surgeon from the department of justice representing the secretary of agriculture and i'll try to watch my clock and reserve three minutes for a bottle this appeal concerns a twenty fourteen amendment to the federal crop insurance program historical yields divided by the number of planted acres so what the twenty fourteen amendment allowed and allowed producers to exclude from that calculation certain uncharacteristically low yield crop years so significantly the data that was needed to make that calculation didn't exist at the time the twenty fourteen amendment was enacted by congress rather the agency had to generate that data addition the agency also had to prioritize how it was going to address that as well as take into account a number of provisions of the twenty fourteen act that  set express implementation deadlines and other provisions this particular provision was silent on the implementation deadline because of let me ask you a question about your statement that the data didn't exist on the low crop years is it that it didn't exist or that your agency can probably previously collected that data or is it that it wasn't collected in reference to this specific program so this is addressed that page forty six of the appendix it's under secretary uses statement and he says that the yield data did not exist for some years it just wasn't there at all so what the agency had to do was decide how what they're going to do about that and one of the options would be to impute a number for that year based on a some kindly feeling that lee had to do i mean if it wasn't there it wasn't the it out today over last year right so wasn't there but what the agency had to do was make a policy judgment for what it was going to do sure so what do you do for that missing data and they have to decide how to how to make that judgment in an actuarially sound manner because this program of course is not a handout program the program is supposed to be self self supporting the agency is supposed to set premiums so that it will cover all of the expected  payments so and again a number of the other provisions of the bill did have express implementation double lines and because of this the agency was not able to generate these numbers for the twenty sixteen year for winter wheat producers well that's what's the rule on implementation when there's no express deadline is jim position that's when there's no express deadline you can do it whenever you get around to it or is it that it's effective immediately so the rule is i think the in this case are pretty basic position is that it would because where it would have been impossible for the agency to implemented immediately then the court should assume that congress would not intended that because romney was talking about that from n f l because it it's not impossible i mean you said you had to make priority judgments and so you chose i mean you didn't do this for other crops right so we have two points that first of all it would have been impossible for the agency to do this on the date of the nachman right and that's important because what the district court here said is that the provision was self executing on the date of enactment well that can't be right because again i think i don't think the players that never disputed that the agency needed to do these calculations make these policy decisions to do something well so you're right made very well and i don't want to step on your ability to fully answer a bit on the first part of your answer isn't that isn't your right then with congress because the fifteen zero g s fifteen away g four is either and big us or start a big us and it seems on alone and only to think that you would necessarily quarrel with this too much maybe a little bit in your briefs but on it in itself it seems awfully clear that congress maybe foolishly in itself this provision seems to say express a congressional policy directive may be foolish that if you're going to say that if you're going to allow insurance crop insurance for actual production history provision is not part of the twenty fourteen bill as a preexisting provision second point that provision itself doesn't support that just for court's judgment that the statute that's a twenty fourteen statute was self executing on the with that set out we believe that's not a reasonable way of reading that statute because again when congress in the act of the twenty fourteen and then bends it to the agency under an express deadline on a number of different of the statute those those provisions to set out at page seven of our brief and they are they are really extensive they address a number of different requirements and again the agency was not able to but the agency reasonably prioritized the spread of the provisions of the twenty fourteenth amendment that congress holds it in had employment for that crop year and that's the problem i mean don't you timely develop data for other crops i mean not all crops that would be subject to this bill were were excluded right right so my understanding is that we will we did first of all so ok so correct let me stop you there and ask your question  i guess my concern is is that under you and in part of your position is is that hey we had to make a judgment call we couldn't do all crops at once we had to make a judgment call and get that data for some of them we couldn't get it for all of them as  well with an amendment to that and i think the end the real answer your question is my understanding is that the reason why they could do it for the other crops but not the winter wheat crop that's because the winter wheat crop is team earlier in the season so the way this works is you know it it just pushed out into two thousand and fifteen depending on when the crops come in for the winter wheat crop came a bit at a time where the come off date was one of the was the earliest one so they couldn't do it but it is as they make these policy decisions the policy decisions are able to be made in time to provide the exclusion for the other crops and that's why that's why they're going out the way by the september deadline for the winter wheat coverage had the agency accomplished work for any crops so my understanding here in the spring crops i'm i want to be careful but i'm not sure but the record shows that the agency was not able and the work that had been accomplished by that point i thought and also indicated that by that time you also had another data to address winter wheat so i i think that's correct by december we would have yes  about december you had data for everything all crops we had a for winter wheat i'm not sure about the other in just so just so you know what my concern is maybe you can address it is i think you've got a clear statutory directive and your position is of the agencies are going to get to use its judgment to pick the winners and losers and i'm not sure that was delegated to the so i understand that i think our position is that the language is not clear because it was from a prior enactment and that x that language there was put in there for a different purpose that actually supports us here congress put that language in there the implementation date language for two thousand and one to extend to give the agency more time to implement the changes that were enacted in two thousand and one so it was and it served that purpose that was the purpose for that and now we're in a different situation right where congress has laid upon the agency express implementation the lines for the twenty fourteen act that prevents the agency from doing what otherwise would have been required to do under the the a for profit so we're just we're told we're to believe in the probably myth that we're to believe that when congress admins ads and just statutes that they know what they're doing and that they read the entire statute and understand the flow of the statute when reading the whole so i don't know how we can ignore the fact that you have a for a requirement on the books in front of congress when they added the c one amendment so i think it actually works the other way aroun i think the way the presumption works is when congress and then the statute that congress is aware of the prior statute but the congress does something in the subsequent statute that makes it impossible for the agency to comply with the previous statute sort of  position was that look the agency has to do this retroactively whatever but if you look at that ninth circuit opinion that supports what i'm telling you because that was a situation where congress had told the an agency to issue an endangered species list ruling within a year of a notice and what happened was congress didn't in between pass the moratorium on the use of funds for that express purpose and the ninth circuit said ok well you have a subsequent act by congress it's aware of what the previous requirement was but have put a moratorium on that so we have to say well we can say that the agency had to comply with that previous statute were congress was first presumably aware of it and then put a mark moratorium on the use of funds so i think that that supports us i was it your contention that the fifth circuits case in and kansas improper or sort of misapplied the ninth circuit authority rights of the fifth rebuttal time but i want to make one other point that i think it's it's really important the other thing that ad can said is something that's not in the district court's opinion here but it's it's worth knowing the first circuit said that again however you look at this because the agency has the numbers now it has to provide the benefits retroactively and decided this one circuit case which we say the court misinterpreted when i want to make a point this is this is very important in the in the record that wouldn't work here because this would expose the insurers to greater liability potentially than they agreed to when they not only issued the policies to these farmers but also agreed to a reinsurance agreement with the government so this is a situation you can't put the act where was this is going to this is going to harm to third party interests of these insurers because so the fifth circuit is wrong  cancerous go back in the same way you could in the ninth circuit case maybe we're looking at a special bill you know just fix it right that would be that would be the remedy congress would look at this and say yes but i'd like t this case the f d i c is so anxious to get that to a chevron that essentially they skip right over the first step which is is the statute ambiguous or more particular has congress spoken directly to the issue at hand and in this case every court that's looked at it has said yes the fifth circuit had a really great section where they break down this in the case of a producer that makes an election under b or c the corporation shall adjust the premium to reflect the risk associated with the adjustment made in the actual production history of producers now that would apply in this case predict right absolutely now so how would the f b i see unless it head collected the information be able to adjust the premium to reflect the enhanced risk without that absolutely any calculation of the premium in the setting of the guarantee go hand in hand there's no doubt that they just you would have to have that information in order to comply with the statutory right shirt and they have an obligation and the farmers have a corresponding duty to pay the enhanced premium to reflect that adjustment right that's correct so why isn't there at least some plausible divergent of of ways that you can read these provisions just on the one hand congress has spoken in g four i think the provision that you rely on and on the other hand you have this other provisions and other provisions that are campaign of religion saying that that the farmers are going to have to pay more calculate actual production based on on these records you have to do it in this way well the premium is a function of your actual production history because the premium takes your guarantee and figures out what what you need to pack and so it's already baked into the a ph exclusion because once you exclude these years your premium goes up because your guarantee goes up so those two things work and see in concert anyway and so it goes premium right and so congress obviously was expressly contemplating that there is going to be something on top of what it did in g for a at they just say that there is going to be some additional premium that the farmers have low producing rockier absolutely and i think what i would say is you can't do either one of these if the agency doesn't have the data and so you can't honor the ph exclusion for vision and you can't adjust the premium but that said that doesn't take away the obligation that is on the agency to go out and make most of these statutes affective and then us well there's no conflict between g for a and the provision that you were citing based on it only may become ambiguous when you bring in this extreme good evidence it might mean something different than implement because your adversaries argument is that well the these are textually different they are is if you're saying well they are  reconcilable but the counter to your position is well that assumes that that congress when it did apply meant that it will be implemented at a particular day and that's special within the context of this particular statute that it is anything other than a direction to the agency saying you need to do this but let's say that it doesn't mean implement well if that's the case the default rule is it's still which was very similar to the changes made in the calculation methodology of this case and they went back to the previous laws in the food stamp act and previously congress and said this is affective but it will be implemented basically at the secretary's discretion understanding the need for orderly implementation then the human case which again a style looked at that and i said well you know they didn't use the word implement here so we go back to that default rule and they used before they don't do that here therefore we think it was immediately effective immediately available so i don't courage attention to be made that case if the government's position here that or it was an overburdened some problem that congress put a duty on them that they physically couldn't comply with and that's where i don't they they certainly impossibility argument quite a bit and they do it for a few different reasons but i thought first of all i don't think the record shows that it was impossible record shows they didn't start on a ph until october and yet they were able to have winner week figured out all congress knew how hard this was going to be and that means that they didn't intend for it to be immediately available well if you look at that conference report congress knew that this was going to be difficult and that's why it said we that there were going to there were going to be allocation for that we can consider that's correct but it doesn't hold up to say congress thought this was going to be impossible therefore they must not have a ten intended to be immediately  the word implement either in fact there are there are instructions are very similar to the one in g four and they say agency you shall do this or you shall make this available it doesn't include any sort of specific implementation language so when they say well we had to get these because these had implementations language that's just not true i'm not sure if both the question really could be directed it eit in pages disputing this of whether they could have done prioritize the crops differently but i'm not i don't understand what that has to do with at least this chevron issue in district court and i don't think you did you know i know and this is not an unreasonable to like that's the right direction so if it's not an unreasonable delay case then what is the matter if they could have done it goes only to their argument because they say the end possibility is extrinsic evidence to create an ambiguity in the text and so i agree i don't think we ever get to evidence of them possibility because the taxes on ambiguous by the other judges and said well let's at least take a really support that for purposes of this because that whether or not it's immediately available is not within the expertise of the agency which is the whole public policy reason why we have this deference anyway and so we that was  then was affirmed by the fifth circuit and the district of colorado there are two other cases percolating right now in the district of oklahoma in the district of kansas but that we have not received a district judge ruling on those cases what's their status judgment but rather just this this is the briefing for the the judicial review determination so with respect to the other statutes in other parts of the twenty fourteen bill that i've said that the agency prioritized because they had express dates implementation dates my friend says that the statute didn't say implementation i w soon as possible that not later than the twenty sixteen reinsurance year that's pretty clear and then and there are several of these so these clearly say that they provided implementation dates speak to it at all it's immediately affective but that they can change it by providing a different effective date so i think actually respectfully the flip side of this is the way to look at it and that is where congress in the statu judgment i have a couple other points but i'm over time if you'd like any other questions i don't have any thank you thank you thank you both for your arguments the case is made it will take a ten minute recess at this time when we return we'll hear arguments in herrera versus united airlines