.R. § 29.2 could not exempt the
CFAs from its Tucker Act jurisdiction because “numerous
circuit courts . . . have found uniformly that no Chevron
deference is given because the task of determining a
federal court’s jurisdiction falls to the court, not an agen-
cy.” Id. at 488 (brackets, internal quotation marks, and
citation omitted).
The Claims Court’s holdings and Mr. Hymas’s argu-
ments rest in large part upon the faulty premise that the
HYMAS v. UNITED STATES 25
definition of “cooperative agreement” in the FGCAA is
irrelevant and that 41 U.S.C. § 111 contains the only
definition that courts may consult to determine (1)
whether a particular transaction constitutes a procure-
ment and, consequently, (2) whether the Claims Court
has bid protest jurisdiction over a particular claim. See
Hymas, 117 Fed. Cl. at 486–88; Appellee’s Br. 29–32, 47–
48. Put another way, the Claims Court and Mr. Hymas
would have us look to 41 U.S.C. § 111 as the sole source
containing the relevant definitions of “procurement” and
“cooperative agreement.” The statute’s text does not
support that result, given that it speaks to “procurement”
only.
What is more, the court did not hold in Distributed
Solutions or in CMS that courts must construe instru-
ments pursuant to 41 U.S.C. § 111 without regard to
other relevant statutes. 6 To have done so would impose
an additional condition not present in the statute’s text,
see Norfolk Dredging Co., 375 F.3d at 1111, as well as
offend the well-established canon that courts should avoid
constructions that would render statutory text “superflu-
ous.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501
U.S. 104, 112 (1991); see also Conn. Nat’l Bank, 503 U.S.
at 253 (explaining that overlapping statutes may be given
effect so long as there is no “positive repugnancy” between
them). But see 360Training.com, Inc. v. United States,
104 Fed. Cl. 575, 586–87 (2012) (relying solely upon 41
U.S.C. § 111 and declining to consider the FGCAA to
6 Counsel for both parties acknowledged at oral ar-
gument that no authority supports the proposition that 41
U.S.C. § 111 is the only dispositive source for our inquiry.
Oral Argument at 17:53–18:15 (Counsel for Mr. Hymas),
29:48–30:26 (Counsel for the Government),
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
14-5150.mp3.
26 HYMAS v. UNITED STATES
determine jurisdiction). It also would mean that Congress
sub silentio imposed such a condition upon the courts,
effectively hiding an “elephant[] in [a] mousehole[].”
Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468
(2001).
Our case law counsels against such a narrow ap-
proach. For example, the court in CMS considered defini-
tions in the FGCAA in determining that the instrument
in question was a procurement contract, rather than a
cooperative agreement. 745 F.3d at 1381, 1386. Thus,
because we must respect the concinnity between the
separate yet interrelated statutes that Congress has
enacted, we decline to rely solely upon 41 U.S.C. § 111 for
our inquiry. See, e.g., Conn. Nat’l Bank, 503 U.S. at 253.
The Claims Court’s construction also ignores the con-
text in which Congress enacted the definition of “pro-
curement” in 41 U.S.C. § 111. Congress legislated against
the backdrop of the 1978 FGCAA when, in 2011, it de-
fined “procurement” in 41 U.S.C. § 111. “Congress is
presumed to enact legislation with knowledge of the law
and a newly-enacted statute is presumed to be harmoni-
ous with existing law and judicial concepts.” Aectra
Refining & Mktg., 565 F.3d at 1370. Congress presuma-
bly did not intend for the term “procurement” in 41 U.S.C.
§ 111 to conflict with or otherwise override the definitions
provided in the 1978 FGCAA, which it enacted to achieve
uniformity and clarity in the area. See FGCAA, sec.
2(b)(2), 92 Stat. at 3; Fausto, 484 U.S. at 453 (“[I]t can be
strongly presumed that Congress will specifically address
language on the statute books that it wishes to change.”).
With these precepts in mind, we find that the Service
properly construed the CFAs as cooperative agreements,
rather than procurement contracts. Under the FGCAA,
whether an instrument reflects a “procurement contract”
or a “cooperative agreement” turns upon the principal
purpose of the relationship. If the Service principally
HYMAS v. UNITED STATES 27
intended to “transfer a thing of value” to the private
farmers “to carry out a public purpose of support or stimu-
lation authorized by a law of the United States instead of
acquiring (by purchase, lease, or barter) property or
services for the direct benefit of or use of the United
States Government,” then the instrument is a cooperative
agreement. 31 U.S.C. § 6305(1). The Service must also
remain “substantial[ly] involve[d]” in the activity. Id.
§ 6305(2).
We find that the CFAs meet this definition. First, the
Service principally intended the CFAs to transfer a thing
of value (i.e., the right to farm specific refuge lands and
retain a share of the crop yield) to carry out a public
purpose authorized by law (i.e., to conserve wildlife on the
refuges). J.A. 173–203, 212–27. Indeed, the 1958 Act
provides that the Service “is authorized to provide assis-
tance to, and cooperate with, . . . public or private agen-
cies and organizations in the development, protection,
rearing, and stocking of all species of wildlife, resources
thereof, and their habitat.” 16 U.S.C. § 661. Likewise,
the 1998 Act authorizes the agency to “negotiate and
enter into a cooperative agreement with a . . . person to
implement one or more projects or programs for a refuge.”
16 U.S.C. § 742f(d)(2)(A). Thus, there is no serious dis-
pute that assisting private farmers to promote wildlife
conservation is the sine qua non of the CFAs. Second, the
Service remains substantially involved in the activity,
advising on decisions related to crop selection, farming
methods, pesticide and fertilizer use, and crop harvest.
J.A. 173–203, 212–27.
The CFAs cannot be construed as procurement con-
tracts because the agency did not intend to acquire farm-
ing “services” for the “direct benefit or use of the United
States Government.” 31 U.S.C. § 6305(1); see 41 U.S.C.
§ 111 (defining “procurement” as encompassing “all stages
of the process of acquiring property or services”). True,
the CFAs indirectly benefit the Service since the private
28 HYMAS v. UNITED STATES
farmers’ activities advance the agency’s overall mission,
but that is true for nearly all cooperative agreements.
More importantly, the Service does not directly benefit
from the farming services provided pursuant to the CFAs
because (1) it does not receive payment from the farmers
pursuant to the agreements, see J.A. 79; and (2) “[r]efuge
crop shares are all used by wildlife in the field” or re-
tained by the farmers, such that “[t]here are no excess
crops for disposition” by the Service, J.A. 82. And as
counsel for the Government explained, a traditional
procurement would not provide the Service with the
flexibility needed to react to exigencies that regularly
arise under the cropland management plans on the
Umatilla and McNary Refuges, such as decisions regard-
ing what plants to crop, when to harvest them, and how to
tend to them. See Oral Argument at 11:05–12:31,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
14-5150.mp3; see also J.A. 173–203, 212–27 (describing
decisions that arise under the plans and the need for
flexibility in making them). 7
Our decision in CMS does not, as the Claims Court
held, warrant a different conclusion. In CMS, we found
7 The dissent states that “the crop management
plans’ description of cooperative agreements being ‘nego-
tiated’ and of the farmer receiving a portion of the har-
vested crops ‘in return’ for his services strongly suggests a
quid pro quo relationship” indicative of “acquisitions”
secured through a procurement contract. Dissent at 5.
The argument is ipse dixit, and in any case, the natural
corollary to that argument is that no negotiation or ex-
change occurs when “the principal purpose of the rela-
tionship is to transfer a thing of value” to the recipient “to
carry out a public purpose of support or stimulation
authorized by a law of the United States.” 31 U.S.C.
§ 6305(1).
HYMAS v. UNITED STATES 29
that “the proper instrument is a procurement contract”
when a federal agency has “created an intermediary
relationship with” a third party. 745 F.3d at 1386 (cita-
tion omitted). However, the court based that fact-specific
determination on its finding that the intermediary did
“not receiv[e] assistance from the federal agency,” but
rather “provide[d] a service to another entity which is
eligible for assistance.” Id. (internal quotation marks and
citation omitted). The situation here is quite different.
For example, the 1958 Act authorizes the agency to “pro-
vide assistance to, and cooperate with” private farmers to
promote wildlife conservation, 16 U.S.C. § 661 (emphasis
added), and the CFAs allow the Service to provide assis-
tance to those farmers (in the form of permission to farm
on the refuges and various crop management decisions) to
promote wildlife conservation. Put another way, the
Service did not enter into the CFAs to obtain a service
from the farmers, but rather negotiated with them to
provide assistance that would further the goals of the
1958 and 1998 Acts. 8
Congress intended the FGCAA to provide federal
agencies with the “flexibility” to determine “whether a
given transaction or class of transactions is procurement
or assistance and, if assistance, whether the transaction
or class of transactions is to be associated with a type of
grant or cooperative agreement relationship.” S. Rep. No.
8 The dissent believes that our decision conflicts
with CMS because, like in CMS, “the CFAs here engage
third-party farmers merely as intermediaries that help
the Service fulfill its mission of feeding migratory birds.”
Dissent at 5 (citing CMS, 745 F.3d at 1386). Here, how-
ever, unlike in CMS, the Service remains substantially
involved in the activity, advising on decisions related to
crop selection, farming methods, pesticide and fertilizer
use, and crop harvest. J.A. 173–203, 212–27.
30 HYMAS v. UNITED STATES
95-449, at 10 (1977); see also id. (stating that “the mission
of the agency will influence the agency’s determination”
and that “the agency’s classification of its transactions
will become a public statement for public, recipient, and
congressional review of how the agency views its mission,
its responsibilities, and its relationships with the non-
federal sector”). 9 Because Congress did not require the
use of particular instruments in particular situations, it
left a gap for agencies to fill, and the Supreme Court has
stated that filling such gaps “involves difficult policy
choices that agencies are better equipped to make than
courts.” Brand X, 545 U.S. at 980 (citing Chevron, 467
U.S. at 865–86). Courts should exercise caution before
determining that any such decisions go beyond the policy
making realm that rests within the agency’s purview. See
Suramerica de Aleaciones Laminadas, 966 F.2d at 665.
That principle has particular importance in this case,
where the Claims Court’s judgment (if permitted to stand)
would severely undermine the Government’s ability to
negotiate cooperative agreements under appropriate
circumstances, as well as frustrate the Service’s attempts
to rely upon such agreements to accomplish its statutory
goals on over 100 refuges. Oral Argument at 8:00–26
(discussing effect on the Government generally), 10:20–27
(discussing effect on refuges), http://oralarguments.cafc.
9 The dissent takes issue with our citation to legis-
lative history, arguing that § 6303 is unambiguous in its
direction that an agency “shall use a procurement con-
tract” when the principal purpose is to acquire services for
the direct benefit or use of the United States. Dissent at
6. But we conclude that the CFAs do not have such a
principal purpose. Thus, as we explained above, the
“shall” language of § 6303—as well as the dissent’s com-
plaint about lack of its ambiguity and our reliance on
legislative history—is misplaced.
HYMAS v. UNITED STATES 31
uscourts.gov/default.aspx?fl=2014-5150.mp3.
C. Cooperative Agreements Are Not Subject to Tucker Act
Review
With the foundational questions answered, the court
must decide whether the Tucker Act confers jurisdiction
on the Claims Court to hear Mr. Hymas’s claims. Our
jurisprudence explains that the Claims Court’s jurisdic-
tion under 28 U.S.C. § 1491(b) “exclusively” concerns
“procurement solicitations and contracts,” Res. Conserva-
tion, 597 F.3d at 1245, and that “agencies escape the
requirements of federal procurement law” under the CICA
when “using a cooperative agreement.” CMS, 745 F.3d at
1381; see 31 U.S.C. §§ 6303, 6305 (distinguishing pro-
curement contracts from cooperative agreements);
COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 271 n.1
(4th Cir. 1999) (noting the distinction between “‘procure-
ment contracts’ and ‘cooperative agreements’” under the
FGCAA); accord S. Rep. No. 95-449, at 11 (1977) (explain-
ing that if an award changes from a procurement contract
to a grant, it need not comport with federal procurement
law). Thus, because the Service properly construed the
CFAs as cooperative agreements, the Claims Court must
dismiss Mr. Hymas’s action. Ex parte McCardle, 74 U.S.
at 514 (“Without jurisdiction, the court cannot proceed at
all in any cause.”). 10
CONCLUSION
The remaining arguments are unpersuasive. Accord-
ingly, the court vacates the Claims Court’s judgment and
remands for disposition consistent with this opinion,
10 Because the Claims Court does not possess juris-
diction over Mr. Hymas’s complaint, we need not address
its findings that the Service violated various federal
procurement laws and the APA when it entered into the
CFAs. See Appellant’s Br. 30–49.
32 HYMAS v. UNITED STATES
including the dissolution of the permanent injunction and
the dismissal of Mr. Hymas’s action.
VACATED AND REMANDED
COSTS
Each party shall bear its own costs.
United States Court of Appeals
for the Federal Circuit
______________________
JAY HYMAS, d/b/a DOSMEN FARMS,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2014-5150
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00291-SGB, Judge Susan G.
Braden.
______________________
STOLL, Circuit Judge, dissenting.
In CMS Contract Management Services v. Massachu-
setts Housing Finance Agency, we emphasized that when
the principal purpose of an agreement is to procure ser-
vices of a third party to help an agency achieve its mis-
sion, the proper instrument under the Federal Grant and
Cooperative Agreement Act (“FGCAA”) is a procurement
contract. 745 F.3d 1379 (Fed. Cir. 2014), cert. denied, 135
S. Ct. 1842 (2015). The FGCAA instructs that executive
agencies “shall use” a procurement contract when the
statutory criterion is met, as it was in this case. See
31 U.S.C. § 6303. Here, the United States Department of
the Interior’s Fish and Wildlife Service (“the Service”)
used cooperative farming agreements (“CFAs”) to obtain
farming services so that migratory birds, which the Ser-
2 HYMAS v. UNITED STATES
vice is obligated to protect, would be fed. The record
shows that the Service would have performed this task
itself had it not contracted with third-party farmers.
Based on this record, the principle purpose of the CFAs
was to acquire farming services to feed migratory birds, so
the Service was compelled to use a procurement contract,
not a cooperative agreement, when entering into the
CFAs. Yet, the majority defers to the Service’s decision on
whether to use a procurement contract or a cooperative
agreement for the CFAs. Such an approach is incompati-
ble with our decision in CMS and departs from the plain
language of the statute. I respectfully dissent.
I.
We explained in CMS that the FGCAA “sets forth the
type of legal instrument an executive agency must use
when awarding a federal grant or contract.” CMS,
745 F.3d at 1381. Moreover, we indicated in CMS that
“[w]hether a contract is a procurement contract or a
cooperative agreement is a question of law,” which we
review de novo. Id. at 1385 (citing Maint. Eng’rs v. Unit-
ed States, 749 F.2d 724, 726 n.3 (Fed. Cir. 1984) (“Deter-
mination of the type of contract is a matter of law—not
controlled by a label in the contract.”). In my view, CMS
is squarely on point with the facts of this case and con-
trols the outcome.
In CMS, we reviewed agreements that the Depart-
ment of Housing and Urban Development (“HUD”) had
entered into with local public housing authorities for
compliance with the FGCAA. CMS, 745 F.3d at 1381.
Those agreements had the local housing authorities
administer contract payments with housing project own-
ers rather than HUD, which had traditionally adminis-
tered such payments. HUD both provided the local
housing authorities with funds for paying the project
owners and paid the local housing authorities an operat-
ing fee for their services. HUD characterized the agree-
HYMAS v. UNITED STATES 3
ments at issue as “cooperative agreements.” CMS, Joint
App’x at AR85.
Responding to protests filed by non-selected local
housing authorities, we looked to the primary, or princi-
pal, purpose of the agreements, as commanded by the
statutory text. See 31 U.S.C. §§ 6303, 6305. We held that
“the primary purpose of the [HUD agreements] is to
procure the services of the [local housing authorities] to
support HUD’s staff and provide assistance to HUD with
the oversight and monitoring of Section 8 housing assis-
tance.” CMS, 745 F.3d at 1385. Citing the record, we
explained that HUD entered into the contracts with local
housing authorities so that HUD staff—who would other-
wise be responsible for administering payments to project
owners—could focus on other tasks. Id. We recognized
that by providing a service on behalf of HUD, the local
housing authorities had formed an intermediary relation-
ship with HUD, and concluded that, “in the case of an
intermediary relationship, the proper instrument is a
procurement contract.” Id. at 1386 (internal quotation
marks omitted).
Here, the Claims Court determined that the principal
purpose of the CFAs was to assist the Service in fulfilling
its mission to feed migratory birds:
In this case, the intended beneficiaries are the
migratory birds and wildlife on the refuges. The
farmer-cooperators are intermediaries. The Ad-
ministrative Record demonstrates that the Service
contracted with farmer-cooperators, not to benefit
them financially, but to obtain their services to
provide food for migratory birds and wildlife, in
exchange for the farmers’ personal use of public-
owned lands.
Hymas v. United States, 117 Fed. Cl. 466, 487 (2014).
4 HYMAS v. UNITED STATES
The record confirms the Claims Court’s determina-
tion. In administering the National Wildlife Refuge
System, the Service has a mission to “provide for the
conservation of fish, wildlife, and plants, and their habi-
tats within the System.” 16 U.S.C. § 668dd(a)(4)(A). To
fulfill its mission, the Service is required to generate and
comply with a comprehensive plan for managing the
refuges under its control. 16 U.S.C. § 668dd(e). The
comprehensive plan the Service established for the
McNary and Umatilla Refuges indicates that “cropland
farming management is a critical Refuge operation in
meeting purposes of the Refuge,” including purposes such
as “waterfowl management.” J.A. 162–63. Further, the
Service’s cropland management plans explain that
croplands on the Refuges are “primarily managed for the
benefit of waterfowl.” J.A. 74, 92.
With that mission in mind, the Service contemplated
three alternative options for cropland farming on the
Refuges. Under the first option, the Service staff would
produce crops. Specifically, “all crop production would be
conducted by Refuge staff and all costs associated with
farming (water, seed, fertilizer, etc.) paid for with Refuge
funds.” J.A. 77, 96. The two other options involved third
parties, with the Service contracting with farmers to
cultivate the land and provide crops for the birds in
exchange for either pay or, as in the CFAs at issue in this
case, crops.
The Service’s plans go on to describe a CFA as “a ne-
gotiated agreement between the Refuge and private
farmer to produce crops for both parties.” J.A. 79, 98
(emphasis added). “In return” for bearing the costs of
production and “producing a specified amount of crops for
the Refuge, the [farmer] is allowed to harvest and sell the
remaining crops.” Id. To provide sufficient crops for the
farmer to take as his own, CFAs require the Service to
cede much more land to farmers than the farm-for-pay
option, which shows that the difference between option
HYMAS v. UNITED STATES 5
two—paying the farmers money in exchange for farm-
ing—and option three—paying the farmers share in crops
in exchange for farming—is not a meaningful one.
Based on the record before us, the Claims Court did
not err in concluding that the principal purpose of the
CFAs is to “acquire (by purchase, lease, or barter) property
or services for the direct benefit or use of the United
States Government.” 31 U.S.C. § 6303 (emphasis added).
Similar to the agreements in CMS, for which we found
that the local housing authorities were “merely used to
provide a service to another entity which is eligible for
assistance,” the CFAs here engage third-party farmers
merely as intermediaries that help the Service fulfill its
mission of feeding migratory birds. CMS, 745 F.3d at
1386. Also as in CMS, but for the farmers, the Service
would have undertaken the contracted-for service itself.
Furthermore, the crop management plans’ description of
cooperative agreements being “negotiated” and of the
farmer receiving a portion of the harvested crops “in
return” for his services strongly suggests a quid pro quo
relationship. J.A. 79, 98. These facts indicate that the
CFAs embodied Service acquisitions, not a transfer of a
thing of value as the Service argues.
II.
Despite the majority’s assertions to the contrary, the
FGCAA does not grant agencies flexibility in determining
when to use a particular instrument in government
contracting. Quite the opposite, the statute directs that
an executive agency:
shall use a procurement contract as the legal in-
strument . . . when the principal purpose of the
instrument is to acquire (by purchase, lease, or
barter) property or services for the direct benefit
or use of the United States Government.
31 U.S.C. § 6303 (emphasis added).
6 HYMAS v. UNITED STATES
It is well-established that “shall” is ordinarily the lan-
guage of statutory command; it is not generally permis-
sive or subject to agency interpretation. Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998) (“[T]he mandatory ‘shall’ . . . normally creates an
obligation impervious to judicial discretion.”); see also
Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The word
‘shall’ is ordinarily the language of command.”) (quoting
Anderson v. Yungkau, 329 U.S. 482, 485 (1947)); Miller v.
French, 530 U.S. 327, 337 (2000) (refusing to interpret the
mandatory term “shall” as permissive). It is also true
that in construing statutes, “[w]e must enforce plain and
unambiguous statutory language according to its terms.”
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,
251 (2010). This clear statutory text belies the majority’s
conclusion that “Congress did not require the use of
particular instruments in particular situations.” Maj.
Op. 30 (emphasis in original).
Another central precept of statutory interpretation
warns that when “[g]iven [a] straightforward statutory
command, there is no reason to resort to legislative histo-
ry.” United States v. Gonzales, 520 U.S. 1, 6 (1997). With
this in mind, the majority’s approach of relying on legisla-
tive history to discern the FGCAA’s intended purpose,
rather than applying the statute’s unambiguous com-
mand, is misguided. But even if the statute were unclear,
there would be no need to resort to legislative history
because the FGCAA itself states its purpose: to “prescribe
criteria for executive agencies in selecting appropriate
legal instruments.” 31 U.S.C. § 6301(2) (emphasis added);
see BLACK’S LAW DICTIONARY 1373 (10th ed. 2014) (defin-
ing “prescribe” as “to dictate, ordain, or direct; to establish
authoritatively (as a rule or guideline)”).
Thus, because the principle purpose of the CFAs
aligns with the criterion outlined in 31 U.S.C. § 6305, it is
incorrect for the majority to assert that Congress “left a
gap for agencies to fill” when determining what legal
HYMAS v. UNITED STATES 7
instrument to use. Maj. Op. 30. For if “Congress has
spoken clearly on the disputed question, then ‘that is the
end of the matter’” and there is no gap for the Service to
fill. City of Arlington v. FCC, 133 S. Ct. 1863, 1875 (2013)
(quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842, (1984)). Applying that teaching to
this case, the Service should not receive deference to its
choice of legal instrument for entering into the CFAs with
farmers. Because the Claims Court properly concluded
that the principal purpose of the CFAs is to “acquire (by
purchase, lease, or barter) property or services for the
direct benefit or use of the United States Government,”
the FGCAA instructs that a procurement contract should
be used. 31 U.S.C. § 6303.
CONCLUSION
Given our interpretive guidance in CMS and the
plainly worded command of the FGCAA, I would uphold
the Claims Court’s determination that the CFAs at issue
here must be entered into as procurement contracts,
giving the Claims Court subject matter jurisdiction under
the Tucker Act and subjecting the CFAs to federal pro-
curement laws such as the CICA. For the foregoing
reasons, I respectfully dissent.