Hymas v. USA

Filing 80

ORDER ON PENDING MOTIONS denying 73 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 75 Motion to Appoint Counsel ; denying 77 Motion. Signed by Judge Salvador Mendoza, Jr. (AY, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Nov 30, 2016
SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JAY HYMAS d/b/a DOSMEN
FARMS,
Plaintiff,

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ORDER ON PENDING MOTIONS

v.

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No. 4:16-CV-5091-SMJ

THE UNITED STATES,
Defendant.

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Before the Court are Defendant the United States’ (the Government) Motion
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to Dismiss, ECF No. 73, and Plaintiff Jay Hymas’s Motions for Order to Include
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Class Action Status Per Rule 23 and Motion for Appointment of Counsel, ECF No.
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75, and Motion for Oral Argument, ECF No. 77. The Government seeks dismissal
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of Hymas’s claims for lack of subject matter jurisdiction pursuant to Federal Rule
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of Civil Procedure 12(b)(1) on the basis that the Court of Federal Claims improperly
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transferred this case to this district and because Hymas’s claims are moot. As
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discussed below, because this Court lacks jurisdiction to review the Claims Court’s
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transfer order and because Hymas’s claims are not moot, the Government’s motion
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is denied. The Court construes Hymas’s Motions for Order to Include Class Action
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Status Per Rule 23 and Motion for Appointment of Counsel as a motion for leave

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to amend and motion to appoint of counsel. Hymas’s request for leave to amend is

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granted, but his request for appointment of counsel is denied. Because the Court

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finds that oral argument is unnecessary to aid the Court’s decision in these matters,

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Hymas’s motion for argument is denied.

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BACKGROUND

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Hymas initially filed this case in the United States Court of Federal Claims

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(the Claims Court). ECF No. 60-2. He challenges cooperative agreements (CFAs)

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entered into between the United States Fish and Wildlife Service (FWS) and

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farmers, which permit the farmers to farm certain lands within federal wildlife

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refuges. ECF No. 60-34. In short, Hymas alleges that certain FWS policies and

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practices regarding cooperative farming and CFAs are arbitrary and capricious,

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violate the Competition in Contracting Act and the Federal Grant and Cooperative

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Agreement Act, and that he was denied a fair opportunity to compete to farm on

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lands within the McNary and Umatilla Wildlife Refuges in Washington and

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Oregon. ECF No. 60-34.

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The Claims Court directed FWS to terminate the CFAs that had not expired,

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and enjoined the agency from using CFAs on the McNary and Umatilla refuges in

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the future. Hymas v. United States, 117 Fed. Cl. 466, 508 (2014). The Federal

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Circuit reversed, concluding that the Claims Court lacked jurisdiction to review

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FWS’s decision to enter into the CFAs because the CFAs were not procurements.

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Hymas v. United States, 810 F.3d 1312, 1329–30 (Fed. Cir. 2016). The court

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remanded to the Claims Court “for disposition consistent with this opinion,

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including the dissolution of the permanent injunction and the dismissal of Mr.

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Hymas’s action.” Id. Rather than simply dismissing the case, the Court of Claims

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transferred the case to this court. ECF No. 1.
DISCUSSION

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I.

This Court lacks authority to review the Claims Court’s decision to
transfer this case.

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Where a court lacks jurisdiction, that court may, “in the interest of justice,
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transfer such action . . . to any other such court in which the action or appeal could
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have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631. The Claims
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Court reasoned that pursuant to section 1631, transfer was consistent with the
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Federal Circuit’s remand “for disposition consistent with the [mandate].” ECF No.
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1. The Government argues that the Claims Court’s transfer is contrary to the clear
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mandate of the Federal Circuit, which expressly required dismissal. ECF No. 73 at
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3.
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This Court lacks appellate jurisdiction to review the Claims Court’s decision.
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See 28 U.S.C.§ 1295(a)(3)(“The United States Court of Appeals for the Federal
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Circuit shall have exclusive jurisdiction . . . of an appeal from a final decision of the
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United States Court of Federal Claims); 28 U.S.C. §§ 1330–69 (defining
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jurisdiction of district courts). As demonstrated by the cases cited by the

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Government in support of its argument, to the extent the Claims Court’s transfer

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order was reviewable, the appropriate court in which to appeal the decision is the

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Federal Circuit. See 28 U.S.C. § 1295(a)(3); Subsalve USA Corp. v. Watson Mfg.,

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Inc., 462 F.3d 41, 42–44 (1st Cir. 2006) (directly reviewing district court’s decision

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to “dismiss and transfer” case, but holding that section 1631 transfer orders are not

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immediately appealable); Hollyanne Corp. v. TFT, Inc., 199 F.3d 1304, 1306–07

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(Fed. Cir. 1999) (reviewing Claims Court’s decision to transfer venue to the District

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Court for the Northern District of California); Stamper v. Baskerville, 724 F.2d

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1106, 1107 (9th Cir. 1984) (directly reviewing district court’s decision for

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compliance with appellate court’s mandate).

Accordingly, this Court cannot

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dismiss Hymas’s complaint on the basis that the Court of Claims’ transfer was

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improper.

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II.

Hymas’s claims are not moot.

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“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’

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for purposes of Article III—‘when the issues presented are no longer live or the

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parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike,

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Inc., 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481

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(1982)). “If there is no longer a possibility that an appellant can obtain relief for his

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claim, that claim is moot and must be dismissed for lack of jurisdiction.” Ruvalcaba

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v. City of L.A., 167 F.3d 514, 521 (9th Cir. 1999). However, exceptions exist where

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a defendant voluntarily ceases a challenged practice or where the defendant’s

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alleged unlawful conduct is “capable of repetition, yet evading review.” Friends of

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the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189–91 (2000).

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“A defendant claiming that its voluntary compliance moots a case bears the

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formidable burden of showing that it is absolutely clear the allegedly wrongful

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behavior could not reasonably be expected to recur.” Id. at 190. The “capable of

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repetition, yet evading review” exception applies “where ‘(1) the duration of the

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challenged action is too short to allow full litigation before it ceases, and (2) there

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is a reasonable expectation that the plaintiffs will be subjected to it again.”

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Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173 (9th Cir. 2002).

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The Government argues that Hymas’s claims are moot because the ten

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challenged CFA’s in this case have either expired or were terminated. ECF No. 73

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at 4. Despite the fact that the CFA’s have expired or terminated, a live controversy

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exists and Hymas’s claims are not moot. In addition to injunctive and declaratory

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relief, Hymas seeks damages in the amount of his bid preparation costs. The Court

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can grant that relief even if the challenged CFAs have expired or were terminated.

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Further, both mootness exceptions apply in this case. First, the agency

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terminated six of the CFAs based on the Claims Court’s July 25, 2014, permanent

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injunction, ECF No. 73-1 at 2, which was reversed by the Federal Circuit, Hymas,

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810 F.3d at 1330. Five of the six CFAs would remain effective today if they had

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not been terminated, and because the agency could have reinstated the CFAs

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following the Federal Circuit’s reversal, this is effectively a voluntary cessation of

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alleged unlawful conduct. The Government has not demonstrated that it is

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absolutely clear the allegedly wrongful behavior could not reasonably be expected

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to recur. Indeed, the Government acknowledges that similar CFAs remain in place

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on another nearby refuge. ECF No. 73 at 4 n.2. Second, the “capable of repetition,

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yet evading review” applies because the duration of some of the challenged CFAs—

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one year—is too short to allow full litigation, and, because similar CFAs continue

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to be in place elsewhere, it is reasonable to expect that the agency will continue to

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use these agreements.
Accordingly, Hymas’s claims are not moot.

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III.

Hymas may amend his complaint to allege additional or class action
claims.

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Hymas’s “Motion for Order to Include Class Action Status Per Rule 23” is
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best construed as a motion for leave to amend the complaint. ECF No. 75. Generally
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leave to amend should be freely given and denied only when the proposed
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amendment either lacks merit or would be futile. Fed. R. Civ. P. 15(a)(2);
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Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1144 (9th Cir. 2015).
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Hymas argues in his motion that FWS “cooperative farming” policies and practices
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in numerous wildlife refuges violate the Refuge Revenue Sharing Act. ECF No. 75
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at 3–5. It is not clear that an amendment to the complaint to add these claims lacks

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merit or would be futile. Hymas’s motion for leave to amend his complaint is

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granted.

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IV.

Hymas’s request for appointment of counsel

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Hymas also requests that this Court appoint counsel or issue an order

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permitting his former counsel, James P. Shaefer, to represent him in this Court. ECF

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No. 75 at 7.

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Hymas’s motion for appointment of counsel appears to be made pursuant to

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Rule 23(g). But appointment of class counsel is permitted only after class

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certification. At this time, there are no class action claims in this case and there has

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not been class certification. Hymas articulates no other basis to support a request

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for counsel. Accordingly, this request is denied.

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With respect to Hymas’s former counsel, Mr. Shaefer may represent Hymas

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by complying with the Court’s pro hac vice admission process pursuant to Local

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Rule 83.2(c). Hymas and Shaefer have been informed of the Court’s admission

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requirements and the process for pro hac vice admission. The process is not

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onerous. Hymas’s request to permit Shaefer to represent him in this court without

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regard to these rules is denied.

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V.

Motion for argument

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Hymas has moved to have oral argument on the motions filed in this case.

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ECF No. 77. Because the Court finds that oral argument is not necessary to aid the

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court’s decision in these matters, the motion is denied.

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Accordingly, IT IS HEREBY ORDERED:

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1.

Defendant’s Motion to Dismiss, ECF No. 73, is DENIED.

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2.

Plaintiff’s Motion for Order to Include Class Action Status Per Rule

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23 and Motion for Appointment of Counsel, ECF No. 75, is

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GRANTED IN PART and DENIED IN PART as follows:
A.

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Plaintiff’s request for leave to amend his complaint is
GRANTED;

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B.

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Plaintiff shall file any amended complaint on or before
Wednesday, December 14, 2016.

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C.

Plaintiff’s request for appointment of Counsel is DENIED.

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D.

Plaintiff’s request to permit his former counsel, James P.

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Shaefer, to represent him in this court without complying with

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the court’s rules for admission is DENIED.

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3.

Plaintiff’s Motion for Oral Argument, ECF No. 77, is DENIED.

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4.

Argument scheduled for Thursday, December 1, at 1:30 p.m. in
Richland, Washington, is STRICKEN.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
provide copies to all counsel.
DATED this 30th day of November 2016.

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SALVADOR MENDOZA, JR.
United States District Judge

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