LYCURGAN, INC., DBA Ares Armor, a California corporation v. Todd Jones, in his official official capacity as Director of the Bureau of Alcohol,…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYCURGAN, INC., DBA Ares Armor, a
California corporation,
Plaintiff-Appellant,
v.
TODD JONES, in his official official
capacity as Director of the Bureau of
Alcohol, Tobacco, and Firearms
Enforcement,
Defendant-Appellee.
No. 16-55341
D.C. No.
3:14-cv-01679-JLS-BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted April 6, 2017
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN, District
Judge. **
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In this action, Plaintiff-Appellant Lycurgan, Inc. (Lycurgan) seeks injunctive
relief ordering Defendant-Appellee Todd Jones—the director of the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF)—to return eighteen “EP80
lower receivers” that allegedly went missing after the government seized
Lycurgan’s property during the execution of a criminal search warrant. The
district court dismissed Lycurgan’s complaint for lack of subject matter
jurisdiction. We review that decision de novo. Hicks v. Small, 69 F.3d 967, 969
(9th Cir. 1995). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lycurgan’s complaint for injunctive relief is moot. “A case becomes
moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article
III—‘when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 133 S. Ct. 721,
726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).
“The basic question in determining mootness is whether there is a present
controversy as to which effective relief can be granted.” Feldman v. Bomar, 518
F.3d 637, 642 (9th Cir. 2008) (quotation marks omitted).
Here, Lycurgan seeks an order “command[ing] Defendant to release the 18
unreturned [EP80 lower receivers] forthwith and without delay.” However, the
ATF is not asserting any legal right to retain Lycurgan’s property, and Lycurgan
concedes that the “missing” lower receivers are not in the government’s

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possession. See Blue Br. 42 (“[T]he ATF allowed the loss or the theft of 18 of
Lycurgan’s [EP80 lower receivers].”); Grey Br. 13 (“Lycurgan has suffered a
deprivation of its property, and that property is somewhere. The 18 EP80 receivers
have either been stolen, destroyed, or transferred . . . .”). Given that the only live
issue concerns whether a counting error occurred (as ATF believes) or whether the
missing EP80s were lost or stolen (as Lycurgan believes), the case is moot. This
court is not capable of granting any effective relief because Lycurgan seeks an
injunction ordering the return of property that it recognizes the government does
not possess. See Already, 133 S. Ct. at 727 (“No matter how vehemently the
parties continue to dispute the lawfulness of the conduct that precipitated the
lawsuit, the case is moot if the dispute is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.” (internal quotation marks
omitted)).
Lycurgan’s argument that mootness is intertwined with the merits of this
action is not correct. “[J]urisdiction and the merits of an action are intertwined
where a statute provides the basis for both the subject matter jurisdiction of the
federal court and the plaintiff’s substantive claim for relief.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal quotation marks omitted).
In Safe Air, for instance, “the Growers challenged Safe Air’s contention that grass
residue constitutes solid waste under [the Resource Conservation and Recovery

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Act].” Id. The issues were intertwined because, if grass residue counted as solid
waste, then not only did the court have subject matter jurisdiction to hear Safe
Air’s substantive claim, but the Growers were liable under the statute. Id. at 1037‒
41. Here, the issues are not comparably intertwined. The jurisdictional question of
whether the court is capable of granting the relief Lycurgan requests does not
depend on resolving the only factual question genuinely in dispute—whether the
missing receivers were lost or are missing only because there was a miscount. As
a consequence, Lycurgan’s request for injunctive relief has been rendered moot.1
AFFIRMED.
1 Given these circumstances, we decline to reach the remainder of Lycurgan’s
arguments. In addition, Lycurgan’s motion to file a late brief is granted, Dkt. No.
36, and its motion to extend the time to file its reply is denied as moot, Dkt. No.
31. Lycurgan’s two motions for judicial notice are denied. See Dkt. Nos. 15, 37.

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