# 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

______________________

J AMES P. S CHAEFER , P ro Bono Law, Palo Alto, CA, a rgued for plaintiff -appellee.

D OUGLAS G LENN E DELSCHICK , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant

- appellant. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., D EBORAH A. B YNUM ; S HERRY K INLAND K

ASWELL , E DWARD T. K EABLE , H ILARY C. T OMPKINS , J AMES L. W EINER , Office of the Solicitor, United States Department of the Interior, Washington, DC.

______________________HYMAS v. UNITED STATES 2

Before P ROST , Chief Judge, W ALLACH and S TOLL , Circuit Judges.
Opinion for the court filed by Circuit Judge W ALLACH

. Dissenting opinion filed by Circuit Judge S TOLL

. W ALLACH , 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, d oing business as Dosmen Farms. Hymas v. United S tates , 117 Fed. Cl. 466, 48 6–88 (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 (“M cNary Refuge”). Id. at 500

– 506. We
vacate the Claims Court’s decision and remand with instructions to dismiss Mr. Hymas’s case.

B ACKGROUND 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 habitatHYMAS 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 perfor mance of the CFAs; instead,

c ooperators typically retain 75 percent of the crop yield for their efforts . T he 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 manag ement plans for the Umatilla and McNary Refuges. The plans call for “ T enure Arrangements ” through which “[c]oope rators 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 Umati lla.” J.A. 90. It serves as “an important migration and wintering area for waterfowl and other bi r ds in the C olumbia River Ba sin.” J.A. 90. The McNary Refuge covers more than 15,000 acres “near the confluence of the C olumbia and Snake Rivers in southeastern Washington” and “ was established as mitigat ion for the wildlife habitat losses caused by the flooding of the Columbia Riv er corr idor 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 nu mbers of mallards and other subspecies of Canada

gee se

. . . .” J.A. 73.HYMAS v. UNITED STATES 4

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, Wash ington, 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 e xpressed his interest in a CFA to the Service, he “indicated that he had not participated in a Natio nal Wildlife Refuge Cooperative Farming Program, nor was he a former landowner or tenant of acquired lands.” J.A. 209. According to the Service, Mr. Hymas “also indicated that he farmed the local vicinity but did not provide any location information to v erify these activi ties.” J.A. 209.
The Service considered Mr. Hymas, but ultimately selected 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

yea r 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 refu ge. 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 variousHYMAS 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

. M r. Hymas ’s Amended Complaint alleges that

the Service’s use of a non

- competitive bidding pr ocess 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 discr etion, and contrary to law [under the APA] (Count III).

Id. at 482. Mr. Hymas filed a M otion for J udgme nt on the A dministrative R ecord, and the Government filed a M otion to D ismiss for lack of subject matter jurisdiction and a C ross -M otion for J udgment upon the A dministr ative R ecord. Id.
In July 2014, the Claims Court denied the Gover nment’s motion to dism iss, 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 “pr ocurement” 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,” t hat 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 proced ures to obtain full and open compet ition. Id. at 496. The Claims Court found that neither the Fish and Wildlife Coordination Act of 19 58 (“the 1958HYMAS v. UNITED STATES 6

Act ”), Pub. L. No. 85

- 624, 72 Stat. 563 (1958) (codified as amended at 16 U.S.C. §§ 661

– 66 4 (2012) ) , nor t he Natio nal 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 Par tnership 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 e xempt 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 permanent ly enjoin ed the Service “from entering into any [CFAs] or other contractual vehicles concerning the McNary and Umatill a 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 i n 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 th at judgment. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012)

. D ISCUSSION

I. Standard of Review

“ [A] federal court [must] satisfy itself of its jurisdi ction 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 dismissingHYMAS 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). T he 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 a lleged 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 Su bject 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 juri sdiction to entertain the suit.’” United States v. Testan

, 424 U.S. 392, 399 (1976) (quoting United States v. She rwood , 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 State s , 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 pr oposals for a proposed contract or t o 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

.HYMAS v. UNITED STATES 8

28 U.S.C. § 1491(b)(1) (emphasis added). Commonly known as “bid protest jurisdiction,” th is court h as 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 124 2– 45 (discussing the statutory text and legi slative history of § 1491(b) ).

As is occasionally necessary in deciding the param eters 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 135 7, 1361 (Fed. Cir. 2014) (same) . Specifically, we must first decide whether the Service ha s statutory authority to enter into cooperative agreements. If it does not, then the Service could only have negotiated procur ement 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 reso lve 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 f irst 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 interpret ation using the two

- pronged framework established by Chev ron, U.S.A. , Inc. v. Natural Resources Defense Cou n-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 expre ssed intent of Congress.” Id. at 842

– 43. If the statute does not answer the specific que stion, 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 sta tute by reg ulation.” 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, an d 1998 Acts do not exempt the CFAs from what the CICA d emands. Hymas , 117 Fed. Cl. at 498

– 500. The Gover nment argues that the Claims Court failed to defer to the Service’s permissible interpretation of the se 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 Co nserva tion 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 co mbating diseases, and in developing a Nation

- wide program of wild

- life conse r-HYMAS v. UNITED STATES 10

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 assis tance 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 Conser vation 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 admi nistered” 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 express ly 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 expres s rulemaking authority of that

2 In 1939, President Roosevelt transferred two b ureaus operating within the United States Department s of Agriculture and Commerce , respectively, to the United States Department of the Interior and in 1940 cons olida ted them into what later became known as the “Fish and Wildlife Service .” See Reorganization Plan No. III , 54 Stat. 1231, 1232 (19 40 ) (effective June 30, 1940) (consol idated, 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”:

C

ooperative agreements with persons for crop cu ltivation, haying, grazing, or the harvest of vege t ative 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 arg ument that , by authorizing the use of “cooperative agre ements” rather than “procurement contracts,” the 19 58 Act (which, in amending the 1 934 Act, retained the “cooper ative agreement” provision of the 1946 Act ) exempts the Service’s CFAs from the competitiv e 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 defin ition 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, s ec. 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 processHYMAS v. UNITED STATES 12

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 aft er 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 sim ilarly 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.

T he 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 compl ement 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 amen dments and corrections as will remove ambiguities, contr adictions, and other imperfections”)

. And nothing in the legislative history accompanying the CICA and the 2011 amendment war rants a different conclusion. See genera lly H.R. Rep. No. 1 11

- 42 (20 09), 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 a bsence of any indication to the contrary in the statute or the legislative history, t he 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.

, UnitedHYMAS 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 author ity 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 , 11 7 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 “organiz ations,” the Claims Court found the 1958 Act inapplicable. Hymas , 117 F ed. 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 wil dlife” and that it “has nothing to do with c ooperative far ming 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 5 02. As a result, the Claims Court dete rmined th at 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 “pu blic 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 constru ction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows fr om 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,HYMAS v. UNITED STATES 14

for which we may co nsult 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, comp any , or interest

. ” Private

, Webster’s Third New Int ern ational Dictionary of the English Language Unabridged (1986) (“Webster’s”) . “Organization” involves an “ admi nistrative and functional structure of an organization” such “as a business.” Organization

, id. A business reflects a “commercial enterprise carried on for profit” and enco mpasses, 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 whi ch 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 altern ative definitions and conceivably could cover other entities

. Private , Webster’s ; Organization

, id. ; see also Business Enterprises , Black’s Law Dictionary (describing d ifferent business structures). “The existence of alternative di ctionary 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 ambigu ity. 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 publicHYMAS 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. § 66 1 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 Serv ice’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 age ncy’s interpretation that the agency maintained for more than eighty years); see also Youn g v. Cmty. Nutrition Inst. , 476 U.S. 974, 983 (1986) (“[A] congressional failure to revise or repeal the agency’s interpretation is persu asive 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 diffe rent result. First, the Claims Court concluded that coord ination between the Service and private farmers “make[s] [no] sense within the context of the statute,” Hymas , 117 Fed. Cl. at 502

, but that ips e 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 sta te 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); s ee Final Rules , 25 Fed. R eg. at 8,413. Third, the Claims Court relied upon theHYMAS v. UNITED STATES 16

principle of ejusdem generis to find the phrase “public or private agencies and organizations” unambiguous, 3 Hymas , 117 Fed. Cl. at 502, but that canon “comes into play only when there is some uncertai nty 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 tha t 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 con strued 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 ”) —a lso permits the Service to negotiate cooperative agreements.

2. The Claims Court’s Construction Conflicts with the 1998 Act ’s Unambiguous Terms and Legislative History

A fter 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 partne r3 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, Co ngress 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

s ec. 5, 16 U.S.C. § 74 2f(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 o r more projects or programs for a refuge or complex of geographically related refuges in a ccordance with the purposes of this subsection and in compliance with the policies o f 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
t hrough constructing, operating, maintaining, or impro ving 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 focuse s on “‘voluntary programs or community partnerships,’” not “contractual arrangements whereby farmer

- cooperators use pu blicHYMAS v. UNITED STATES 18

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 A mendment s 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. N o. 108

- 385 (2003)

, r eprinted 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 A mendment s , “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 pe rmits 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 r esources 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 co nstructing, 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 p roblematic. W hen it passed the 1998 Act

, Congress identified three broad purposes that included, among other goals, the facilitation of “partnerships b etween the [National Wildlife Refuge System] and non

Federal entities to promote public awareness of the r esources of the System and public participation in the conservation of those resources” and the encouragement of “donations and othe r 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 Ref ining & 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 exis ting 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 Cou rt’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, compe ting views of the public interest, but rather to respect legitimate policy choices made by the agency in interpre ting and applying the statute.” Suramerica de AleacionesHYMAS v. UNITED STATES 20

Laminadas, C.A. v. United States , 966 F.2d 660, 665 (Fed. Cir. 1992). We decline to chart a dif ferent 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 s uch agreements need not comply with the CICA in analogous circumstances

. See CMS Contra ct Mgmt. Servs. v. Mass. Hous. Fin. Agency , 745 F.3d 1379, 138 1 (Fed. Cir. 2014) (holding that “agencies escape the requirements of federal procurement law” under the CICA when “using a cooper ative agreement”).
Taken together, the 1958 and 1998 Acts, as am ended,

a re 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 Cooper ative Agreements
Having determined that the statu t ory 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 pr ocurement contr act or a cooperative agreement is a que stion 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 iss ue as cooper ative agreements.

Various statutes address legal instruments under fe deral law. “Statutory interpretation begins with the la nguage of the statute.” Norfolk Dredging Co. v. United States , 375 F.3d 1106, 1110 (Fed. Cir. 2004) (citing Wi lliams v. Taylor , 529 U.S. 420, 431 (2000)). “ A courtHYMAS 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 obser ved, the Claims Court’s bid protest jurisdiction under 28 U.S.C. § 1491(b)(1) speaks “ excl usively ” to “procurement solicitations and contracts.” Res. Conservation , 597 F.3d at 1245 (emphasis added) . B ecause the Tucker Act does not define the term “procu rement” 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) (cit ation omitted); 4 see also 41 U.S.C. § 1 11 (defining “pr ocurement” to cover “all stages of the process of acquiring property or services, beginning with the process for d etermining a need for property or services and endin g with contract completion and closeout”).

4 When Congress amended the CICA and reo rganized Title 41 of the United States Code in 2011, it moved the definition of “procurement” from 41 U.S.C. § 403(2) to § 111. S ec. 3, § 111, 124 Stat. at 3681

. Di str ibuted Solutions cites to the definition under § 403(2)

. 539 F.3d at 1345.HYMAS v. UNITED STATES 22

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 relatio nships they reflect; and (C) a better understanding of the responsibilities of the parties to them.” 31 U.S.C. § 6301(2). Congress intend s 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, Co ngress distinguish ed “procurement contract [s] ” from “coo perative agreements” in the FGCAA. Id. §§ 6303 (explaining when executive agencies “shall use” procur ement contracts), 6305 (explaining when executive age ncies “shall use” cooperative agreements). 5

5 The d issent states that “the FGCAA does not

g rant 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 co ntract. Dissent at 5–6

. Congress’s use of “shall” in § 6303 is not dispositive

. The dissent overlooks Congress’s other directive s as to when a n agency “shall” use grants andHYMAS v. UNITED STATES 23

In particular, the FGCAA requires that “[a]n exec utive 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.” I

d. § 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) prope rty 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, lo cal 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 whethe r 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 selec t 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 substa ntive 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).HYMAS v. UNITED STATES 24

The Claims Court determined that the CFAs const ituted 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; Di stributed 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 su pported 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 A dministrative 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 publ ic

owned lands. The fact that farmer -cooperators may profit from this arrangement does not change their status as intermediaries. As such, the coo perative farming agreements in this case are pr ocurements, subject to the Tucker Act.

Id. at 487 (footnote a nd 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 court s . . . have found uniformly that no Chevron deference is given because the task of determinin g a federal court’s jurisdiction falls to the court, not an age ncy.” Id. at 488 (brackets, internal quotation marks, and citation omitted).

The Claims Court ’s holdings and Mr. Hymas’s arg uments rest in large part upon the faulty premise that theHYMAS v. UNITED STATES 25

definitio n 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 procur ement 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. § 1 11 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 Soluti ons or in CMS that courts must construe instr uments 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

, s ee Norfolk Dredging Co. , 375 F.3d at 1111, as well as offend the well

- established can on that courts should avoid constructions that would render statutory text “superfl uous.” 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 (explaini ng that overlapping statutes may be given effect so long as there is no “positive repugnanc y ” between them). But see 360Training.com, Inc. v. United States

, 104 Fed. Cl. 575, 58 6–8 7 (2012) (relying solely upon 41 U.S.C. § 111 and declining to consider the FGCAA to

6 Counsel for both parties acknowledged at oral a rgument 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/d efault.aspx?fl=20 14

- 5150.mp3

.HYMAS v. UNITED STATES 26

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 a pproach. For example, the court in CMS considered defin itions 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 co ntext in which Congress enacted the definition of “pr ocurement” in 41 U.S.C. § 111. Congress legislated against the backdrop of the 1978 FGCAA when , in 2011, it d efined “procurement” in 41 U.S.C. § 111. “Congress is

presum ed to enact legislation with knowledge of the law and a newly

- enacted statute is presumed to be harmon ious with existing law and judicial concepts.” Aectra Ref ining & Mktg. , 565 F.3d at 1370. Congress presum ably 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 principallyHYMAS v. UNITED STATES 27

intended to “transfer a thing of value” to the private farmers “to carry out a public purpose of support or stim ulation 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 c ooperative 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 val ue (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 assi stance to, and cooperate with,

. . . public or private age ncies 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 di spute 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 co ntracts because the agency did not intend to acquire far ming “services” for the “direct benefit or use of the United States Government.” 31 U.S.C. § 6305(1); see 41 U.S.C. § 111 (defin ing “procurement” as encompassing “all stages of the process of acquiring property or services”). True, the CFAs indirectly benefit the Service since the privateHYMAS v. UNITED STATES 28

farmers’ activities advance the agency’s overall mission, but th at is true for nearly all coo perative 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 s hares are all used by wildlife in the field” or r etained 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 regar ding 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 d issent states that “the crop management plans’ description of cooperative agreements being ‘neg otiated’ and of the farmer receiving a portion of the ha rvested crops ‘in return’ for his services strongly suggests a quid pro quo relationship” indicative of “acquisitions” secured through a procurement contract. Dissent at 5. Th e argument is ipse dixit , and in any case, the natural corollary to that argument is that no negotiation or e xchange occurs when “the principal pur pose of the rel ationship 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. § 6 305(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 (cit ation omitted). H owever, 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 quota tion marks and citation omitted). The situation here is quite different. For example, the 1958 Act authorizes the agency to “pr ovide assistance to, and cooperate with” private farmers to promote wildlife conservation, 16 U.S.C. § 661 (emphasis added), an d the CFAs allow the Service to provide assi stance 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 obta in a service from the farmers, but rather negotiated with them to provide assistance that would further the goals of the 1958 and 1998 Act s. 8
Congress intended the FGCAA to provide federal

agenc ies with the “flexibility” to determin e “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 d issent believes that our decision conflicts with CM S 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, ho wever, 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.HYMAS v. UNITED STATES 30

95

- 449, at 10 (1977) ; see a lso 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 fi lling 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 –2 6 (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 legi slative his tory, arguing that § 6303 is unambiguous in its direction that an agency “shall use a procurement co ntract” 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 co mplaint about lack of its ambiguity and our reliance on legislative hi story

— 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 questio ns 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 jurisdi ction under 28 U.S.C. § 1491(b) “exclusively” concerns “procurement solicitations and contracts,” Res. Conserv ation , 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 pr ocurement 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 “‘procur ement contracts’ and ‘cooperative agreements’” under the FGCAA); accord S. Rep. No. 95

- 449 , at 11 (1977) (explai ning 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 M r. Hymas’s action. Ex parte McCardle , 74 U.S. at 514 (“Without jurisdiction, the court cannot proceed at all in any cause.”)

. 10

C ONCLUSION

T he remaining arguments are unpersuasive. Accor dingly, the court vacates the Claims Court’s judgment and remands for disposition consistent with this opinion

,

10 Because the Claims Court does not pos sess juri sdiction 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.HYMAS v. UNITED STATES 32

including the dissolution of the permanent injunction and the dismissal of Mr. Hymas’s action

. VACATED AND REMANDED

C OSTS 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.

______________________ S TOLL , Circuit Judge , dissenting

. In CMS Contract M ana gem ent Services v. Massach usetts Hous ing Finance Agency , we emphasized that when the principal purpose of an agreement is to procure se rvices of a third party to help an agency achieve its mi ssion, 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
statu tory 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 Se r-HYMAS v. UNITED STATES 2

vice is obligated to protect , w ould be fed

. The record shows that the Service would have performed this task itself had it not contracted with third

- party farmers. Based on th is 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, t he 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 incompat ible with o ur 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 con tract.” 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 ques tion of law,” which we review de novo. Id. at 1385 (citing Maint. Eng’rs v. Uni ted States , 749 F.2d 724, 726 n.3 (Fed. Cir. 1984) (“ Dete rmination 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 co ntrols the outcome

. In CMS

, we reviewed agreements that the Depar tment 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. Tho se agreements had the local housing authorities administer contract payments with housing project ow ners rather than HUD, which had traditionally admini stered such payments. HUD both provided the local housing authorities with funds for paying the project owners and paid the local housing authorities an opera ting fee for their services. HUD characteriz ed the agre e-HYMAS v. UNITED STATES 3

ments at issue as “cooperative agreements.” CM S , Joint App’x at AR85.
Responding to protests filed by non -selected local housing authorities, we looked to the primary, or princ ipal, purpose of the agreements, as commanded by the statutory text. See 31 U.S.C. §§ 6303, 6305 . We held that

“ the primar y 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 assi stance. ” CMS

, 745 F.3d at 1385. Citing the rec ord, we explained that HUD entered into the contracts with local housing authorities so that HUD staff

— who would othe rwise be responsible for administering payments to project

owners— could focus on other tasks. Id. We recognized that by providing a servi ce on behalf of HUD, the local housing authorities had formed an intermediary relatio nship 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. T he farmer

- cooperators are intermediaries. The A dministrative 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 exchan ge for the farmers’ personal use of public

owned lands.
Hymas v. United States , 117 Fed. Cl. 466, 487 (2014)

.HYMAS v. UNITED STATES 4

T he record confirms the Claims C ourt’s determin ation

. In administering the National Wildlife Refuge System, the Service has a mission to “ provide for the conservation of fish, wildlife, and plants, and their h ab itats 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.

W ith that mission in mind , the Service contemplated three a lternative options for cropland farming on the Refuges

. Under the first option, the Service staff would produce crop s

. Specifically, “all crop production would be conducted by R efuge staff and all costs associat ed with farming (water, seed, fertilizer, e tc.) paid for with R efuge funds. ” J.A. 77, 96. The two other options involved third parties, with the Service contracting with fa r mers 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 n egotiated 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. T o 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 -p ay option , which shows that the difference between optionHYMAS v. UNITED STATES 5

two

— paying the farmers money in exchange for far ming

— 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 C ourt 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 ag reements in CMS

, for which we found that the local housing authorities were “ merely used to provide a service to another entity which is eligi ble 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. A lso a s in CMS , but for the farmers, the Service would have undertaken the contracted

- for service itself. Furthermore, the crop management plans’ description of cooperat ive 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, t h e statute directs that

an exec utive agency:

shall use a procurement contract as the legal i nstrument

. . . 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)

.HYMAS v. UNITED STATES 6

It is well

- established that “shall” is ordinarily the la nguage of statutory command; it is not generally permi ssive or subject to agency interpretation. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26, 35 (1 998) (“[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 ordi narily the language of command

. ”) (q uoting Anderson v. Yungkau , 329 U.S. 482, 485 (1947) ); Miller v. French , 530 U.S. 327, 337 (2000) (refusing to interpret the mandato ry term “shall” as permissive). It is also true that in construing statutes, “[w] e must enforce plain and unambiguous statu tory 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 legislati ve hist ory .” United States v. Gonzales , 520 U.S. 1, 6 (1997) . With this in mind, the majority’s approach of relying on legisl ative history to discern the FGCAA’s intended purpose, rather than applying the statute’s unambiguous co mmand, is misguided. But even if the statute were unclear, there would be no need to resort to legislative histo ry because the FGCAA itself states its purpose : to “ prescribe criteria for executive agencies in selecting appropriate legal instruments .” 31 U.S.C. § 6301(2) (emphasi s added);

see B LACK ’ S L AW D ICTIONARY 1373 (10th ed. 2014) (defi ning “prescribe” as “ t o 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 legalHYMAS 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. Re s. Def. Council, Inc.

, 467 U.S. 837, 842, (1984) ). Applying that teaching to this cas e, 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) proper ty 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.

C ONCLUSION

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 pr ocurement laws s uch as the CICA

. For the foregoing reasons, I respectfully dissent

.