fourteen thirty nine eighty seven games versus united states department of agriculture health inspector oral argument not to exceed fifteen minutes per this column for the petition that morning your honour's i have reserved two minutes this case on the surface is a very simple issue of legal interpretation and we have a house to come here today in part because we believe it goes far beyond that it is a very important pivotal case that demonstrates the failure of the due process system within the department of agriculture but the context in which this court considers that is the issue of different the facts are not in dispute the a l j dismissed the complaint against james wouldn't work if the judicial officer made findings of fact which we have absolutely no disagreement with whatsoever it is simply the judicial officers disagreement with the a l j is interpretation of a regulation within the u s d a that is at issue here and because the  because the u s d a had a notice and comment period for their regulation which was very specific as to the intent and the background that is what is entitle to deference here the question for this court is whether the judicial officers personal interpretation is entitle to any difference at all whether it is pretty amazing when you read these  agency responses with all the respect that they simply don't cooperate what you say they say or at least the import of that you attach to that they don't say th now so creates an exception to a overrides a you can go back to the language if you want to but i understand that's what you think they meant but it isn't what they said well i think that that  and again with with all due respect if you go back to the history what preceded d day replaced something d replaced two point one three two b and the former language  was were to you even drive the conclusion that it actually replaced something as opposed to being added because it's it's hard to find any basis for that assertion i know that's what you think happened but where do you what's the basis of that i'm looking at the former version which is when you go to the federal record you look at the former version of two point one three two and then the change in two thousand and four and that's where d was added and the all be was removed be previous some indication the b was removed because it wasn't necessary because of the definition and one point one what was in the rule before was that it be dealer shall not obtain live random source animals dogs and cats from individuals which are not bred and raised the dogs and cats on their own premise in practice the case c c baird which we cite in our brief and opinion by this specific judicial officer said that that was a provision that was not in force that was from the testimony of the u s d a itself it went on at length to explain that throughout the system there were elements that were being sold by individuals that the that the agency was permitting this with the proviso that they would be limited to twenty five per year and that there would be records kept as to who the source of those animals were and whether they had bred and raised them that was what the u s d a traditional office or the same judicial officer held in the c c baird case it was after that that they changed the provision to recognize that this was their procedure that the dealers could accept in almost from individuals if they signed a certification that said that the animal had been born and raised by them i can see how that might be a plausible interpretation but if you could go with me through the plain meaning of these regulations would you agree that if they if a reasonable reader of the would disagree with you then that's kind of the end of the case i would not agree with that for we don't have to  so if the judicial officer read these on their face in a reasonable way it would still be wrong i mean is that contradictory to all we know about the reading of its o regulations not in this case i'd like to bell in any event let's go through it ok section a of two point one three two says you can only obtain random li source dogs and cats from one two or three right correct and this isn't one two or three right correct so that in effect means you can't obtain a live random source dogs given that you haven't gone through one two or three so it all depends on whether the saliva random source cat or dog right under the plain meaning of the regulation under the plain meaning of the regulation and read regulatory construction same is statutory construction you look at two  actually three three magic and one yes or no question here i'm sorry if you don't let's assume we're in a world where the particular individual we're talking about has not gone through one two or three i just assume that for the moment because that's the facts right in this case he has not gone through one two or three he didn't get it from another dealer it was licensed he didn't get it from a pound and he didn't get it from some whatever the third category there is right current und it's not and he's a class b dealer which is what a applies to yes right so he's he's he can only a pain alive random source dog or cat from one of these three and it's not one of these three which means he can't obtain a live round of source dog or cat if you accept those sumption if you read in isolation and that's where i think i'm reading it in isolation he can't do it so that then we go next to the definition of what's a live random source dog or cat in order to see whether he's violated this thing which says he can't get a live random source starve or a cat unless he's done one two or three and he hadn't done one two or three with me so far absolutely everything just so the one section one point once random source dog or cat means a dog or cat pain from  that who did not breed or raise them on his or her premises so if you read that this is a live random source dog or cat because we know from the facts of the case that they were not bred or raised on the premises of the person from whom we obtained the cat or dog is that correct that's correct so if you just look at those two things there's a violation then we see this which says in the second sentence of two one point three two d which i gather is what you're relying on it says no dealer exhibitor shall knowingly obtain any dog or cat from any person who is not licensed other than a pound or shelter without obtaining a certification that the animals were born and raised on the person's premises so you could read that as changing what otherwise was the pretty clear meaning of the two provisions that we just went through or you could read it as creating a paper trail in order to investigate and make sure that those first two provisions were complied with  i think the latter reason the latter reading is probably stronger but even if they're of equal strength it's if you can't say that the second reading is just no no can you what i can reading makes sense you could sent you could have a scheme where you can't do this and in order to make sure you're not doing it you have to get a certificate to get the certificate but it turns out the certificate is false and so you've still done it that's the way that the judicial officer reason it looks tough arguably it's misleading to the layman a little bit that they might think if they got the certificate they're covered but the literal meaning of it doesn't probably reluctantly at the end of the day say this was a random source dog or cat and therefore you lose because it has two requirements one is that you don't do it and one is that you get a certificate but you haven't done it you got the certificate but he did it so i later i mean that seems to be the literal meaning of it in all statutory and regulatory interpretations there are rules that we apply one of them is that if one section is more specific than another that is the section appears to be more specific they're inconsistent though right here's your problem d is not limited to class a b dealers say anything about class b dealers in the entirety of two point one three to up lies to class b dealers but let me just just dad that it's not just the specific and the general it is the later created but you could have a you are precluded from doing x regulation and then you could have a later in order to make sure that you don't that you do x you have to take this precaution in a later regulation if it's not inconsistent then later in time can apply but the first one is still there that's the trouble i'm having i'm sympathetic with the argument it looks a little abusive to me to be candid but i'm having trouble getting around the language which just doesn't seem to support it and while you're answering that i want you to think about i'm looking at two point one three two there's not a introductory paragraph that says that they're talking in all of the subsections about class b dealers a it says it's on about class b dealers b it's talking about no person c it's talking about dealers exhibitors research facilities so on d talking about no dealer or exhibitor you know they use class b dealer when they want to and they don't use it and they don't want to so when you're looking at this i understand how you want this to come out but d d is not thousand and four says no dealer in remember there is a and b dealers but b dealers are the only ones that this could possibly apply to because they are breeders so this is talking about b dealers no big deal or no dealer shall knowingly obtain a dog or cat from a person it's really hard to understand how you derive the fact the d creates an exception from a when it doesn't say that it doesn't mention that it doesn't allude to that and the history doesn't your view that the point of d d was to create an exception from what the from the language it seems pretty clear is to discuss with you is clear on the face of a well this is our argument the the point is that before two thousand and four this particular regulation said you shall not thou shalt not class b dealers and exhibitors shall not obtain a dog or cat from any person unless they praise the animal themselves the change the war which which i think it's clear that the worst the civic change is not thou shalt not anymore the new regulation says  but you have to read it carefully to see how it says so i mean i'm sympathetic with you it looks a little bit like they tried to clean it up but they cleaned it up in a way that was kind of misleading well let's look at it but we're lawyers and we're in and that's why you have jails there to interpret them for us and it's not like the they harm the person too much they're just saying this is how reads and this is how it reads as you can't do it and you have a check and you  know i'm not going to talk about it i think a layperson could kind of read this in kind of a fuzzy way and get to the with due respect and come to the conclusion it's really hard to do it if you're just if you went to your lawyer and said can i do this well here's the thing let's look at a case from two days ago from the eleventh circuit where they looked at this exact thing and it's all about deference deference to the g a o and they said if it's a regulation that's one kind of deference but an interpretation of the g a o is only entitle to deference if it's persuasive that's allowed eleven circuits persuasive and say the g a o l roles based on what's in front of him he had the only evidence in front of the was the party admission of the primary investigator for u s d a thomas rippy and that admission was he told mr beck case or this case i'm talking about this case in this case i thought you said the facts were also that we know what the facts are we're just interpreting what this regulation says well the facts in terms of how the investigators interpreted this are certainly not something that the g a o relied on the g a o through all of that out he did not consider they but with the facts are that they were raised on the premises but they said that they were the other way around and those facts are clear here right or not of not disputed correct but the interpretation of the agency comments from the testimony of the agency's investigators and that's really provable pivotal here judge mckee you said we're lawyer i think you're out of time just this one one why is it not correct to say that under d certainly an exhibitor can rely upon d and simply get the certificate but doesn't say that a class b dealer can rely upon it because a class b dealer is so i understand it might be might not have been clear to your client but that seems what the words say so what if you just think about that because the language seems to be clear the canons don't seem to help you and the history doesn't seem to say what you says what you say it says other than that you're you're doing great so think about that in you come back and tell us why that's wrong thank you appreciate your  you went through my argument the regulation a which is what are you charged with violating his this is clear there's no signed her requirement indie doesn't create an exception to that you know when you read this and these regulations closely and maybe correctly and says well you really didn't intend to do anything wrong so i'm not going to punish you but but don't do it again what now has happened is if he does this again under the same facts unknowingly he does everything reasonably gets the certificate and everything else but if he makes a mistake because somebody lies to him now he is not only violated the regulation but he's done it a second time and it just looks like he's being set up for you to take away his license and there's a lot of stuff going on here in the background that for i think i was reasons you don't even discuss them at all in your brief made for whatever strategical reason but why testified that he's taken steps he's now going to ask people when they come in where did you get the dog and let's see they lied to him right and secondly he's changed the language of his is formed to make it clear but yes he could be lied to could happen again if i gets liability statute in if he does keep taking dogs from people from people that show up giving him vital and if they're lying to him no matter what the form says no matter what questions he asks he's a repeat offender and you're going to take away his license  o i don't think that so i mean in this case the judicial officer considered the fact that his violations were unintentional there was an out what i mean that's the fairness probably is you know that's underlying this that creates the concern i think if the judicial officer at the sanction phase if it did happen again first of all the agency has discretion not to bring an action against him now that they have this decision they understand what the lay of the land is maybe they decide not to do it but assuming they do again i acoustic this decision would embolden them to go be to go look behind these certificates with this guy i don't know that that's necessarily true that i would agree with that i mean they are they do that anyways with all far as the sanction is revocation and the judicial officer said absolutely not it's not warranted here he didn't knowingly violate the regulation and what i think would happen in a second one if they got another one cylinder same position i believe so you get the drift about maybe a conversation you had to have with your client yes your honor i do hopefully i think it would probably come out the same way i you know i can't say for sure but in this one at least the judicial officer didn't take his license he didn't do anything to his license and he didn't assess a civil penalty and the judicial officer has the discretion basically what you want here is a judicial imprimatur on the idea that it's strict liability in the sense that you can't rely on these certificates that's right there's no science or required all rely on it but they take reasonable steps and then presumably the judicial officers will take into account that you've made attempts that's right here by way that nikolay if they get a whiff that you haven't you could still have adverse consequences whatever's provided by the what is the worst thing that can happen to you for violating this the worse thing is your license would be revoked it's no criminal penalties or anything like the most that the agency can do is take away your license that's true or if they're on a rampage to take away his license they've got a tool to do it with now and he's got to be super careful right and that's what he said but i think the outcome in this case shows that although they paint the judicial officer to be someone who's out to get people's license that's not what he did ok thank you for the thank you i need to make sure that the court understands that there was tremendous harm done here mr borden burgas on a business as are virtually every single b dealer with the exception of one in the united states even if the court takes they the secretary will pleadings you say that there were a whole lot of these dealers and by the time this occasion this incident occurred because the underlying animists of the agency these dealers would be had been whittled down to i think you said eight also a finding in the hodgins case that there appeared to be great bias on the part of the on the part of the agency against these b dealers and they need to scrutinize that the critical thing is what this court ruled in the face of that was we don't we don't look at the motivation but we do look at the credibility that that motivation indicates and that's exactly what you've got here what i want to say quickly is i think i don't even understand what you just said we look at the credibility of what the motivation indicates credibility of who about what we're trying to figure out what regulations mean that's correct your honor what i was quoting for in terms of credibility was last page in the hodgins decision from this court where the court opined that the inconsistency is and the lack of credibility of the agency  to go after b dealers created a suspicion about the credibility of their interpretations and that's the critical point i would like to make here is that i don't so the words say what they what they say but we should interpret it a different way because they're bad people no i'm sorry what i believe i believe it was just rogers said you could read it either way so how can we second guess the judicial officer this is how this was a trial and the investigators for the u s d a testified through a party admissions that the way the agency read this was that mr wooden berg was not in violation that was their primary investigator and they hid him so the only evidence and by him i mean the judge issued a subpoena said you've got to bring him here and they would not and the u s would not reveal where he was so the only no i don't think there's anything that i don't think there's any indication there that was their interpretation before them before the judicial officer ruled  figure out what they apply these regulations they they read them and say this is what we think they mean i'm having trouble seeing how credibility bias and all the facts what about the and what about us they change i can see you can say well if they generally applied it in a certain way and now they're changing you could make some kind of argument i'm not even sure that would work surely you're not making that argument shouldn't the dealer have had an opportunity to show interpretation b i thought it was a minute ago you were in arguing that they change their target the witnesses that were there mr repeat through party admissions and mr dawson had an investigative report let's us let's assume that let's assume that this investigator thought the regular the statutes met mean exactly what you're arguing there is he a lawyer he's not a lawyer but he's under the directive of the department in here the interpretation is something that the department my if my point is agency interpretations i would think are not formed by what i would assume we would properly characterize this investigator as a lower level employee of the agency they probably get of this ruling went through rulemaking procedures they told you what it meant you you read it one way and the government reads it another way i just i'm having trouble figuring out even if this investigator would say exactly what you said hey this is what i think it means and this is what all my buddies in the field think it means asking whether they raise the animal that's how the agency read it and that was the testimony the g a o speaks for th is the final decider but he decides on a record and in this case assigning a regulatory interpretation which you say should be just decided the way the same way a statue should be decided it's really matter too much what's in the record those that appear just trying to figure out what it means i think in terms of due process if the people of the field are interpreted in applying it in a certain way that certainly