all right well call the next case of the morning number seventeen one zero seven five nine jury so verman jobs we do not know the exact sum at this moment of the reconciliation and that's because in some instances of the premiums would have been higher but we also know in some circumstances after the fact now th might have been paid out and so the agency will go through those calculations to the best of its ability now after the fact but so previous will be higher but also coverage will be higher and so presumably the plight of to break this case to pay higher premiums for that they're hoping to get some say in that eight exactly that's why i would imagine that it would not be a very good case to go through all this trouble to win just to pay higher premiums for your that's already happened if you didn't have any cost that's right  presumably plaintiffs are betting after the fact that that math will come out to their favor but critically at the time of the sales closing day for their policies for winter wheat policies the actuarial data was not in place at the but that's exactly why the agency could not permit the producers to elect to the exclusion methodology at the time because there was no information available to implement the the time the agency completed implementation at the end of two thousand and fourteen and so again we could was up your honor that was in i don't have that immediately calculated in time for that crop year that's right there was regrettably a small subset of crops for the two thousand and fifteen crop year by virtue again of the timing of how all of this works in the crop insurance market we have a standard reinsurance agreement that sets the terms of risk law sharing between the agency and the private insurers and that occurs in the summer and we have the sales closed be the day by which the producers elect their policies how much of their anticipated deal that they would like to insure and that date fell at the end of september two thousand and fourteen and the agency regrettably needed two more months to put into place all of the data  actually i don't know if it's common in the farming but is not that uncommon in the insurance world to have an initial premium and to have the policy actually say this is based on thinking you have eighty trucks but we realize that that number varies over the years and suddenly hurricane harvey happened and we needed to get a bunch more trucks to go deal with that and so now we have one hundred trucks and readjust we the premium where the insurance company readjust their premium for you to the company that suddenly work with also this other element the standard reinsurance agreements where before the sales closing the insurance companies would have elected the amount of risk that they would like to bear in combination with the agency and second of all though congress has mandated that the agency maintain the actual aerial soundness of this program relying on actually really sound data that as i mentioned simply didn't exist at the time but if you notice now and you all of agreed it's not moot because you can give the relief now that we just discussed the higher premium but higher coverage whatever and so there while it may not be have things were nearly done congress passes this brawl that throws a bit of a to do something last monday today's the first time you asked me that's impossible so we don't have that here it's not only i'm not impossible it's not even all that impractical so perfect so i'd like to clear the world but it  maintain the actuarial soundness of the program set premiums and actually really sound manner the court would effectively be saying that the corporation can set rates it can pick a number out of thin air where it's not supported by data and that is not how the c but that excuse me but that doesn't seem to jibe with the record here because the department was in fact able to pick rates within seven months for seventy five percent of the crops and apparently with actuarial soundness so what i mean i think i'd have to hear something more explicit about winter wheat or whatever the other crop was that made it so difficult you don't have actuarial sound the basis of crop by crop do you but your honor i think this is an important point that it's not possible as plaintiffs might prefer to frame in this case to just prioritize one particular crop over the other and to look at this well they department did because it complied with this it gave this benefit to all of the farmers of seventy five percent of the covered crops of within you know oddly enough peanuts and the cotton farmers got a better deal than the winter wheat farmers you know in two points there your honor in response to your question we need to see did not prioritize certain crops over the others the agency finished implementation excuse me but your argument says that the plaintiffs your your briefs explicitly says that the plaintiff's argument would interfere with the priority cept i the department the agency in its expertise carried out the all of the initiatives the new programs new insurance products contain in the two thousand and fourteen farm bill there was much work that was universal to several other programs and to all of the crops and so it is yes your honor because it's simply i'm clear in implementation deadline in the exclusion provision itself congress did not contemplate much less dictate a drop dead deadline in the  is in place and that makes perfect sense because as i mentioned earlier otherwise the agency would be setting rates in a manner that wouldn't be supported by the numbers and it would risk actually the larger integrity of the crop insurance deadline contained in the exclusion operation yes that's correct yes and so the agency reasonably interpreted that absence of a deadline to require action where real data in place series of administrative actions and groundwork the data the i t systems to process that and receive the data and then the actual calculations the actual aerial processing to set the rates before it could advantage of the methodology in subsequent years because if you didn't see completed expeditious implementation and less than one year you're saying they're not you're saying you're you are you are not covering them for the fourteen fifteen crop year period that our earlier discussion your honor that you really are you are well yes we would comply with an order from this court to recalculate the difference and reconcile in compliance with the district incorrect interpretation of the exclusion provision of the crop insurance act and it imposes obligations that are entirely inconsistent with the mandate to maintain the actuarial soundness of the program and in fact the corporation does not have authority to offer prove that particular winter we crossed that your honor the congress and mens the crop insurance act from time to time and crop and the crop insurance program is ongoing throughout every calendar year but you can apple e's in this case didn't follow the law the law was specific that this is a ph exclusion was available whenever and a ph policies issued or whenever the corporation uses a all of these policies in effect were a ph policies so it shell apply whenever they do that that law came into effect in february of two thousand and fourteen the deadline for us to elect our  policies was in september of two thousand and fourteen so several months between the time that that law became effective to the time of our deadline and on that date the law so says that producers have the opportunity to elect this benefit it's going to cost more and so for example a wheat farmer in iowa that has not been suffering catastrophic droughts would not do that because they're a ph their production history would be solid but what happened was in west texas in haskell county texas out to seymour north of babbling that area had been suffering from catastrophic droughts for year after year after year and so these farmers their production history had holes in it and so there what that did is it brought their yield down it brought their availability to obtain insurance down to the fact that they could hardly even breakeven so bankers require insurance construction over general vs specific if you look at the specific statute that they side on actuarial it's very general it just says look f c i see you need to make sure your programs are actuarially sound do the best that you can to make sure statute which by its own language if i wait for said that this will be available when ever the corporation issues these policies it's very specific very broad in specific to us is there's really no bar there was no bar to them providing this information prior to september of two thousand and fourteen it was just a priority for them but all the statute requires is that it's available and that we to come back and do it retroactively the statute only require that it's available and that we elect we checked both of those boxes and therefore they could come back now because we would even know if it would benefit us other than the banking until the summer well my question is this your clients missed out on this adjustment for one year presumably they've gotten the adjustment for the subsequent crop years right yes in the fall of two thousand and fourteen they would have had a lower insurance guarantee because of their deflated a ph had they been given this benefit the papers would have been recalculated they could have excluded the catastrophic years which were three or four years in this i mean there were a period and their insurance guarantee would have been higher and it turns out in the for the twenty fourteen twenty fifteen year they had significant losses again because of well that's what i was getting not be here today if it was not financially beneficial to actually survive that i made earlier but i guess why doesn't the analogy that i used to insurance policies where they say we're going to face the premium on your representation of a truck's recognizing that you might end up with a hybrid trucks and that we wait the premium rate just everything  where the f c c has come in with an extended deadlines they could have extended the deadline for the election they could have said well you can let us get this to work because we did seventy five percent in two months actually because they start in october going to done in december let us work on this twenty five percent and we'll get it done by december eighteenth and you can elect them because still no one really knows whether it will benefit them and tell harvest let me ask you about that didn't they send the notice i've that implied that they could take it right which is why your clients all took the election oh no no no you them i got it back yes so army is basically the agency that governs crop insurance they would have sent a notice to the a i p s approved insurance providers which are insured and told them to send a notice to tell them so no just a slice i mean i read those opinions and i'm just a little balled up on the yeah and so to me this is my  very brief kansas small town farm boy explanation that this this was just really a jet i mind tricked by the agency to convince folks you can away that's why as far as i know only my clients have elected and qualify for this because they said in this in term rule oh you can do this not available until there's actual work information well each farmer can go to their on the website and look at the actuarial and you'll say oh it's not available so they basically just told everyone it's not available so a lot of people just waved their rights they just lost it now if you're looking ok and was that sent out only as to the winter w so in various ways they ip said i mean i may have meant misread this but i thought in the briefs it said that the cotton farmers and the peanut farmers were taken care of were well so did they get that kind of notice that discouraged them no your honor in the timing of this is very important and it goes to one of the arguments in the brief the director for example relied on congressman conway who in july of tw fourteen after he started pleading with them up at least take care of the cotton farmers at least take care of the spring crops the timing is very important because on july one is when army published the  term rule that says you only get this field exclusion if there's actuarial document you're not implying that there's politics and follow no never your honor and so i'm glad about that so of course by that time pushing at least take care of our spring crops man i wish i had i had all kinds of cotton farmers lined up but they say they fixed it but the deadline for cotton farmers is march fifteenth of two thousand and fifteen because it's a sprint car so it was all about this timing and they said oh we hustled around and so from october to december they worked on the spring car a little i'm wondering how originally when i was reading all this i don't have a very good context for it i'm not a wheat farmer from west texas but i i was thinking what you know nationally there's a lot of data this is a hard thing to do but the way you postured it beginning your argument made it seem like to kind of know where there's been a graph you kind of know where there's been  a problem and so it's a more focused in court we don't have to go calculate that you know the wheat farming in florida does not exist and we try to go and deal with where we think the action  just try to do our best instead of saying hey this is an area that's had a lot drought let's prioritize that over an area that hasn't had drought or issues and has sort of had normal crop years for the last however many years well and i would what i would say your honor is simply rewrote the statute the statute says that they ship that this is a ph exclusion shell apply whenever they use production records to determine the actual production history now one of their arguments of course is that in thousand two thousand and fourteen farm bill congress set implementation deadlines for certain parts of it right they sure did and not for this so what are we to make of that well because if you look at the statute we have already this application requirement that says that this you the yield component the five zero eight four shell apply whenever they use production records to determine a ph and so there wasn't any need for an implementation and your honor i would cite to their case they they if you look even remotely comes to this issue and you know what that dealt with the food security act of one thousand nine hundred five and a food stamp program and they were they were trying to determine whether this modified added benefit the president reagan put in for food stamps would apply immediately or would have to wait for regulations and there the court looked at a nineteen eighty one amendment where the the act said it would be effective even implemented upon dates as the secretary of perscribe said taking into account the need for an orderly implementation and in the however many case they said see the failure to use similar language like that in the so your honor i would give and i would just say that they're trying to rewrite that applicability to put a comma behind it and say unless we are too busy to get it to get it and actually i mean that interchange you know i had draws into question whether there are really too busy maybe too busy to get nationwide every crop under the science of speak but it seems to me it's a no no and no at least you know what will fact what are the region of the crops that might have a need for this as opposed to just you know randomly and necessarily calculating the world absolutely your honor the u s d a is a fact data gathering which would simply be that they would have to go back look at the actual data of what happened look at whether there was a loss look at what yield what years we could could be excluded for haskell county and the surrounding counties d the acting administrator under examination and my understanding is that they just are taking the the stance that if we don't have time to do it or if we don't want to do it we don't you can't force us to do it it's really a roadblock where the this agency is just does not want producers telling them what they should do and from my perspective because they don't want to well because it's not a vigorous i mean you don't even get to chevron because you just look at the statute on its face and there's nothing in big us about the language thank you i hate to throw a wrench into this but in essence you're seeking the money judgment from the government are you not well we can't actually do that under you darn right you can't not in this court yeah well we can't even at the ministry level because through an ad appeal our only remedy is to the national people's division of appeal through the u s d a our only remedy is for them to tell f c i see that they did it wrong that they erred and so it wouldn't be so it doesn't go in like the tucker act or something like that unfortunately no i mean we have to go back and and sometimes we have to come back and and but i think you're not sure whether the tucker act i don't i don't know enough about it but you don't want to have to start over in a different court system no no i  think here based on their representations if if we prevail that they will go back and pay that the numbers are all there you know the it's all set up it's not i mean it could be done it goes back to the f c c for that process not think you missed trigger you thank you i'd like to make just a few quick points on rattle first of all implementation and as your honor pointed out there are other provisions within the farm bill where congress pyaar let me ask we understand that but i think it's a very important point that they say that none of the authorities who cite for this distinction between apply and implement support your argument so i would like to hear something about that because you know fundamental to what you're saying yes and we obviously disagree that's not correct and i would point the and the court said looking at that language take effect it is ambiguous we don't know if that's referring to the legal effectiveness of the program or whether congress meant produce results fully and in that circumstance the court promulgated the point at which it takes legal effect and the point at which it just fully implemented and here actually i think it's very useful to look at the contemporaneous legislative history of the conference at the time also explicitly recognizes the difference between the effectiveness of the exclusion provision that the availability of that methodology and the feasibility of carrying it out and congress said to the extent it is not feasible to carry it out right away so congress recognized that even no it is not for an arbitrary reason yours because it's providing a methodology of providing insurance was a methodology at the time would have violated other statutory mandates it would have risked the actuarial soundness of the program and a ruling to that effect may their own priorities i mean frankly i think you could have got it done and you didn't get it done so it's not something possibility again it's not telling me to day you needed to do something on monday well mondays past i can't go back and do it you all have computers data i'm not saying it's easy that's not my point but my point is that if you have the resources to get this done it's not unavailable to you the data exists it's a matter of putting it together in a way that's actually sound and take your honor point but respectfully no it wasn't possible at the time and as one very concrete example congress instructed the agency to offer this method ology on a per planted acre basis which had not been i'm sorry just to be clear here it's not that the and i see my time as a second answer yes question it is not that the agency prioritize one crop over another it took a certain amount of time nurse to complete the data gathering the processing in order to allow any producer to elect the methodology and plan to seek to paint this case as an unreasonable delay case which they have not framed and frankly other plaintiffs in unreasonable delay cases probably wish an agency would act as quickly program would have been at risk had the agency permitted someone to self execute to choose the methodology without the necessary data place and that's again because going back to our earlier discussion of the way that  but but that's not the point the point is whether well we'll read the testimony we have we have your arguments we're just going to reverse thank you the court