regulations are not included either of those regulatory agenda you know this is not a this is not a congressional committee you're arguing to a to a third third branch institution which is already there jurisdiction to intercede only in the extraordinary circumstances so don't give us this list of what they're going to do and not do this year next year the year following year give me what's what's your best case for a public grant of mandamus for agency unreasonable delay need circuit in error shod has adopted the track factors with respect to cases not involving statutory deadline of course we do submit that in a case involving statutory deadlines the track dr should not be applied and rather this court must grant a remedy when there is a when the agency has missed that deadline but i would submit that your honour's don't actually have to address that question today because the equities clearly point in favor of a remedy in this case the track makes it clear that the most important factor is whether congress has indicated a speed with which it intends an agency to act and that can be no clearer than when congress imposes a deadline as it is done here but in addition the track factors make clear that the court what the agency has said to the public and what the agency is that this court i would submit that if your honour's are to go and look at the government's briefing in many of the seven or six one cases what you'll see often is that the government is presenting to the court some amount of detail about the agency's plan to comply with its recalcitrant for an agency not to take an action that the congress refuses the appropriations committee has refused to fund your honor i think that if you one thing if the case were brought during agenda and did not include in that agenda that you want to be regulations i think the the the delays becoming even more of reasonable the longer the way that we get from the twenty twelve excuse me the twenty ten deadline and the longer we see the agency not taking any action there's simply nothing in the public record nor before this court to suggest that the agency is taking its congressional duty seriously and your honour's the agency certainly has a criteria well they have to publish regulations that would establish criteria they could how have they can maybe understand your criteria but i don't think your honor that the congress gave them any parameters and what that could serialist look like and we certainly are not congress has commanded if they had that if they had adopted taken action stating we are we are we are leaving our historic policy in this in this regard and take the position the formerly we were and in its place promulgated the opposite rule you wouldn't you would still be here you would not be here well i think well your honor on our seven to six one claim i think if if the agency had published regulations establishing criteria for what i would consider for to it to be violations and we would not be here regardless of what that criteria were at least not under seventy six one seven zero six one simply ask the courts to compel the agency to do what congress said it must do you would still be here you would say that that was a violation of the of the command congress's command absolutely not your honor no i mean that's not that's a fact of lee what they did that they've done i mean they took they took action and they withdrew the act criteria not even the government would suggest that there is that there are established criteria that the that the department has put forward and i think it's important again your honor to separate out to a one point two one one which is the statutorily mandated regulation from the other former fair practices and we have no chance it's going to bankrupt our agency to defend all this you know where they're coming from if they done all that stuff do you think they'd be ok in withdrawing no your honor i don't think so because congress clearly had all of that in mind when it imposed the mandate and i also don't think that it's this court's position to question congress mandate in that regard nor is it the agency's but it does say the vague criteria and it doesn't say whether right on in front in the after the little one on each of the sections of the original act to estab criteria whether rather whether rather yes they could pretty much put negatives there right they could pretty much say we don't think there is a criteria on the new preference we don't think there is a criteria all right that comply with a law that the agency considered sixty one thousand comments and help five public meetings across the country considered the rules for a total of almost six years before putting forward the rules and indeed recognized that at least or or my suggestion of khalid may look to a great many other people i think your honors are bound by the supreme court a by the supreme court case law in this regard that would be fox television in you know motor cars and in those supreme court is clear that although an agency is allowed to change its policy it must provide good reason for it and we don't believe good reason has been provided here the agency when it issued the fire a fair practices rules intended to increase private in forstmann of the act it considered the cost to the industry it considered the cost of the department and it said that the benefits that would accrue to small farmers across the country outweighed those costs less than a year later he changed his mind and now  benefits and determining that although there will be no benefits accruing to farmers the cost to industry more important that's absolutely an acceptable change in policy for for an agency to make especially in a change of administration but what they must do  finalized towards the end of the obama administration had not yet gone into effect the trump administration took over and delayed the rule without going through notice and comment and the and the agency basically said that it did not have to stick to the rules that were published proposed rules that's what they did but they cannot to do so if it violates congress mandate which at least one of the what's wrong with the proposal but we don't have any do i if we do this gets the remedy i would i would i see no bait no basis for us to order reinstatement of the proposed rule the remedy you would like if you are right on the strictly on the unreasonable delay it seems to me the only remedy is to order them to take action not to direct what action must be taken at six one claim i completely agree we're simply asking your honor so issue an order with a man again any or any of your claims there is no claim you have that i can see that would authorize give us article three authority i was if it was if there was a change of policy that was wrong on the merits that's a different situation but you you would through your delay argument and that's when i said is there any delay unreasonable the l your opponent so it's not even on your regulatory agenda i don't she is correct that it is not on the spring two thousand and eighteen regulated regulatory agenda that does not mean that the agency is not working on the role with that it is not committed to complying with congress's mandate in fact it has every intention of doing so and i don't know what time frame while the agency has not given a public timeframe for when it expects to comply with the rule but the agency has authorized me to say that it intends to place the proposed rule on its regulatory genda for the coming spring and so that would be the spring of two thousand and nineteen and at that time the agenda listing would indicate  when the agency intends to take the next step in the regulatory process which in this case would probably be a notice of proposed rule making and i think that's my opposing counsel indicated the regulatory agenda intent  supposed to cover items that agencies intend to act on within the following year but the agency you know i see you indicated there has been no other public announcement yet of the timeline for action but i also proposed two very different rules that would have complied with the statutory mandate now both of those worlds ultimately had significant problems that cause the agency to reconsider its approach and start a new but the fact that the agency has encountered these difficulties does not indicate that it is not that it's not been acting in good faith to comply with the statutory mandate on the agencies devoted tremendous time and resources to complying with the mandate and this is not a case where for all of these reasons this is not a case where intervention to to reorder the agency's priorities is appropriate and that is particularly so here because the constant consequence of dictating a timeline for complete the bioengineered food labeling stander and when was that passed by connor's that was passed by congress are roughly two years ago i guess i was july two thousand and sixteen and you have a first in first out our last in first out no that is absolutely not a principle that's recognized by the a p a or by any court courts have repeatedly recognize the agencies have the expertise and the billeted to determine which of the items on their for all of the rules that you know for all the statutory deadlines that u s d a as a whole is currently facing but these are the deadlines that that the fair trade program of the agricultural marketing service of the u s d a is currently facing at this time and so to dictate that the agency act within a certain time with respect to this will would prevent or diminish the billet of the rulemaking resources of that portion of u s d a to complete other will that was also reported by congress and in light of the statutory mandates i think it's entirely reasonable for the agency to exercise its judgment as to where to place the limited resources that has been given by congress  i think the the inappropriateness of relief in this case is reinforced by the application of the track factors in again i've already mentioned that competing agency priorities but just go to t he issue of reasonable ness the congress although congress originally enacted a two year deadline it made it very clear shortly there after that the agency was not to comply with that deadline when it enacted appropriations riders that effectively prohibited the agency from even working on the wall for over four years so i think that certainly has to be taken into account in discussing any expectation that congress had with regard to timing and in particular i think it would be very odd to think that after enacting these appropriations riders congress expected the courts to strictly  directing the agency to act on that on that very wall but what about the years that they don't and that the rider and that mean that you're supposed to work on i think that's right and in fact in those years the agency has been working on it in two thousand   the court should stay out of this tussle between the elected branches but i'm not sure where you get to the authority that reflects a congressional thinking well congress and add to dispatch toward deadline but i think it's an open question as to how congress expected course to enforce that deadline whether it be you have misread the open question sure because the congress would probably split in all fifty point one to forty nine nine point nine on the question depending on whether the action that wasn't being taken was good or bad in individuals view the question to me is whether the third branch  branch as any as any business wandering into this it's not even a stalemate i mean the appropriations committee did their thing for a while and congress can go use appropriations to go the other way you either you either do what we told you to do or or guess what happens to next year's budget i mean this is the way these things get fought out by people that are elected and i think both supreme court precedent and d c circuit precedent support the idea that is an extraordinary met remedy intrudes on the competence and advantage of the executive branch and it's really a remedy that should be reserved only for the most extraordinary cases did you give a reasoned decision on not taking any further action just on to a level focus on two of them yes absolutely well let me just first point out that the standard of review in that case is extremely deferential because it is it is an arbitrary and capricious claim but in this case it's both an informal rule making and a agency's failure to act as opposed to an action and this is a again it's a this is a proposed rule that has never had the force of law never been finalized and never had the force of law so yes i think the agency fully satisfied satisfied its obligation to explain its decision to with taking that well is it true that you made no mention of the congressional deadline taking no further action on the roll and that fully satisfy the arbitrary and capricious standard the question of whether the agency has complied with the statutory mandate whether there's been reasonable delay and whether this court should order relief is a separate question even petitioners concede that even if that that even if the agency has under reasonably delayed action it doesn't petitioners don't have any particular entitlement to that rule so whether or right requirement that the agency promulgated will and again the agency intends to comply with that mandate and is currently working on such rule the other mystery is to me allegedly at all times here since june eighteen of two double only the departments had the same position right that the act does not require careful to separate the issues i think that that the position that proof of harm to competition or likely harm to competition is not necessarily required and on cases that was the rule that was actually finalized as to a one point three that was the harm to competition rule and later withdrawn i guess i don't know if this agency has considered making bat the sole criteria but but it is a very difficult issue for the agency as and contested issue crafted and here the second incredibly incredibly capacious statue and there are just there are incredible number of decisions that the agency has to make now i mentioned earlier all of the public meetings and workshops and so forth and even after  that when the agency proposed a proposed rule in two thousand and ten it later realized that those criteria could have a variety of unintended consequences including potentially making it unlawful to use certain alternative marketing arrangements that are common in the industry so in two thousand and sixteen the agency had to completely revise its approach it went from criteria that were for example in two thousand and ten one criteria which whether contract terms were made available to all in two thousand and sixteen one of the criteria was whether there was discrimination based on race sex or religion so again a completely different regulatory approach so not only does the agency have a lot of work befor and and this case i don't think that it's either necessary or appropriate for this court to dictate a timeline for doing so if the court has no further questions we ask that the petition be denied thank you  with the withdrawal of the i have far takes into account much of what i would have to take into account going forward and also a point on agency recalcitrance again counsel points to all that the agency has done that all that they could point to is what happened prior to the withdrawal of the rules withdrawal of the rules the agency has done nothing now counsel suggests that it the agency supposedly will be putting the tool to be regulations on its spring twenty nineteen regulatory agenda likely suggesting it will put forward an m process and i just think that that's too long a quick note about agency priorities the d c circuit has been clear that that particular track factor has to be given less weight into circumstances wind it's  four and then the other circumstance where agency priorities are to be given less weight is when there is a showing of agency recalcitrance and that comes from the d c circuit case in the in record communications which is in our brief so i think that this court should be  at least a bit skeptical of the agency's attempts to prioritize and say that it cannot spend any resources on this congressional mandate that's been around for ten years most runners have further questions thank you