the court josh handle from the u s department of agriculture with the court's permission i'd like to reserve four minutes for a bottle not a problem at all go right ahead thank you judge ampara last march as broad segments of the national economy were shutting down at the outset of  congress enacted section two thousand three hundred and two dollars of the family's st act to provide quote additional snap flexibility in a public health emergency and to quote we're very familiar with the facts here so let me ask you to just so we lay the groundwork if you have a household and let's say the maximum monthly allotment would be one hundred if not household was except that the secretary also reevaluated the cost of the thrifty food plan in june to increase it by about five percent so i was told that at the beginning of the pandemic was getting one hundred we'll get one hundred and five dollars after that and then  percent plus fifteen percent ok that was in effect there was a digression question because i'm just running a by my own head you know what i seem to think making this simple so i can for myself that europe the plaintiffs are saying that there is a usual allotment which could be one of five or not one hundred and twenty one and that there is a emergency there separate and you're saying now now we've been telling you from from the get go there's only one it's one hundred and twenty one that's the max you can get that is correct judge ambrose we believe that because congress has not revisited the thrifty food plan which as you know except for the fifteen percent increase in the consolidated appropriations act passed last month congress had not revisited the thrifty food plan amount and because the thrifty food plan amount by statutory various disaster provisions that are relevant here so on the one hand yes congress did use the term emergency allotments in that provision as referring to a very kind of unique scenario with respect to something that can happen during natural disasters which is the spoliation of previously purchased food through probably most commonly the the loss of power leading to loss of  beyond the thrifty food plan in terms of its assessment of general household food needs even in emergency circumstances so under section two thousand and fourteen h three a household that already received the maximum monthly allotment and then receives this kind of one off pay out to to replace spoiled food ends up with a monetary value of food that is still less or equal to the statutory cap on snap benefits so it's kind of a a new each retrospective benefit that we would argue conveys no change in congress's assessment of food costs or availability of local food banks or any of the kind of you know broad food supply related difficulties that plaintiffs have asserted as informing the definition of temporary food needs under  of the temporary excuse me of the thrifty food plan as the amount that is necessary to feed a family of four with adjustments for household size for a one month and then households snap allotment that was spoiled you know from the loss of refrigeration during a disaster but it does not encompass any of the sorts of additional factors the plaintiffs have posited here anything other than income and household members in the household put differently are they ever considering setting someone's eligibility for benefits the kinds of things the places have brought to our tension like the cost so there are as you said just two inputs to the benefit entitlement formula is household size and household income and there is one output which is the whatever benefit it takes to bring about household up to affording the thrifty food plan calibrated for its household size last thirty percent of net household income so things like you know the availability of a local food bank or something like that that is entirely unrelated to the definition of the thrifty food plan is not something that u s d a ever takes into account when it determines th are two very strong reasons not to embrace plaintiff's reading of this as kind of the stand alone benefit that that they envision the st is what we were just kind of discussing which is that this  plaintiff's reading would introduce this kind of real world hyper localized differentiation and benefit entitlement based on factors like food prices cost of living the availability of food banks etc that would be directly contrary to a bedrock principle of the snap program as congress defined which is nationwide uniformity of benefit and title and as it stands today under congress's design for better or for worse a household in manhattan kansas receives the same snap benefits as a household of the same size an income in manhattan new york notwithstanding what we understand are pronounced real world differences in food prices and various charitable resources availability etc between those localities so i think if congress were going to do an about face on that point if they were going to consider for the st time localized variations in food prices and there for the st time error in the district court's decision i think it it also just you know just record and courts in general have a duty that's been recognized by this court in the supreme court to situate statutory provisions within  the broader statutory and regulatory scheme right and i think that treating this this emergency allotment these temporary food needs as completely on tother to from the thrifty food plan which is in many ways the provided at least to the staffers on the district which seems to suggest that the appropriations you cause me to ask that is you said you've got to look how we're situated and one could argue since the appropriation bill was like ten days later it was situated at least with some informativeness from the appropriation but the district court said there's no evidence congress even knew about yesterday what do we do with that you want to consider the appropriation should we not consider the appropriation what you think well you know sure i would love you to consider the appropriation because i think the appropriation is at a level commensurate with us years understanding of the program and wildly inadequate to cover like that you can just look at the statutory language and i think plaintiff's a good knowledge that what congress was doing under their reading was creating a centrally a clone snap program right congress was creating  think you know our position is if congress were going to essentially double snaps financial exposure by creating this new standalone benefic that can singularly be up to the  amount as the maximum monthly allotment under regular snap benefits it would have spoken clearly and it would have appropriated an amount consistent with that outcome and neither of those factors is met here and let me just ask you one of the same gu chevron deference my right not that you agree that's correct yes now the he does that attacks the look for him that goes to the states says explicitly this does not have the force of law so how can you tell of the the distinction here yes it absolutely i acknowledge you know you and i just walking along the street are not in any way bonded by this particular god statement by u s d a but when pennsylvania submitted a request for deference one to pick up and judge which is point the lack of legal effect of the ruling it's very clear on the cover pages here this has zero legal effect a lack of notic rule making there's none here the law whether there's caring crafting the guidance that was done very quickly within two days and they just kept following up on it and the subsequent pronouncements and the failure to explain how or why the agency reached the interpretation it looks like the interpretation there is is particularly conclusive so when you look at all those things why in the world would you consider chevron deference chevron deference as would be pleading with our chin to the supreme court well well judge amro i think so and i guess i have a couple points on that so certainly you are correct there are various kind of factors that higgins laid out that are not met here this was not promulgated through notice and comment rule making it is not binding on the general public there is still i would argue legal effect to this guidance because it deprives the applicant states of the go authorisation to take federal funds and distribute those to its citizens so i do i would argue that this guidance you know there are u s d a is interpretation that the language of section twenty three o two is ambiguous such that might apply if this guidance had been promulgated through a more formal process then at a minimum that same ambiguity should precluded plaintiffs from carrying what this court has described as its heavy as their heavy burden of justifying a mandatory injunction that would disturb the status quo and then as judge ambrose you mentioned skidmore deference certainly applies here and plaintiffs did not contest in their brief are arguments that u s d a is interpretation is entitled to substantial weight under the higgins sliding scale test and the factors that hagan's laid out specifically with respect to skidmore deference so even if you don't think th a is interpretation of the statute is controlling under chevron at the very least it's compelling under skidmore because it is a reasonable reading of the statutory language he was issued contemporaneously with an ac see i'm sorry judge krause i might have missed some of your question there right i think you're talking about the section of the consolidated appropriations act that provides the fifteen percent across the board increase is be your honor i think there's just there's very little textual or a legislative history evidence to suggest that that's what's going on here i mean i you know i think that even you let's take pennsylvania for instance pennsylvania has now benefited from the existence of the preliminary injunction for the last four months the state has submitted requests for an extra fifty category at least because of emergency allotments there may be other you know snap programs kind of floating out there that now would apply in this way that i'm not aware of but certainly it would not apply to any of the pennsylvania households that are currently benefiting from the preliminary injunction and so i think it's of you know limited to juneau instructive value in terms of kind of inferring what what congress was trying to communicate with respect to the scope understanding of what the u s d a understands to be a normal allotment for the regular snap program and compared it with similarities to the disaster related expenses that they previously have been things like that you know the primary purpose for which we submitted the affidavit was the equitable side of things with respect to the budgetary pressures that u s d a is facing and the possibility of  you know potentially having to reduce benefits in the event that we are enjoined to when you look at irreparable harm congress recently appropriated  certainly u s d a is in a better position now than it was under the continuing resolution which was essentially asking u s d a to support a bunch of new programs and new burdens d under the same sort of shoestring budget that had applied before the pandemic but even under the new increased appropriation maintaining pennsylvania's privileged position will deplete the funding that congress has appropriated for this program the funding that congress appropriated for necessary expenses to carry out the food and nutrition act has to cover not only regular snap allotments at the new five percent increase thrifty food plan amount but also the other increased costs that were discussed in the press release that we cited on page twenty dollars of our opening brief m p g of our reply and that includes the large increase in in rome and that snap has experienced it includes the continuation of emergency allotments for as long as the declared public health emergency percepts and that includes billions of dollars in food in administrative resources that u s d a has been providing to food banks so i think u s d a is is still under fiscal pressure here granted i don't want to get out over my skis because we haven't submitted a new declaration and in this court certainly with respect to the budgetary implications of the consolidated appropriations act i think that the agency is still trying to kind of digest that and to understand what congress expects of it with respect to this new appropriation but obviously the government's primary focus here on the floor  that pennsylvania has not yet dispersed the funds in question so if that's the case the plaintiffs have standing given that the relief requests that have been issued and their injury still hasn't been redress yes the plaintiff definitely have standing your honor the district court walked through the standing analysis we think accurately and appropriately the night circuit even though disagreed with on the statute found that there were standing there and here in this case we have far more evidence of redress ability than was the case in the th circuit we have half a dozen or more requests and statements from state officials from the governor  making clear that the state intends to and will disperse these funds to all staff households including those that are the poorest if we prevail in this litigation and  a is enjoying from imposing its eroni construction of the statute we think that more than satisfies the requirements for article three standing and poor and poor addressability in connection with the preliminary injunction there is no reason to think if this court agrees with us and affirms the district court that the best reading of the statute is that all snap households are eligible to benefit from these prior to the kogut really a couple weeks ago if you were getting one hundred and five when i was five as your maximum monthly allotment and then now it's the that we think it is clear from this text that what congress is doing in providing this emergency benefit this emergency allotment is it is directing that it be in addition to  normal allotment and that it is driven not by the factors that go into the thrifty food plan but it's driven by an actual showing of data on a state by state basis of the real world effects of the  each state's area and therefore it will vary from state to state that is the point of it i heard my colleague on the other side complaining about our position to the effect that we are interpreting the statute to turn on real world localized concerns that's not a bug in our position that is in fact a feature that congress directed for these and so it will bury depending on the actual data that a state hasn't terms of its real world impacts and it may change over time from month to month they have to renew these applications but the maximum amount  that it's kept at is the amount of the monthly allotment under the thrifty fruit food plan so it can exceed that that has now been increased by congress in the most recent legislation and under the emergency element they could be eligible for up to one hundred and twenty one another one hundred and twenty one that would be within the statutory limit it would then depend on the actual showing of need that the state could provide here no state has to think it's important to keep in mind as far as we're aware no state has asked for the statutory maximum for this emergency allotment pennsylvania has asked for half of it and it's provided that it does provide it and the government has determined that that that is that good i think that's really important this gift to one of the things i wanted to hit in terms of the other factors for a political junction to just kind of get those out of the way the u s d a concedes that the poorest snap recipients have experienced significant increase food costs as a result of the pandemic food costs and food needs as a result of the pandemic and that's pennsylvania has adequately showed that with sufficient data  putting aside the merits for just a moment there's no meaningful dispute that plaintiffs are irreparably harmed by the denial of these emergency allotments and that the balance of equities and public interest strongly supports the plenary injunction to address these increased food injunction factors that is a reasonable likelihood of success yes i think that's right and i think that's because among other reasons we satisfy those other criteria here very clearly for and terms of public interest in a reparable harm and they're not really meaningfully disputed on appeal that was the main point i wanted to make there you know turning to the lexia success on the merits but the plain terms and structure of two hundred and thirty to make clear that congress did not exclude the on the new emergency benefit and if you had better call your argument council that really requires us to conclude this is a new general benefit but then aren't you asking us to ignore the fact it's an active within the whole concept of the rd thrifty food clan and congresses determination of what i particular household of a particular income or lack of income level would need to satisfy their food needs i think you're asking us to ignore the context in which congress enacts its snap benefits how do we ignore that with respect your honor i'm i'm asking you to take all of the context into account and also focus on the actual language you to your honor is to chief judge thomas's dissent in the whole case that i think masterfully walks through and shows why each of the reasons that the majority gave for that construction are in fact erroneous and  do not support a plausible or appropriate interpretation of the statute so that's the st place i would look and i'd i would just push back a bit your honor that the standard for a clear injunction here even if the court were to fin that we think the statute is clear let me be absolutely certain about that we think the statute is clear and and even if there is certain and big unity and different aspects of the act we think the government's construction is impermissible as a matter of law that any ambiguity you might find would not support the interpretation that they have adopted here so that what it titled us to implement or injunction even if you think that it's possible to reach different interpretations but let me try to persuade us to towards to this the standards that are incumbent upon a party to obtain a preliminary injunction and i think you could a forum on the ground that one it's a flexible standard so even if you have some doubts as to likelihood of success if you don't think condition was mistaken that st element mistaken how do we find there was a likelihood of success on the merits you want us to adopt john's hans's opinion and i understand that and that's similar to the district clear enough i think that the government's interpretation is not permissible and so if that's the case if the statute forecloses the government's a term protection then obviously you can affirm diplomats action and even if you think there is some aspect of ambiguity we do not think it would support the government's interpretation and in any event the other factors for a player injunction are satisfied and i think it's and i think it is within this court's  authority and discretion to affirm even if there's ambiguity up based on your reading of the statute i think it is incumbent upon this court and we would urge this court to provide what is your best reading of the statute in the context of  another question let's assume we your your reading is the reading how do we reconcile with the appropriation that was put forth just days after the statute was anathema put aside whether the congress is aware of the u s estimates we have a dollar amount how do we reconcile that appropriation with your reading i think that's actually quite easy your honor because every court that's looked at this that not i don't think not in this context now in a certainly not when when you have a pattern of congress adding additional appropriations so george one of the main problems with that approach is it freezes in time the idea that congress was appropriating once and for all a ll funds for the snap program here and we know by what just happened that congress just provided a substantial make a very large and enormous amount of additional funds that are available for all of the snap programs including the emergency allotments that are at issue here and there's no reason to think congress would not continue to do so if the outlays are actually exceed those appropriated amounts and it is not i think with respect i mean i think it is a valid approach to statutory construction to say that when congress appropriated funds even though we have no basis to conclude they were even aware of the the u s d a s calculations or anything else there's certainly no reference to that in the tax there's no reference to it in legislative history and when you have statutory language that we submit is clear in the course you're bound by that but i just think that that appropriation is not a basis for construing the statutory text here forgetting the appropriation for the moment the latest coded nineteen relief legislation of a couple weeks ago it included an across the board fifteen percent increase since nap benefits and if i'm not asking this necessarily already allowed step benefits to get up to double benefits no not at all your honor in fact i think this is a really critical point and i think it is it's illustrative of where the government gets the statute wrong in our view  congress has provided for the normal monthly allotment and has increased the normal monthly allotment that functions in a different way than the emergency allotment the normal allotment following the thrifty food plan is and nationwide across the board amount of money available to families it doesn't vary from state to state you cannot read with respect to like colleagues on the other  cannot read the statute as mandating a across the board national emergency amount it is to be driven it is expressively to be driven by the actual data each state can provide and based on the requests that each state makes this is a this is a benefit that is designed to address the very state specific coded related increase temporary food needs that come under the pandemic and it is not intended to be a benefit that's across the board that remains true even after congress has increased the speed of the food plan allotment that provides the basis the baseline now and that sets the statutory tab but the functioning of the emergency allotment is still in place and the secretary of still mandated to provide an emergency allotment whenever the state a state comes forward and with adequate data to support the request i think let me let me follow up on the you have in march you have been in the city and then there are two days later guidance letter and a few weeks later two more guidance letters and basically they say that the max you can get is x can't get anything more than that you can get up to the max but you can't go beyond it though eight months later the summer of two thousand and twenty congress and acts another coping relief bill and it doesn't say that the normal maximum is different from the emergency allotment knowing full well us has interpreted this so it would seem that that would support the u s d a s position otherwise congress could say no no we we need to tell you that the there's a normal monthly allotment of that's a maximum and then there is a temporary needs emergency allotment to the maximum that congress can do that congress to do that your honor and that's the that's the point i'm i would like to make it and let me emphasize two aspects in which we think it is clear that that is what congress and congress provided an additional benefit that is permitted to go above the normal monthly allotment but not to exceed for that the limit on the new benefit is the same as the normal monthly allotment but the fundamental question of the statute in the th circuit even the th circuit majority recognized this all of the back and forth about the last and a seat in or the nearest reasonable referent rule does not answer the statutory question under the government's reading now it does under ours because let me just make this point quickly we think it is  passing strange to think of congress here as imposing a statutory limit on the temporary food needs a family can experience during code what congress or limit on it or congress is doing is they're upping by fifteen percent the maximum monthly allotment for households in the in the in the new appropriation i'm talking about the text of twenty three o two your honor and in that congress after the statutory maximum for the new benefit at the same amount as for the monthly allotment but it is still just a limit on the new benefit it's not a limit on the combined amount of the ordinary and new emergency benefits and i think that's the fundamental statutory question and i think there are a couple of points that are important to make there st the government can only get into that space by saying that the modif of the limit is the temporary food needs not the emergency allotment they make the argument that if the the limit here applies to the emergency allotment as opposed to the temporary food needs that they that they can satisfy the statutory tests that their position is consistent with the statutory so it's depended on reading that is only applying to the temporary food needs and the st point i was making your honor is that that's a very strange reading of this notwithstanding anna seen an original referent rule chief judge thomas makes we think is of an unassailable point that you should read the phrase emergency allotment addressing temporary food needs as a unitary phrase and concept because they don't operate independently this isn't a list which is the normal context in which you would apply these rules and the concept that congress would impose a statutory cap on a family's temporary food needs is bizarre what congress is imposing a limit on is the amount of the new yourself into thinking temporary food needs does not refer to the needs that arise during this temporary period of the pandemic you have to think of it in terms of all food needs and  interpretation i'm sorry judge cross cap on people's or family's food needs just a cap on the amount of money but even if you get there you still have to construe the term temporary food needs the th circuit for example the panel majority made this point they said ultimately those references to these gram grammatical rules don't answer the key statutory question the key question is did congress cast the total snap benefits at the maximum monthly allotment or did it create a separate separate additional benefit also tied to the monthly allotment and so you have to then determine what is temporary foods being under the government's position and there's two ways in which they distort that meaning the st is by saying it refers to all food needs during the period of the pandemic and i'll come back to that in a moment but that effectively read the work temporarily out of the statute altogether and the nd thing they say is that temporary food needs has to be read as only food needs that are caused as a result of lost criteria for how and when the benefit is available it is only available during a period of declared emergency at both the federal and state level and it's only available when the state could actually come forward with actual data to support the request needs without the word temporary food needs not greater than the applicable monthly allotment their reading effectively renders the term temporary superfluous because in this context because the timeline for when it's available is already set by these other criteria the term temporary is most naturally read to me non ordinary or pandemic related so the temporary food needs are the food needs that arise as a result of this pandemic that's the natural reading of temporary food needs here and it's certainly not limited to only loss of income i'd like to make the other point your honor that ties in with the points you made earlier the question you asked with regard to  and fourteen h three and i think this is a really important point as well because this is the only other place in the federal code where congress uses the term emergency allotments in connection with the snap program that's in h three a and it is true that that is a benefit that's being provided to address the loss to a limit it wasn't setting a limit on the combined amount of all benefits it was setting a limit only on the amount of the new benefit and that the new benefit the new emergency allotment was in addition to and on top of what was otherwise  ordinary allotment and then it's also important note that the very next section of two thousand and fourteen h three which is a three is the provision that has almost the identical language with regard to the flexibility in the reporting and processing component that we have in twenty three a two and in there there's no possible argument i'm sorry just cos i'm having a hard time hearing you so if i'm stepping on your question it's of the normal allotment and it is capped at the amount of the normal allotment but that cap is not to the combined amount of normal and emergency benefit it's only for the emergency amount let me try to address the statutory question with a hypothetical imagine that you had the exact same statute but congress set the amount of the new benefit at seventy five percent of the normal maximum monthly allotment there would still be a reference to the normal maximum monthly allotment but there would be no argument that you could make that this that by setting the cap in reference to that congress was somehow setting a limit on the combined amount of total benefits as opposed to merely a cap a limit on the new benefit it's providing there would be no argument that excludes forty percent of snap households that were already receiving the normal monthly maximum and there'd be no argument that temporary food needs can only be experienced by people that were had some income leading into the pandemic all of the government's arguments and we submit that they end up at the end of the day being a house of cards all of them turned on the happens that the congress set the amount of the statutory maximum here and exceed the congress if the limit on the new benefit at the same level as the normal monthly allotment is that the same thing in h three  but the benefit operates separate and in addition to and is not constrained in terms of the combined amount with the normal allotment and then we think a three b makes clear that you can't infer from that flexibility some desire to limit temporary food needs soley to the loss of income since it comes in a section here three b that is dealing only with the loss of food is not dealing with income at all and by congress is the term he used to think congress was imposing a statutory cap on something that's never mentioned in the statute namely the sum of the amount of the ordinary benefit and the new benefit we terms of benefits with in connection with the snap none of which is a legitimate way to interpret the statute but they ignore the actual statutory terms from seven u fourteen age three that congress is clearly borrowing here and if it does not function in the way the government says it is not limited merely to the loss of income and let's just look at it in the real world in the real world you may have gotten a subsidy and it was destroyed completely destroyed and so therefore two thousand and fourteen h three would say look we're going to replenish it and yes that may go beyond the maximum because you've already gotten something but everything's been destroyed we're going to get you back to where you were that's a different concept than what we have  and back to the point that i made before we've asked them out before we got something done in march you have three consistent guidances put out by us the eight months later congress acts another bill and went back to my time on the hill there would be people lobbying they would say wait a minute wait a minute they got it wrong us you've got to make sure that this emergency is deemed to be separate from the normal monthly maximum allotment and that didn't happen all they did was increase the maximum monthly allotment by fifteen percent that's the concern that i have you don't have the legislative history so much as it's post legislation legislation yes and i think i think it is a very dangerous basis for interpret we have before us and i also think it does not with respect it does not support the proposition that your honor is postulating because congress congress appropriated a very large amount of money for snap programs and it it didn't it didn't do anything one way or the other you have you had a district court decision at the time that was going one way that said we think incorrectly in terms of steps toward construction that the government's put  interpretation was reasonable and you had the decision in our case where a court had said that it was impermissible as a matter of law there's no reason for congress to step in and read the fine the benefit it provided the benefit and it provided this separate i do think i do think it is relevant in that it reflects that congress was aware that there might be expenditures that would go far beyond what would otherwise be within the agency's budgets and the like i think the keep in mind this is a general appropriations this isn't an appropriation that's focused just on the snap program it's not revising any substantive legal programs that already exist it's an omnibus appropriations bill i think that's one of the  imbue it with the kind of meaning we're thinking judge and bro and what it does show is that congress is paying attention and is appropriating substantial additional sums of money and there's no reason to think they won't to address the snap needs that arise as a result of the pandemic and otherwise the fact that congress increased the monthly allotment nationwide across the board basis doesn't change the fact that the law still requires twenty three o two which is still in force requires the secretary to provide a different benefit in a merge and see benefit that is tied not to the factors that went into the family  fifty food plan but to the data that a state shows about its temporary food needs and temporary food needs here clearly goes beyond loss of income two thousand three hundred and two c makes that clear by reference to food security in order for the government to prevail it has to convince you that congress was setting a cap on a family's temporary food needs that congress was setting a cap on the combined amount the sum of normal benefits and emergent in the new emergency benefit when the statute itself makes no reference to a family's normal benefit and it has to convince you that congress wanted to exclude forty percent of snap households that already were receiving the monthly maximum even though it is undisputed that those families are experiencing severe additional temporary food needs as a result of the pandemic and it will and you have to conclude that temporary food needs is merely lost income even though there's no reference to lost income anywhere in the statute and you simply cannot construe a broad concept like food needs or temporary food needs as being tied solely to lost income these are all reasons why their interpretation of the statute is impermissible i mean there is without a doubt the position you're taking great empathy from the peace process spectrum in this country but we have a statute that assuming that we find that this particular statute is ambiguous the isn't the agency's interpretation of the burn so consistently host  is that a couple that i would really highlight is that it ignores the real world data and effects of the pandemic which is what congress directed that the emergency allotments must be to conclude that congress intended to exclude the poorest snap households forty percent of pennsylvania from the emergency benefits when it is not contested if you look at footnote eleven in the government's brief they outright concede that these poorest snap households are among the hardest hit by the pandemic in terms of temporary food needs and food costs and there is simply no basis to conclude congress was doing that nothing in the statute supports that and the mere fact that they set the limit on the new benefit at the same amount of the monthly maximum as opposed  to a percentage of it higher or lower or imagine if they did a fixed dollar amount let's say two hundred and fifty dollars a month there wouldn't be any argument that that that temporary food needs meant only income there wouldn't be any argument that  congress was excluding the poorest households the fact that congress sets the amount at the same amount for the normal monthly allotment which is what they did in two thousand and fourteen h three a as well doesn't change the structure of the act doesn't change the fact it is only a limit on the new benefit that is the only way to read that statute and chief judge thomas is right about that the panel majority is wrong this court should not repeat that error as you've got three really good judges on the th circuit two of which are taking a position different from the rd and that would seem to indicate that this particular statute is not as well crafted as one might hope and as such is a big us well again i'm not sure that it follows that just because you know sub judges get the statute wrong the statute is automatically ambiguous in the th circuit i know this is perhaps a little predictive of the th circuit may not be done with this process and by the time all is said and done it may very well be established law on the night circuit that the statute is unambiguous i think this court has to look at the language and make its own judgment and not rely on the fact that some judges reached a different conclusion i think you have to look at the tax you have to look at the structure you have to look at the purposes of twenty three o two you have to look how it functions differently than the ordinary allotment under the thrifty food plan that it's not a nationwide one size fits all amount of money that it's intended to vary from state to state they have no answer as to why it is that congress made this turn on a showing of state by state data that has to be renewed on a monthly basis and updated when if it was intended to be a nationwide across the board thing that only true ups they're relying on a very odd application of the last man to see that rule they're relying on a distorted concept of temporary food needs that renders the word temporary superfluous they're relying on a reading of temporary food needs that makes it only turn on lost income none of this is supported by the statutory text by the structure or by in the real world effects of the pen damage that congress was intending to address here there's there's no doubt that the text reading the text literally the government would say hyper literally it can be helpful to your side but there's also another way to read it and you're saying that the government's interpretation you're telling us it's to apply it's arbitrary and capricious but don't you normally apply that framework when they're in agencies and gauging and policymaking through a notice and comment rule making which is obviously not the case here so i don't it is is it really correct to say from under administrative law perspective that there is in this case that the government's interpretation is drink pieces well i think it highlights why it's not intitled to any weight under skidmore because it leads to outcomes t congress did not and could not possibly have intended in terms of excluding the forty percent or more of the poorest and hardest hit families in terms of temporary putin needs with no indication in the past that's what they intended to do and so there are there are a lot of reasons why we think no deference is warranted here i would note that the th circuit provided no difference whatsoever the th circuit interpreted the statute and gave its best certainly our lead argument your honor that it that their interpretation is contrary to the plain terms and structure of the act and is therefore on lawful even if the court were to conclude that there is some ambiguity and some  room to question the interpretation of the statute here i'm making the additional point that their interpretation and the outcomes that it yields take it outside the realm of reasonableness and there's not a title to any deference well actually i think this this court's precedents make clear that the context of a mandatory injunction may bring an additional burden of showing the immediacy for the relief by showing  are well over any hurdle for that one other point i'd make just about the results of the government's position is they guess they have to convince you to think the statute is only about the loss of income and then they provide an approach that actually does not deliver in terms of addressing the the issue of loss of income seventy percent of snap households nationwide have no earned income to the extent there's income but from public sources that are unaffected by the they're just applying they want an easy to administer across the board national standard that just falls right into the thrifty food plan and doesn't vary state by state based on the showing of data and that's not what congress did here and you cannot interpret statute as just being another application of the thrifty food plan it is designed differently and it's intentional that it turns on a state showing of actual data on an ongoing month to month basis for th a flexible additional benefit on top of the normal allotment that can address the temporary food needs in real time based on that data that's what congress did here it was not just sleepwalking through the normal thrifty  exactly what it says it does it creates a new additional emergency benefit that is on top of the normal snap allotment that new benefit is supposed to be based on state by state showings of temporary food needs supported by actual data as it was as it has been done here pennsylvania here has its data shows that also have households including the poorest that already receive the maximum allotment under normal times are experiencing severe increases in temporary food needs caused by the that is not disputed they have approved the the state's showing in terms of adequate data that and showing that that that adequate data supports a benefit to all households including including the the poorest it's it's merely there eroni us interpretation that imposes an across the board restriction on eligibility that is nowhere in the statute the district court rightly concluded that congress did not exclude that my friend on the other side made that i'd like to respond to in rebuttal so st of all just very briefly with respect to your question about redress ability my friend cited several statements from pennsylvania state additional allotments in response to the pool in the area and junction as i believe my friend pointed out in their brief in discord and so we are now kind of in the worst of all possible worlds where pennsylvania but pennsylvania is also sitting on those allotments and so plaintiffs and other members of clean disputed of class are not seeing any sort of remediation of the irreparable injury is that they've asserted nd i think i believe my friend said that it would be bizarre for congress to have written a statute that purports to apply quantitative limits to needs that are experienced by households i think you know if that is a bizarre choice it's a bizarre choice that congress has made numerous times throughout the statutory framework underlying the snap program congress in fact households in section two thousand and twenty seven b congress caps the requirements of states for snap benefits at the appropriation for that fiscal year so again it's there's nothing unusual about congress capping kind of a real world need with its steps torrie remedy and if congress had intended to write the statute that the plaintiffs have posited to this court there's a very easy way for  and the fact that congress opted against that formulation and instead attended that limiting phrase to temporary food needs should carry some weight in this court's textual analysis and then finally i think kind of the entirely by brand new factors brand new determination supported by monthly state data and i just think there's good reason to be skeptical of of reading this provision as you are right i think as the th circuit pointed out in the hall these these provisions actually work together so easy to suspend the informational requirements that are imposed on state administering agencies and that state and minist agencies than in turn impose on snap and efficiency households and those informational requirements go to exactly what we're talking about and including principally income and you know sudden diminutions and household income agencies congress recognized that u s d a would likely lack access to keep information affecting households entitlements to snap benefits including sudden changes in income as the result of pandemic related shutdowns and as a result it provided a mechanism whereby u s d a could quickly address diminished household income or diminish household food budgets up to the full cost of the thrifty food plan without concern to the standard thirty percent net income offside so i think as the hall court decided that this u s d is interpretation actually harmonizes those two subsections into a harmoni regulatory scheme how do you response year and a serious point he made in his papers as well that forty percent of the beneficiaries under the program would not be eligible for an additional amount why would congress under you ignore those who are in the most extreme situation sure so you know i think the i think it's important to kind of put ourselves back in the  that the family's st act was not primarily a poverty relief bill it was designed instead to maintain to the extent possible the status quo of household financial resources while we paused the economy to that seem i didn't see anywhere is there anywhere in the legislation or things that would surround the legislation that could inform us that was the goal i'm with you on what was happening on markey when the bill was actually passed we all know where we were on march th and thirty right so i'm i understand that but we are working we glean from the statutes this is part of that that we will shirt so i will absolutely acknowledge that there is not the kind of robust legislative history that attaches to the family's st act or the cares act that we would love to have for other legislation of this scope and that's entirely attributable to the fact that these were bills that were cobbled together you know sometimes overnight i mean that this was an emergency that congress was responding to i think that it's reasonable to look at the surrounding provisions of the family's st act so not just two hundred and thirty to a one but also section twenty three dollars which is looking at jobless workers right this is concerned with weavers for the newly unemployed i mean that is clearly focused on people who are suffering immediate economic effects from the pause that we are imposing on the economy in wonderful committee report that i can point to saying this is exactly what we were doing but i think that there are reasonable inferences to draw from the surrounding provisions of the statute and then you know just you know  oh right so so judge krause i think that the heavy burden so everybody i think that knowledge is that the mandatory injunction against the government that disturbs the fed is quote the disfavored remedy and that point if for mov have to establish a heavy burden in order to show that it's justified there is kind of competing i think in the case law about whether that heavy burden applies kind of uniformly to all the factors or applies only to the equitable factors i think there's also a question under this court's fighting scale approach whether putting your thumb on any one part of the scale necessarily communicate hidden burden as to all parts of the scale i guess i would just say i think that you know no matter how you conceive of that point of have failed to meet their burden i think there's also kind of the separate burden here where  this court case law says that you have to be convinced there is a compelling basis to create a circuit split and that that is especially true when that that reluctance to create a circuit split is especially acute where the rules that issue are best applied uniformly and here are obviously u s d a s to session is that congress has intended snapp to be a uniform nationwide federal benefits program your decision to affirm the district court's preliminary injunction would necessarily now create a circuit split with the th circuit so i think even kind of setting aside the various preceden about where the heavy burden applied for the respect to just applying a mandatory injunction there is this separate thumb on the scale that needs to come into consideration and then just just finally and let me just pick up on that  e i mean you try to read the statute the best you can and reasonable people can differ and if they do surface there are certain splits but in connection with this case you've got yes you've got pronouncements there some reasoning given as to why you came out believing that you no matter what happens you can't get more than the applicable markedly maximum allotment well your honor i think  here and we were on during our best to rep that that's that's march th in the but you also have april th and right after that so you've got some time to come up with some reasoning and i couldn't find any reasoning and also it's at the very into a little bit more detail explaining its reasoning here and it specifically cited the example of supplemental allotments that are used to top off snap participating households in disaster settings and said that you know we view this as an instructive example for how congress is intending us to administer these allotments and that's basically the rationale here i mean it is essentially just you have this agency that has honor i don't know that we can really read that much into it i think it is instructive that congress in terms of explaining what it was doing it used the term temporary food needs which is the term that is understanding kind of the background statutory framework and and what congress was legislating against i think it's certainly reasonable and as the whole court found in the th circuit the best reading is u s p s approach and i just  separate benefit that is driven by data and factors entirely separate from those informing normal snap benefits and i think that one reason to be skeptical of that reading of this statute is just the  degree of legislative delegation to the agency that that reading would entail if pleated sir correct then that means that congress has created a centrally twins snap program or a clone snap program that can be every bit as massive as a regular snap allotments but instead of providing the precise inputs for the benefit benefit formula as congress did in in the food nutrition act with respect to regular allotments here point contention that congress gave us essentially carte blanche to define what kinds of market pressures and community difficulties qualify as temporary food so u s d a way would have to decide whether certain price increases discretion over potentially tens of billions of dollars in additional snap liabilities in us years lap without providing any exemplary factors without providing any contours for how that discretion would be administered you know even in section eight  which deals with the comparatively modest issue of logistical adjustments in terms of procedural requirements for for the snap program congress listed a whole bunch of different things that are exemplary factors u s d a can take into account it was did none of that in subsection a one in terms of what could qualify as temporary food and so and again i think it just it beggars belief to think that congress would  would essentially double snaps you know financial exposure and create this twin stamp program entirely on tother from the thrifty food plan without at least providing u s d a some guidance in terms of not just our us but the grieving that was done mr simmons did you and your firm took this matter on pro bono yes we have your honor well thank you we owe you it a debt of gratitude really really well done throughout from you and your colleagues at morgan lewis very well done very well done also mr hand on your side is as well i would ask that a transcript be prepared of this or argument and i would ask if the government would pick up the cost for that if you would please absolutely