before you begin i don't know if you're here to hear that at the end of the argument if you just say we are we'd like to come down and and greet you so with that good morning perceived good morning i'm louis yellin from the department of justice i'm here today on behalf of the u s department of agriculture your honor the government's limited appeal comes down to a simple proposition the district court in joined us today from author aled the april order and the district court's june minute order reflects a permissible interpretation of the original injunction it's clarifying in that sense and so your appeal of the april order brings before us the issue that you want to bring before us that's exactly right another way to put the point is that the government notified it about the district court thinks we're just record thought that the june order simply interpret it or restated what was already in the april order but our cases on appeal ability seem to require us to independently review that determination and i don't see how we see how you buy the asset and she's now talking about a payment under one dollar not based on the two thousand and sixteen review but on on precisely the opposite not the decision to continue the payments the decision to get out of the contract that's right your honor but the june interpretation of the june explanation effectively became the final judgment of the district court and it and the court gives deference to a district court's interpretation gives a degree of deference but i still review still review the interpretation for reasonable us i think that's right your honor sorry i know that's right you matter that is encompassed a payment based on an authorization that had already been made u s d a informed the district court that it had already authorized a payment and the question was whether sam but that's a different issue right that's that's the question whether the february order covers payments that were authorized but not get made no that's right your honor but i'm not there i don't i don't see how that bear not so and reasonable for the district court to of interpret it it's june or as encompassing the terminations payment in part because there was a dispute between the parties the plaintiffs claim that all along they had intended their all along had that this had been implicit in its arguments and the district court accepted that in explanation that interpretation so it's not so one reasonable for the court to have interpreted  injunction and issued this minute a worker that this court would have to deal in that minute over so far out of bounds that it would not provide the court of elater stiction now we have merits arguments to be sure we think that the district made a significant error but in light of the pleadings that were before the district court at the time and in light of the plaintiff's arguments about the way in which the terminations payment was in compassed within its arguments the district  wasn't so far out of bounds as to create a separate decision at this that wouldn't be before this court so we have to as you've argued that the terminations remain valid even after the district court in terms and even after the met order and then the terms of the contract talk about a voluntary determination and you keep referring to the terminations clause but the very specific voluntary termination clause i mean looking at the language of it and so i'm not sure why after the district court's an injunction and then this would be classified as a voluntary determination oh your honor i think there is a simple answer to that question the board may could have reasonably unwisely decided not to terminate the contract it would still have been obliged to make payments under the contract but prohibited from doing so by the district court and that would have opened it up to contract claims now the district court i think it's important in this context to know did not invalidate the contract itself it just prohibited payments under the contract to meet performance but i still think that it's important that the district court did not pass on the validity of the contract and did not itself require the board to terminate the contract so there wasn't a compulsion to terminate the contract and even if the board decided that the consequence of the district court's decision is that it had to terminate the contract that doesn't mean that it didn't undertake the obligation under the contract to make a i'd like to address briefly about the two arguments that plaintiffs present as alternative bases for this court's permanents of the district court's decision carol one is the challenge to the district courts statute of no one doubts that immediately after the secretary authorized the contract that plaintiffs couldn't go could go to court and seek an immediate t r o to prevent the board from making that three million dollars payment consummation of agency decision and it did have legal consequences consequences the legal consequence was that the board had authorization to obligate producer assessment funds by entering into the contract and in the context of this case there was zero reason to doubt that the board was what's going to enter into this car ride and pages don't challenge that contention they don't say that you know also in the record that it seems that the contract was subject to some further negotiations changes whatever it is  which seems to suggest that there must have been some waiter offers ation by u s d a on the contrary your honor the administrative record contains one authorization enter into an enter into a contract get approval then make changes to the contract and not seek a new approval on the theory that the changes are minor agreements there is no evidence that the parties decided to cop to request u s d a authorisation for any further changes to the contract and so it's possible that they they were negotiating future changes if they were negotiating them and if they had decided to pursue those changes it would have been the board's obligation to go to u s d a to get further authorization it is permissible inference that they in light of the absence of any further us or authorization in the record it is a permissive the inference that in fact for whatever reason they decided not to pursue whatever terms they were contemplating and  me the one other piece of record evidence that bears on this is some minutes from a board meeting where they make reference to these ongoing negotiations i believe that's right i don't have the either the agreement or any of the subsequent protests payments did so for the lobbying purposes now they do claim and we don't decide we don't concede the accuracy of their characterization they do claim that the that there is evidence that the in the absence of any evidence that u s d a in making those authorisation decisions was intending to permit the funds to be used for lobbying purposes one must assume this court must assume that the agency was acting consistent with  can i just start you where i started government council which is on appeal ability yes you're so so your client is in a somewhat stronger position than the government to the extent you took up both the april order and the june order that's correct your honor and so you have a theory if if we think of the june order as a new injunction you have a good theory of appeal ability if we think of it as a permissible interpretation of the april order you have a good theory of appeal ability but what if we think of it as just kind of a nobody like have it has no more or less legal effect than if the judge had given a speech and said gee it's a really good thing that i stopped the terminations payment wouldn't the upshot of that b effect it's not an injunction it's not an injunction and it's not a reasonable clarification of the april order i may not be understanding you that april order with a final the april order means what it says it doesn't mean what the district court thaw and you appeal the april order and you can make you can make your broad argument that  none of these decisions were review of all because they were committed to even see discretion by law which is an argument that attacks the conclusion regarding the continuation payments but none of that lets you get into the terminations payment the issue about the terminations payment i think that the issue of spending actually preclude made that payment which they weren't able to do because it was enjoying by the minute order and we interpreted the minute order as modifying the injunction because it changed the legal relationship say we feel like the court need to engage in resolve these merits issues and indeed cannot because no plaintiff has article three standing which deprives the court of jurisdiction to injury theory of standing could move forward if he had facts to support that the board's allegedly unlawful over payments for an advertising campaign does not use to divert funds from other promotions because of that pork demand is lower and that's the price at which pork producers can sell their hogs is lower than it would be if the board were spending those funds on the gentleman promotions and other demand and hansen campaigns so it set out for components of this road map to standing one that the board doesn't use the trademark to that leads to a lower demand for pork three that in turn leads to a lower price which for producers can sell their hogs and for that there's other promotions that would therefore increase the price of pork when it w progress pinion sweeps and there's language in our prior pinion suggesting that general economic reasoning gets you actual reduced return on his work up port trak of investment which he is now banned and the summary judgment stage the declaration in support of his standing submitted summary judgment is completely silent on that point so what the key allegation in the complaint that the panel had to assume was true has now been withdrawn he's no longer claiming this reduced return on investment it's a little ambiguous on that point he doesn't have the line about return on investment but he makes reference to direct economic benefit of lawful promotions and in the context of this case given the history and what the district courts what we said on the prior appeal why wouldn't we charitably construe that to mean he suffered a pocketbook injury number one just the flat statement that he's been deprived of  economic benefit of lawful promotions is basically saying that he believes that a statutory violation occurred the statutory the statute requires lawful promotions this promotion was unlawful therefore i was deprived of what i'm entitle to under the statute but the panel of this court in two thousand and sixteen and hancock the urban outfitters interpret the supreme court's decision in spokeo which held that there must be a concrete and actual injury even in the context of a statutory violation so same same circumstances there is here in the in the hand coffee urban outfitters or case to plaintiffs went to retail establishments when they made their purchases they were a codes they claimed in violation of two d c consumer protection statutes so barely here it's you know it's undisputed that they were very beneficiaries of the statutes that they claimed were violated d they were consumers the statutes were meant to protect consumers and they claim that their rights were violated because the statute was supposed to provide them the benefit of protecting them from being asked for their zip codes and it was violated because they were asked for that information and the court found that they lacked article three standing because they couldn't allege any concrete injuries that flowed from result of that violation and the same thing here in this case mr dylan doesn't claim that he has he can't sell as many pigs or that the price for which he can sell his pigs has gone down or that his operations have been affected in any way that he's had to lay off employees that he's had to reduce operations that he can't meet his targets nothing we have no idea what the actual concrete economic injury and by asking and by arguing that it's the law of the case that mr dillon burke has standing on the basis of the twenty panel's two thousand and fifteen decision the plaintiffs are making the exact error that led to the supreme when i moved forward to the summary judgment stage the district court denied the motion on the ground that the eight circuit had already determined standing it's a good firm and the supreme court reversed holding that the plaintiffs hadn't met their burden of establishing standing at the s we would assume all of the subsidiary details but that's now the pleading rule is that you need to search for specific facts and the courts only make reasonable  inferences and that's the context in which the prior appeal was before us and we said good enough and that doesn't sound hugely different from a summary judgment posture where we draw all reasonable inferences in favor of the nonmoving party return on investment that he's not he's not even claiming any of those elements in the previous panels roadmap i don't know how he can say that he has an economic injury when he can't he can't claim if he start with the terminations provision and question about that tax because the way i read it i don't get past the st line before it says they need elected to terminate obligations to pave young paid balance in district court terminated all unpaid balance sheet terminated offer their payments there's nothing for them to elect to termin language of the of the of the as he did not harmony the contract she said that approvals of continuing payments based on the two this term nation clause refers to doesn't refer to determination of the agreement it doesn't refer to a termination payment it says you could issue a notice to terminate the unpaid back any obligation to pay the unpaid balance so she is limited and the obligation to pay the unpaid balance out if they want to we've just been notified they're going to make and we're going to try to make a new contract and if they can justify that that's a different issue than if they still have an obligation to pay the second issue is has to and now it's an obligation on the government twenty years later but we talked about it as it came up in the briefs one of the one of the key elements that that that protects the public funds and the major public contract is that each year year early payment right has to be separately authorized and the contract incorporates this on terminations mechanism with her so i sleep so that they can get out that's what the entered efficiency act and the guidelines operate to not allow the government to be obligated beyond a fiscal year until an appropriation funds are available appropriation of need and then a contractor analogy to the claims that you did make what you said was it was unlawful to correct and that's out of the case on timeline to screen right and then you said each subsequent authorization was unlawfully approved and what should have happened was that the authorization should have been made and the government should have terminated  you didn't say that the government would be violating the law by doing just that which was not authorizing the new payment and then terminating the contract invoked if the government has to get out of the contract for legal reasons the way you cast addresses the authorisation was improper and therefore they should have been booked termination they should have invoked the terminations procedure in two thousand and eighteen right and so and i agree with that that that framework that they should have but then the legal challenge is that it was arbitrary and capricious to extend it up and back it's set aside and if if the ability to extend a federal contract into another fiscal year is set aside the cut according to light sure of the argument you just made is that the term that hypothetical terminations clause was unlawful when and acted it was and you and you don't have that argument here the terminations process itself is independently of legal so i think there are two issues one is whether they now have the right to invoke this terminations clause and the other is into it but as a legal matter that is the contract so i don't i don't think that any point we challenge the terminations agreement i don't think there's a termination alive commission agreement now to end because in two thousand and sixteen what the court said aside the court set aside the two thousand and sixteen decision to extend and read up the contract terms of the stand and we had that determination it sensually legally what happens is if the contract terminates because she set a review yet so you need a specific agency action before the court and the only thing the court can do is set aside a specific agency action found to be  and we're not supposed to do anything else so this comes up the specific agency action is authorization of a payment that  consideration under section one dollar of the contract and the district court in a p a review says that is unlawful period full stop that doesn't tell you anything about the separate payment contemplated under section one point seven of the contract under different circumstances well so at the very end there i think a new question about whether or extension was set aside the extension was unlawful and set aside the contract and it does not get extended or we adopted so the contract terminated the contract terminated at the end of each fiscal year and that's required by  efficiency so we don't over obligate public public to the district corps explicitly contemplate that there might be future payments under this contract that could be justified on a better record for the government well that would that well my understanding of what what she wrote was or finding then what she was saying was that there would be if she was weren't dealt with in this deal so but what she essentially said was that injury would be resolved by my ruling on this now if if if they think that say that but she did and she did raise at the hearing and and our discussion with her throughout it was that that if she prohibits extending the contract further that would end she doesn't need to say i specifically terminate agreement because of the nature of the way federal spending was worked and procreate and the navigations what she's saying is if i don't love them to extend it beyond problems based on the facts of this one but but under the settlement agreement i think that they certainly can be but the guarantee that producers had and the concern that abusers had and what has what has been been been painfully frightening to producers throughout these check our programs were the issues that the supreme court dealt with in twenty million twelve thousand and five that is they're being compelled to pay into this system and only and the only way that this is that this program remains constitutional if it's controlled entirely by the government and not the funds aren't squandered or are transferred to a private entities to support their speech so we walk a very fine constitutional line so i think what the concern about suing settlement came about because producers had voted to end the pork checkoff in a referendum and the secretary said it will go on but we will promise you promise you that all dealings between the board and then p v c will be at arm's length and business like so if they want to do more contracts they at least have to make that  have to make that record that can be justified because that is the only that's the only protection that producers have and we talked about in the st case was that they at least have the right to effective reasonable uses of promotional uses of their whether or not whether or not this money is being given to a private entity to be trying to make determinations on its own about what messaging and what have how to use it and whether it's in so important for the contracts between not just the board and b b c but all of the check off boards and private trade associations to ensure that that this that we're not paying sixty million dollars for a trademark that's worth thirty when it's really in order to get money over to to a private entity if they are but they can you make something about you talking about what you see as misuse of funds you're not talking about whether that you have if the misuse of funds is essentially amounts to the government at the gate at abdicating or delegating or giving control over the messaging to a private entity reason that when you asked about whether they can renegotiate they can enter contracts with i mean if they think they can justify this with a proper valuation and get a new contract they can do that but it has to be at least it is on the side that you're with your time your time is up but could i just have just some or questions can i just ask about standing yeah yeah so usually when we moved from a motion to dismiss to a motion for largely just parrots the allegations in the complaint except that it seems to pull back on the key allegation about a pocketbook injury are unique programs it is different than say a procedural violation or a consumer protection statue or general protection statute that's designed to protect against harm where if a zip code is gotten wrong or results in a failure to provide an economic benefit and it's an economic benefit but he's compelled to pay for he's not getting the promotional sort of effective promotional services that were required and whatever downstream effects but you're  you can't say that the maladministration of a federal program is the injury that gives him standing and that's not the injury we recognize no it has to be that the mal administration of the federal program causes him for the classic article three injury which is when he sells the pigs he's not getting as much money as he otherwise it's it's if i'm paying into the social security system and not getting my check or paying for it privately if someone purchases radio ads and doesn't get the ads run if it was damages i have to i'd have to prove how much how much i've lost but poor article really not getting the product i paid for and being deprived of whatever downstream returns they were they might they would produce for me is enough to show at least  injury your client isn't entitled to any specific kind of advertising in the way that the social security beneficiaries of title to track well i think i i well no we're different because we're being intended beneficiaries of the program that's a statutory beneficiary argument which seems no good after spoke so the distinction i see is if if if i had said that the type of d an injury would be problematic but what he's alleging is i and the other producers who are being compelled to pay for this program are not getting the lawful and effective promotional services and so we have to  recognized downstream from that which is the impact on the big farmers bottom line sure and that but i want i think really gets at that point i think that when you get to thinking new york and other cases that said ok look we can apply we don't the market we credit the loss of basic basic economics that's not what changes between the pleading stage and the summary judgment phase of the laws of the basic law of economic  form like a competitive injury cases you know there's those it changes the facts to which we live and so we have to show that he was someone who wasn't title to the promotional benefits we didn't get and if he doesn't get that the effective promotions that were in tide that were that are if designed to enhance the marketplace then we can show that that by magic basic economics you don't get me as you don't get the opportunity for all right but the character of the government action in those cases is different it's the government exercising sovereign power to restructure markets and right if they designate a forest twice the size of new jersey as off limits for temper harvesting will allow basic economics to support a conclusion that that's going to harm timber farmers that seems different from what we have here where all the all the government is doing what you say they should have been doing is just adding their voice to the marketplace of speech and if we take your allegations we take your merits allegations astrue which i think we have to for standing purposes what you say they're actually doing is paying which for all we know is a more effective way of propping up pork prices well if again let me let me let me respond directly to a question and  talk about the implication that again when we're if we're measuring that they may be engaging in promotional lobbying that's more effective we only get you only a short the only thing that producers have in this case is that we're guaranteed to get a value for that we're guaranteed to get a trademark for sixty million dollars but what does or might be done after we're you know outside by a private entity is you know it may or may not ultimately be something that that they think it's helpful but but what producers are entitle to promised this trademark that if if they want to contract with p v c for lawful activity that that's fine but they can't just say in the guise of a trademark we're going to give money over to this organization and then they may users is at least the effort to receive an effective marketing program by pooling their advertisements together so i think it's more than just having we're being deprived of the government you know having speech we're being deprived of the government actively marketing our product i'd be happy if they give it to a private group so for them to decide what to do with all money and what back into your ear what your basic economic logic here is if the government were spending a lot more money advocating advertising for corps that would tend to push prices up prices up that's your that's your more similar to that good radio you know yeah we're what producers are are paying for and being promised is a very specific marketing and promotion service right and what they're and what they're getting instead is a bunch on your merits allegations is a bunch of lobbying so what is what is the basic economic logic that just lets us assume that the money spent for advertising would have been better for his bottom line the money allegedly unlawfully spent for lobbying i don't see that any of our cases support that  spend all the same money for advertising and the question for standing purposes is whether we can just assume as a matter of economic logic right that the lonnie's worse than the other contractual obligation that the government is bound to pay then isn't that a different type of lying on the street i think i don't think you can separate the two because the question especially with the  purposes of the statute arbitrary and capricious stand there and so what they have to do is it just say that this contract is a reasonable effort to further the purposes of the of the statutes of the contract ties into the statutory purpose and the standing issue relates to the producers vote the producers voted in this initial referendum to accept this to accept the the compel payments in exchange for a very strict framework of how the government would run the advertising so that there's definitely bro discretion within that framework but outside of that framework they can't be compelled to either support speech and inside of that framework are talking more about a business judgment type of rule if there is broad discretion but if this if the secretary is squandering the money rather than giving them the advertisements that are designed to to expend marketplace for their product that ends up being the intrigue and to that we can we can cause we cited in our brief about that the guidelines expect that the board explain why a particular contract was tros in and if not the lowest bid all of these are designed to protect the investment of the producers in into the fund that's designed to protect them thank you very much thank you to authorize the tradition of the pavement we deal with the arguments may there on the merits but i think they demonstrate that the district court's interpretation in the minute order of its prior injunction is not so baseless is not so frivolous that this or couldn't construe the minute or her as at least a reasonable if erroneous interpretation of the injunction i'd like to stress however and this is perhaps  important point that if the court determines that the minute order is not a reasonable interpretation of the injunction and the court determines that it must dismiss the government's appeal for lack of  jurisdiction it would be i think proper for the court to explain that the reason it was doing that is that the minute order because it was an unreasonable interpretation has no legal effect that is the minute order which prohibits a from authorizing the terminal action has no legal effect because the prior injunction only prohibited future payments based on the two thousand and sixteen agreement which would terminations obligation that's just not a reasonable interpretation of the contract or what the district court did or what the district court thought it did the u s d a authorized the board to undertake a contract that contract has obligations that apply each year u s d a to be sure has to authorize painted but if it didn't authorize payment that would permit the board to invoke the terminations provision there's just no basis for saying that there is a knowledge we would agree with with the government that this court should explain that because there is an active and actual case or controversy at this point about what the what the meaning of the minute order is and it has placed u in the position of having breached the breach the contract so an actual case or controversy has has flown sorry has has come from not so it can't be the case that this minute order could escape judicial review  its entirety the nd point i would like to make is as to as to standing counsel for plaintiff is making this argument that producers are entitled to effective corporation but there no evidence that either the prior the other white meat promotion or what it was replaced with the pork be inspired promotion were ineffective and so  has a current campaign which continues to use the poor can design logo so the only way to have the current campaign would be to continue to have use of them are the whole promise of the merits ruling was they bargain bargain for a new assessment whether it made economic sense to continue with these payments and the government made out assessment or tried to value the trademarks and record thought that the government the government's assessment was arbitrary the district court disagreed with the way the government's expert went about evaluating that so i don't think you can challenge the proposition that there was some kind of maladministration here i think the question about  the methodology used by by the expert is a separate question from whether the poor producers are receiving poor promotions if it's under it is not as if when the poor board stopped using the port the other white meat as their primary campaign they continued to take check off money and did nothing with it they have this this other campaign so there was no separate  evaluation of what the four individual mark for