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, argued 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 management 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 Umatilla.” J.A. 90. It serves as “an important migration and 

wintering area for waterfowl and other birds in the Columbia River Basin.” J.A. 90. The McNary Refuge covers 

more than 15,000 acres “near the confluence of the Columbia and Snake Rivers in southeastern Washington” 

and “was established as mitigation for the wildlife habitat 

losses caused by the flooding of the Columbia River corridor 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 numbers 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 expressed 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. According 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 selected other cooperators. In 2013, the Service awarded 

four CFAs with one-year terms and two CFAs with multiyear terms. See J.A. 173, 178, 183, 188 (CFAs with oneyear 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 process 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 discretion, 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 Administrative Record. Id.

In July 2014, the Claims Court denied the Government’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 “procurement” 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 competition. 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 National 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 Partnership 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 exempt 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 jurisdiction 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 alleged 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 jurisdiction to entertain the suit.’” United States v. Testan, 

424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 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 proposals 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 parameters 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 procurement 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 interpretation 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 question, 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 statute 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 demands. Hymas, 117 Fed. Cl. at 498–500. The Government 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 Conservation 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 administered” 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 bureaus operating within the United States Departments of 

Agriculture and Commerce, respectively, to the United 

States Department of the Interior and in 1940 consolidated 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) (consolidated, 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 cultivation, haying, grazing, or the harvest of vegetative 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 argument that, by authorizing the use of “cooperative agreements” rather than “procurement contracts,” the 1958 Act 

(which, in amending the 1934 Act, retained the “cooperative 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 definition 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 similarly 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 amendments and corrections as will remove ambiguities, contradictions, and other imperfections”). And nothing in the 

legislative history accompanying the CICA and the 2011 

amendment warrants a different conclusion. See generally 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 absence 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 authority 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 “organizations,” 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 wildlife” and that it “has nothing to do with cooperative farming 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 determined 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 “public 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 construction 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, company, or interest.” Private, Webster’s Third New International Dictionary of the English Language Unabridged 

(1986) (“Webster’s”). “Organization” involves an “administrative and functional structure of an organization” such 

“as a business.” Organization, id. A business reflects a 

“commercial enterprise carried on for profit” and encompasses, 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 alternative 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 dictionary 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 ambiguity.

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 agency’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 persuasive 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 different result. First, the Claims Court concluded that coordination 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 Hymas, 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 partner3 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, Congress 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 accordance 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 improving 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), reprinted 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 permits 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 resources 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 constructing, 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 between the [National Wildlife Refuge System] and nonFederal entities to promote public awareness of the resources 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 newlyenacted statute is presumed to be harmonious with existing 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, competing views of the public interest, but rather to respect 

legitimate policy choices made by the agency in interpreting 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 cooperative 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 Cooperative 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 procurement contract or a cooperative agreement is a question 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 cooperative agreements.

Various statutes address legal instruments under federal law. “Statutory interpretation begins with the language of the statute.” Norfolk Dredging Co. v. United 

States, 375 F.3d 1106, 1110 (Fed. Cir. 2004) (citing Williams 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 “exclusively” to “procurement solicitations and contracts.” Res. 

Conservation, 597 F.3d at 1245 (emphasis added). Because the Tucker Act does not define the term “procurement” 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) (citation omitted);4 see also 41 U.S.C. § 111 (defining “procurement” to cover “all stages of the process of acquiring 

property or services, beginning with the process for determining a need for property or services and ending with 

contract completion and closeout”).

4 When Congress amended the CICA and reorganized 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. Distributed 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 relationships 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, Congress distinguished “procurement contract[s]” from “cooperative agreements” in the FGCAA. Id. §§ 6303 

(explaining when executive agencies “shall use” procurement contracts), 6305 (explaining when executive agencies “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 contract. 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 executive 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) property 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 substantive 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 constituted procurement contracts because in its view the 

Service uses them “to obtain the services of farmercooperators 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; Distributed 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 supported 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 Administrative 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 publicowned lands. The fact that farmer-cooperators 

may profit from this arrangement does not change 

their status as intermediaries. As such, the cooperative farming agreements in this case are procurements, 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 agency.” Id. at 488 (brackets, internal quotation marks, and 

citation omitted).

The Claims Court’s holdings and Mr. Hymas’s arguments 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 procurement 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 instruments 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 “superfluous.” 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 argument 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 approach. For example, the court in CMS considered definitions 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 context in which Congress enacted the definition of “procurement” in 41 U.S.C. § 111. Congress legislated against 

the backdrop of the 1978 FGCAA when, in 2011, it defined “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 harmonious with existing law and judicial concepts.” Aectra 

Refining & Mktg., 565 F.3d at 1370. Congress presumably 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 stimulation 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 assistance to, and cooperate with, . . . public or private agencies 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 dispute 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 contracts because the agency did not intend to acquire farming “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 retained 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 regarding 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 ‘negotiated’ and of the farmer receiving a portion of the harvested 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 exchange occurs when “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.” 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 (citation 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 “provide 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 assistance 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, however, 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 nonfederal 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 legislative history, arguing that § 6303 is unambiguous in its 

direction that an agency “shall use a procurement contract” 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 complaint 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 jurisdiction under 28 U.S.C. § 1491(b) “exclusively” concerns 

“procurement solicitations and contracts,” Res. Conservation, 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 procurement 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 “‘procurement contracts’ and ‘cooperative agreements’” under the 

FGCAA); accord S. Rep. No. 95-449, at 11 (1977) (explaining 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. Accordingly, the court vacates the Claims Court’s judgment and 

remands for disposition consistent with this opinion, 

10 Because the Claims Court does not possess jurisdiction 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. Massachusetts Housing Finance Agency, we emphasized that when 

the principal purpose of an agreement is to procure services of a third party to help an agency achieve its mission, 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 incompatible 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. United States, 749 F.2d 724, 726 n.3 (Fed. Cir. 1984) (“Determination 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 controls the outcome. 

In CMS, we reviewed agreements that the Department 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 owners rather than HUD, which had traditionally administered such payments. HUD both provided the local 

housing authorities with funds for paying the project 

owners and paid the local housing authorities an operating 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 principal, 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 assistance.” 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 otherwise 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 relationship 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 Administrative 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 publicowned lands. 

Hymas v. United States, 117 Fed. Cl. 466, 487 (2014). 
4 HYMAS v. UNITED STATES

The record confirms the Claims Court’s determination. In administering the National Wildlife Refuge 

System, the Service has a mission to “provide for the 

conservation of fish, wildlife, and plants, and their habitats 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 negotiated 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 farming—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 instrument . . . 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 language of statutory command; it is not generally permissive 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 history.” United States v. Gonzales, 520 U.S. 1, 6 (1997). With 

this in mind, the majority’s approach of relying on legislative history to discern the FGCAA’s intended purpose, 

rather than applying the statute’s unambiguous command, 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) (defining “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 procurement laws such as the CICA. For the foregoing 

reasons, I respectfully dissent.