IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50065
(Summary Calendar)
TOMMY HAYRE AND LELEE HAYRE,
Plaintiffs-Appellees,
versus
DAN GLICKMAN, Secretary, United States
Department of Agriculture,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(P-94-CA-25)
November 2, 1995
Before GARWOOD, WIENER, and PARKER, Circuit Judges:
PER CURIAM*:
Plaintiffs-Appellants Tommy and LeLee Hayre sought a
preliminary injunction to enjoin implementation of the Department
of Agriculture's (Department's) April 1994 decision to withhold the
Hayres' 1993 price support payment (April Withholding) under the
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
National Wool and Mohair Act of 19541 (Act), pending further
investigation. The district court held, inter alia, that the April
Withholding was not a "final agency action" under the
Administrative Procedure Act2 (APA) and dismissed the action for
lack of jurisdiction. In this appeal we address whether the April
Withholding was a "final agency action." We conclude that it was
not, affirm the district court's judgment, and dismiss this appeal
for lack of jurisdiction.
I
FACTS AND PROCEEDINGS
A. STATUTORY BACKDROP
The Act established the wool and mohair price support program
(Program). The Program is administered by the Department through
two of its components, the Commodity Credit Corporation (CCC) and
the Agricultural Stabilization and Conservation Service (ASCS).3
Under the Program, wool and mohair ranchers receive incentive
payments for any years in which average producer prices for wool
and mohair are lower than support prices determined by the
Secretary of Agriculture.4
There are several significant limitations on eligibility and
payment under the Program. First, as of 1991, no "person" may
receive more than a specified dollar amount in wool or mohair
1
7 U.S.C. § 1782 et seq. (West 1982 & Supp. 1995).
2
5 U.S.C. § 704 (West 1970 & Supp. 1995).
3
See 7 C.F.R. § 1468.2(a).
4
7 U.S.C. § 1782.
2
payments in a given year.5 Second, to qualify as a "person"
eligible to receive support payments, a rancher must be "actively
engaged in farming."6 Any person who adopts or participates in a
scheme or device that is intended to evade, or has the effect of
evading, these limitations in any year forfeits eligibility for
that year's payments as well as the following year's.7
B. FACTUAL BACKGROUND
Tommy and LeLee Hayre are wool and mohair ranchers in Texas.
Prior to 1991, they had received substantial wool and mohair
subsidy payments.8 In 1991, Congress established statutory limits
on the amount of payment a "person" could receive. Tommy Hayre's
parents, Jack and Dixie Hayre,9 received wool and mohair payments
5
See 7 U.S.C. § 1783(b)(1). This section sets the relevant
limits as follows:
(A) $200,000 for the 1991 marketing year;
(B) $175,000 for the 1992 marketing year;
(C) $150,000 for the 1993 marketing year. . . .
Id.
6
See 7 C.F.R. § 1497.201 et seq.
7
See 7 U.S.C. § 1308-2; 7 C.F.R. § 1497.6.
8
We are unable to determine whether Tommy and LeLee Hayre
jointly received a single support payment in all the relevant years
or whether only Tommy received a payment prior to 1991 and then in
1991 LeLee began receiving an independent payment. The parties'
briefs indiscriminately attribute actions to Tommy alone, receipt
of payments by Tommy alone, and receipt of payments by Tommy and
LeLee jointly. This ambiguity does not affect our decision;
however, so we shall assume that the actions taken and payments
received by Tommy and LeLee Hayre were joint and thus attributable
to both husband and wife.
9
Similarly, we assume that the actions taken and payments
received by Jack and Dixie Hayre were joint.
3
for the first time in 1991. Tommy and LeLee Hayre continued to
receive support payments in 1991, as they had in prior years.
On April 8, 1994, the Department's Office of the Inspector
General (IG), an independent entity charged with conducting
investigations and detecting program related fraud,10 sent the Texas
ASCS (TASCS) a memorandum (Memorandum) advising the TASCS of an
ongoing review by the IG of the 1991 and 1992 wool and mohair
payments received by members of the Hayre family.
The Memorandum stated that, until 1990, "Tommy Hayre [and, we
assume, LeLee]" were the only members of the Hayre family who
participated in the wool and mohair subsidy programs, and that they
had been receiving large payments from the government prior to the
years in question. The Memorandum noted further that in 1991 (when
the per person payment limits went into effect), Jack and Dixie
Hayre--respectively, a semi-retired and legally blind attorney and
a retired teacher, both of whom were in their seventies--began
participating in the Program for the first time.
The Memorandum went on to explain that, based on its
investigation, the IG's office had concluded that in 1991 the elder
Hayres, Jack and Dixie, were not, as the statute required,
"actively engaged in farming." Thus, they had received $323,752 in
improper subsidies for that year. Furthermore, stated the
Memorandum, "indications are that a scheme or device was adopted"
by the Hayre family "to evade the payment limitation[s]." If these
allegations proved to be true, the two Hayre couples would be
10
See 7 C.F.R. § 2610.1.
4
jointly and severally liable to repay a total of $867,999 for the
improper 1991 and 1992 payments they had received. The IG's office
stated that to complete its review, it needed more documents from
the Hayres, but that those papers had not been provided despite
repeated requests.
On April 12, 1994, the TASCS concluded that "substantial
evidence [exists] that the Hayres had adopted a scheme or device to
evade statutory payment limitations." Consequently, that office
(1) withheld Tommy and LeLee Hayre's 1993 payments pending further
investigation and (2) requested that the Tommy and LeLee Hayre
provide, within thirty days, the documents necessary to complete
the review of the Hayre family operations. In response, Tommy and
LeLee Hayre requested and received a thirty-day extension of time
within which to submit the necessary information.
On June 29, 1994, Tommy and LeLee Hayre filed a petition in
federal district court seeking a preliminary injunction ordering
the release of the withheld 1993 subsidy payments.11 The Hayres
alleged that the April Withholding violated both the Due Process
Clause and the APA.
Then, on July 18, 1994, before a hearing was held in or a
decision rendered on the injunction petition by the district court,
the TASCS determined (July Determination) that the Hayres had been
overpaid in 1991 and 1992, and thus their 1993 payment was subject
to offset. The TASCS concluded, inter alia, that (1) Jack and
11
Jack and Dixie Hayre were not parties below and thus are not
parties to this appeal.
5
Dixie Hayre had not been "actively engaged in farming" in 1991; (2)
Tommy, LeLee, Jack, and Dixie had failed to operate as separate
persons during 1991; and (3) all four Hayres had adopted or
participated in a scheme or device designed to evade, or that had
the effect of evading, the payment limitation and eligibility rules
in 1991. On July 29, 1994, the Hayres sought reconsideration of
the July Determination.12
On December 19, 1994, the district court ruled that the April
Withholding was a preliminary, procedural, or intermediate agency
action, and thus not a "final agency action" under the APA.
Accordingly, the court concluded that it lacked subject matter
jurisdiction and dismissed the Hayres' claims. The Hayres timely
appealed.
II
ANALYSIS
A. STANDARD OF REVIEW
A district court's determination that it lacks subject matter
jurisdiction is reviewed de novo.13
B. FINAL AGENCY ACTION
The APA only authorizes review of a "final agency action for
which there is no other remedy in a court."14 A final agency action
is one that imposes an obligation, denies a right, or fixes a legal
12
According to the parties' briefs, no hearing has been held.
13
Henderson v. United States, 35 F.3d 222, 225 (5th Cir.
1994).
14
5 U.S.C. § 704.
6
relationship.15 Absent such final agency action, a court lacks
subject matter jurisdiction.16 Moreover, we are reluctant to
interfere with administrative rulings until administrative agencies
have finished their work.17
The Hayres argue that the April Withholding was a final agency
decision because it (1) denied them present use of the subsidy
payments, and (2) gave the government an unfair litigation
advantage. This argument is frivolous. First, the April
Withholding did not fix a legal relationship: the subsidy payments
were temporarily withheld, pending further investigation.18 Second,
the harms complained of by the Hayres are not generally the types
of obligations or denials of rights contemplated by the statute.
An obligation to defend oneself before an agency is not an
"obligation" which constitutes a final agency action.19 As we agree
with the district court that the April Withholding did not
15
Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (citing
United States Dep't of Justice v. Fed. Labor Relations Authority,
727 F.2d 481, 493 (5th Cir. 1984)).
16
Veldhoen, 35 F.3d at 225; Taylor-Callahan-Coleman Counties
Dist. Adult Probation Dep't v. Dole, 948 F.2d 953, 956 (5th Cir.
1991).
17
U.S. Dep't of Justice v. Federal Labor Relations Authority,
727 F.2d at 493.
18
See Veldhoen, 35 F.3d at 225 ("An agency's initiation of an
investigation does not constitute final agency action. Normally,
the plaintiff must await resolution of the agency's inquiry and
challenge the final agency decision.").
19
See F.T.C. v. Standard Oil of California, 449 U.S. 233, 242
(1980) (holding that obligations inherent in litigation are
"different in kind and legal effect from the burdens attending what
heretofore has been considered a final agency action); see also Dow
Chemical v. U.S. E.P.A., 832 F.2d 319, 325 (5th Cir. 1987).
7
constitute a final agency action, we affirm that court's dismissal
of the Hayres' complaint for lack of jurisdiction.
B. MOOTNESS
If a dispute has been resolved or if it has evanesced because
of changed circumstances, it is moot.20 After the Hayres challenged
the April Withholding and before the district court could address
the merits of that challenge, the circumstances changed: The July
Determination superseded and replaced the April Withholding. As a
result, the April Withholding evaporated, rendering the Hayres'
complaint moot. Accordingly, we hold in the alternative that
subsequent actions by TASCS rendered the Hayres' complaint, and
thus this appeal, moot.21
III
CONCLUSION
Because (1) the April Withholding was not a final agency
action and (2) it was superseded by the July Determination, the
district court never had jurisdiction to hear the Hayres'
complaint. It follows, then, that we do not have appellate
jurisdiction. For these two alternative reasons, this appeal is
DISMISSED.
20
American Medical Association v. Bowen, 857 F.2d 267, 270
(5th Cir. 1987).
21
This is a narrow holding and neither res judicata nor law
of the case would prevent the Hayres from challenging the July
Determination in a separate cause of action. We neither express
nor imply an opinion on the merits of any future suit challenging
the July Determination.
8