[00:00:01] Speaker 01:
Case number 16-5329, spread for the city appellant versus United States Department of Agriculture at L. Mr. Gillian for the appellant, Ms.

[00:00:10] Speaker 01:
Lilly for the appellees.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 04:
Good morning, Your Honors.

[00:00:14] Speaker 04:
May it please the Court?

[00:00:15] Speaker 04:
Section 2036 takes away USDA's discretion over spending on the Emergency Food Assistance Program.

[00:00:21] Speaker 04:
Spending on that program is mandatory, and the amounts of spending on that program are mandatory as well.

[00:00:28] Speaker 04:
USDA must allocate a portion of the annual SNAP or food stamp appropriation and spend it on TPAP.

[00:00:34] Speaker 04:
In 2014, Congress amended this section to increase the fraction that is spent on TFAP.

[00:00:40] Speaker 04:
The dispute in this case is about how much was that increase.

[00:00:44] Speaker 04:
The structure, the text, and the purpose of the statute all show that the increase was at least $250 million more than USDA has been spending on it.

[00:00:53] Speaker 04:
I'd like to start with a structural point, because I think that's where the government's brief seems to disagree with us the most.

[00:00:59] Speaker 04:
Subparagraphs A, B, C, D, and E – and if your honors want to follow along, it's on pages three and four of the blue brief where we show the sort of before and after after the amendment.

[00:01:10] Speaker 04:
Subparagraphs A, B, C, D, and E – these five subparagraphs – are all independent spending duties.

[00:01:14] Speaker 04:
They all share the same opening clause.

[00:01:16] Speaker 04:
USDA – excuse me – the Secretary shall carry out with the following numbers.

[00:01:22] Speaker 04:
Some of these subparagraphs use numerals and some of them use formulas with words.

[00:01:28] Speaker 04:
Some of them cover a single fiscal year and other of them cover many fiscal years, but the point remains that they are all spending instructions.

[00:01:36] Speaker 04:
Now, for four of these fiscal years, 15, 16, 17, and 18, they are repeated in C and D. But that doesn't change how the subparagraphs function.

[00:01:46] Speaker 04:
That's the structural point.

[00:01:48] Speaker 04:
D is clearly a spending instruction.

[00:01:50] Speaker 04:
I think all parties in the district court agree with that.

[00:01:52] Speaker 04:
The extra amount in

[00:01:55] Speaker 04:
subparagraphs, you know, I through IV is listed only in D. So if that amount is to be spent, D must require it.

[00:02:05] Speaker 04:
And C is also a spending instruction.

[00:02:07] Speaker 04:
It is a spending instruction for nine fiscal years.

[00:02:11] Speaker 04:
Clearly was that before the amendment in 2014, as we show, C originally went from 2010 through 2012, and that's where the statute stopped.

[00:02:21] Speaker 04:
What Congress did in the amendment is that it extended the cutoff date.

[00:02:24] Speaker 04:
It erased 2012 and extended that to 2018.

[00:02:29] Speaker 04:
That simple change of the cutoff date didn't change the function of subparagraph C. Subparagraph C still requires an expenditure of funds.

[00:02:39] Speaker 04:
Now the government's theory in this case is that C somehow turns off in fiscal years 15 through 18.

[00:02:46] Speaker 04:
But there's nothing I see in the text of C or D that actually turns it off.

[00:02:51] Speaker 04:
In fact, what the government's theory is, is ultimately contrary to Congress's amendment in 2014 that changed the year 2012 to 2018.

[00:03:00] Speaker 04:
The government wants to limit C as if it stops in 2014.

[00:03:03] Speaker 02:
Well, do we have to read it out or can we just, can you read it quite naturally as simply having a specific

[00:03:14] Speaker 02:
Addition identifying additions for the years 2015 through 2018.

[00:03:18] Speaker 02:
So we still have the sea base amount and then we say

[00:03:22] Speaker 02:
For these years, we're going to add this amount each year.

[00:03:25] Speaker 04:
That, I think, is the textual point of disagreement.

[00:03:27] Speaker 04:
And again, what amount?

[00:03:29] Speaker 04:
Once you agree with me that C and D are both spending instructions, the question is, what amount does C require and what amount does D require?

[00:03:36] Speaker 04:
And I think your question, Judge Miller, is, what amount does D require?

[00:03:40] Speaker 04:
Does D require just $50 million, as Judge Leon held below, or does it require $327 million?

[00:03:46] Speaker 04:
And to answer that, we think that's a plain textual interpretation.

[00:03:50] Speaker 04:
D says not, in addition to the amount of C, spend 50.

[00:03:55] Speaker 04:
It says spend the sum obtained by adding 250 million and 50 million.

[00:04:01] Speaker 04:
In addition to, and the sum obtained by adding are not synonymous.

[00:04:05] Speaker 04:
And indeed, Judge Leon's theory that the entire introductory clause of D

[00:04:09] Speaker 04:
the sum obtained by adding the total dollar amount, renders that basically superfluous.

[00:04:14] Speaker 04:
Because remember, Congress amended C and D simultaneously.

[00:04:17] Speaker 04:
Congress didn't need to include a reminder at the beginning of D that says, hey, by the way, the amount we just told you under C to spend, that 250, you still got to spend that and then an additional 50 million.

[00:04:28] Speaker 01:
So in your interpretation, are you reading D to mean that for each

[00:04:36] Speaker 01:
of fiscal years 2015 through 18, in addition to the amount in C.

[00:04:45] Speaker 01:
The sum obtained by adding the total amount specified in C, namely 277 plus 50, is the amount for 2015.

[00:04:58] Speaker 04:
I think that gets to the same result, Your Honor, but the extra words in addition to aren't necessary to make that point.

[00:05:05] Speaker 01:
Well, but what I'm trying to get at, you're making a plain text argument, aren't you?

[00:05:11] Speaker 04:
Yes, absolutely.

[00:05:13] Speaker 01:
And the government's interpretation is essentially that language that I added in my question means that you just take C as 277, and you add the 50 million in D. And that's the sum referred to in D. So again, this is another point that Judge Leon made below.

[00:05:35] Speaker 04:
And I think that he's confusing two different sums on this interpretation, the sum of

[00:05:42] Speaker 04:
following and complying with C and the sum of following and complying with D isn't the sum that D itself refers to.

[00:05:49] Speaker 04:
Because this gets back to that point that I started with and why it's so fundamental to my argument to show that each of these subparagraphs is an independent spending duty that is discharged only by complying with the amount of money that is required under that specific subparagraph.

[00:06:05] Speaker 04:
There isn't a need to say in addition to because D itself is an independent spending duty.

[00:06:11] Speaker 04:
When you do the math, the sum obtained by adding the total dollar amount mentioned in C plus 50, you get 327 million.

[00:06:19] Speaker 02:
Back in A1, Congress envisions A, that's an A singular dollar amount for each year.

[00:06:27] Speaker 02:
And your reading would have

[00:06:31] Speaker 02:
We contradict that singular reference by having essentially two numbers for the years 2015 through 2018.

[00:06:38] Speaker 02:
And that would be contrary to the rest of the structure, where it's this year one number, this year one number, this year one number.

[00:06:45] Speaker 04:
Well, our view is that the number is 604, so that is a dollar amount.

[00:06:49] Speaker 04:
You just get there through

[00:06:51] Speaker 02:
No, but your position is that there's two separate authorized amounts, the C amount and the D amount.

[00:06:56] Speaker 02:
That's what you just said.

[00:06:57] Speaker 02:
They are both distinct spending authorizations.

[00:07:00] Speaker 02:
And my point is that structurally, Congress seemed to think that there was a single amount through the provisions below.

[00:07:08] Speaker 02:
So why isn't the better way to read D as simply a more specific

[00:07:14] Speaker 02:
Well, I think direction as to those three, sort of the subset, we have the general and then we have the subset.

[00:07:19] Speaker 02:
And as to those three, you're going to get this extra kicker.

[00:07:23] Speaker 04:
A couple of responses to your question, Judge Miller.

[00:07:25] Speaker 04:
I want to get to that specific and general point in a moment as well, because I think that's an important one to address.

[00:07:30] Speaker 04:
You're not with me on the idea that the total dollar amount is the 604 million that C and D require.

[00:07:36] Speaker 04:
I understand that point.

[00:07:37] Speaker 04:
But that does essentially render all of the introductory phrase of D superfluous.

[00:07:43] Speaker 04:
Indeed, on this theory, for each of the fiscal years, it would just say for fiscal year 50, for fiscal year 1640.

[00:07:51] Speaker 04:
There's no reason to make a cross-reference like that unless Congress was, unless the, let me step back.

[00:07:59] Speaker 04:
The reference to the sum obtained by adding is what the statute requires.

[00:08:04] Speaker 04:
We're sort of dividing congressional intent and coming up with a rational reason why Congress did this.

[00:08:10] Speaker 04:
Because as long as it's rational, we do what the text says.

[00:08:13] Speaker 04:
So we're surmising that Congress wanted the expenditure of extra funds and did so by saying that for 15 through 18, there is an additional sum obtained by adding the 250 and the 50.

[00:08:27] Speaker 04:
So they add together.

[00:08:28] Speaker 04:
Now, Your Honor mentioned a point a moment ago that there's maybe a general provision in C and a specific provision in D. The canon of the specific governing the general doesn't come into play in this case.

[00:08:40] Speaker 04:
We resort to that when there's a conflict between two provisions.

[00:08:44] Speaker 04:
And when there's simply a little bit of overlap, like there is here, where there's four fiscal years that are repeated in C and four fiscal years that are repeated in D, then the first question is, is there a conflict?

[00:08:55] Speaker 04:
Is it irreconcilable?

[00:08:56] Speaker 04:
Is it impossible for USDA to comply both with its duty under C and with its duty under D?

[00:09:01] Speaker 04:
And the answer is no, because it could comply with both duties.

[00:09:04] Speaker 02:
I don't read the Supreme Court decision in RADLEX as requiring impossibility, that it's not like a

[00:09:10] Speaker 04:
I think irreconcilability would be how I understand it.

[00:09:14] Speaker 04:
In other words, and I was thinking of Connecticut National Bank versus Germain where the case about the appellate jurisdiction statutes where the Supreme Court said, yeah, there's a little bit of overlap.

[00:09:23] Speaker 04:
There's a lot of ways to get in a federal court.

[00:09:25] Speaker 04:
But the point is we're not going to ignore the plain meaning of words in C or D in this context or the appellate jurisdiction statutes as it was in Germain unless there's a conflict, unless we can divine and see that Congress had something so specific in mind that it meant to sort

[00:09:38] Speaker 02:
So this is a little bit, I mean this is, we're dealing here with, we as a court are trying to figure out how much money Congress wanted spent.

[00:09:48] Speaker 02:
And the Constitution is quite clear that Congress decides what money to spend.

[00:09:54] Speaker 02:
And so if we were to just find

[00:09:58] Speaker 02:
You know, sort of 50-50 ambiguity here.

[00:10:01] Speaker 02:
There's one way to read it, quick reading, the other one, you have one, you have good arguments on both sides.

[00:10:09] Speaker 02:
Is there any sort of background principle in this specific context of spending authorizations that a court should apply?

[00:10:18] Speaker 04:
Uh, no, Your Honor.

[00:10:19] Speaker 04:
I think when there's, when the court in a situation like this with a mandatory duty under a writ of mandamus action like this finds ambiguity, it's still up to the court to decide what the correct result is, what the text of the law requires.

[00:10:31] Speaker 04:
But I want to resist the point that the mere overlap of four fiscal years amounts to ambiguity.

[00:10:36] Speaker 04:
It may be a little bit peculiar that Congress went about this way, but as the Supreme Court has said in other cases, like Lamey versus U.S.

[00:10:43] Speaker 04:
trustee, the fact that Congress chooses an odd way to accomplish its result doesn't make it ambiguous.

[00:10:48] Speaker 04:
You could still follow the plain meaning of C. You could still follow the plain meaning of D. And when you put those together in sort of a Venn diagram... But if one thought it were ambiguous, if one thought it were unclear whether Congress was

[00:11:01] Speaker 02:
simply clunky or use more words than necessary.

[00:11:05] Speaker 02:
But the meaning still is, look, 2010 to 2018, here's our general framework.

[00:11:10] Speaker 02:
And for these three years, we want you to add a kicker onto that number we just mentioned.

[00:11:15] Speaker 04:
I would direct the court, then, to the purpose of the, sort of the evident purpose of Section 2014.

[00:11:19] Speaker 02:
Well, I want to, before we get to that, if I thought there were ambiguity.

[00:11:23] Speaker 02:
Right, semantic ambiguity.

[00:11:24] Speaker 02:
I assume you would assume there's no difference to the governor.

[00:11:26] Speaker 02:
There's no difference to the government in this case.

[00:11:28] Speaker 02:
And so shouldn't courts, as a matter

[00:11:31] Speaker 02:
almost a separation of powers, err against a higher spending amount, err in favor of assuming Congress meant to spend less.

[00:11:41] Speaker 02:
It's troublesome for us to say, well, we're going to assume it was more rather than less.

[00:11:45] Speaker 04:
The separation of powers of concern, I believe, goes to the appropriations, the power of the purse, not to the duty to spend.

[00:11:50] Speaker 04:
Those are two different things.

[00:11:51] Speaker 04:
This Court can declare what the law is, and Congress can still retain control over the power of the purse and its ability to appropriate funds.

[00:11:58] Speaker 04:
So in this instance, I mean, I think the separation of powers of concern you're articulating is a valid one, but it deals with the sort of subsequent appropriation, not with the administrators or the USDA's actual duty.

[00:12:12] Speaker 04:
What does the law require?

[00:12:13] Speaker 04:
Now, if you think there is semantic ambiguity, Judge Millett, then I would point the court to the purpose, the evident purpose of the amendment in 2014.

[00:12:22] Speaker 04:
which was to increase spending here in a way that reasonably compensated for the amount of money that was being taken away from food stamps.

[00:12:32] Speaker 04:
And in that kind of a context, I think it makes a little bit more sense that, and we explained this all in the brief, I won't go through the whole legislative process again for the court, but it makes a little bit more sense, and it's certainly rational to believe that Congress dedicated an extra $1 billion

[00:12:46] Speaker 02:
Why isn't, because under your reading, under the government's reading, you have just sort of this steady increase in payments tied to inflation, and then even under your purpose theory, you have the extra kicker for those years that could address your purpose concerns.

[00:13:03] Speaker 02:
But under your provision, we have this sort of, and then we have this huge bump.

[00:13:06] Speaker 04:
Well, we end up in the exact same spot at the end.

[00:13:08] Speaker 02:
And then plummet back down.

[00:13:10] Speaker 04:
I concur.

[00:13:11] Speaker 04:
We do end up in the exact same spot.

[00:13:13] Speaker 04:
In 2019, the amount is going to be approximately, you know, 327, whatever inflation is in the next couple years.

[00:13:20] Speaker 04:
You know, our theory, as we explained, is that, you know, legislators act in a fairly self-interested way here, and one way to get around CBO scoring is to pack in massive spending increases in the first four years of a bill, because in the last year,

[00:13:34] Speaker 04:
Congress, excuse me, the CBO scores long-term deficit spending based on the amount that's in the end.

[00:13:41] Speaker 04:
So, you know, the important point about the drop-off, Your Honor, is that Judge Leon's theory gets us to the most radical drop-off of only $15 million spent

[00:13:50] Speaker 04:
on TFAP in 2019.

[00:13:53] Speaker 04:
I think the government was sort of responding to the almost absurdity of that by revising its argument on appeal here to try to come up with a theory that essentially says C does no work.

[00:14:02] Speaker 04:
C no longer is a spending instruction after 2015.

[00:14:07] Speaker 04:
And as I stated a few moments ago, I think that it is directly contrary to Congress's action in 2014 to amend

[00:14:14] Speaker 04:
subparagraph C and actually extend that cutoff date.

[00:14:18] Speaker 04:
The government hasn't grappled with that in its explanation of the case.

[00:14:21] Speaker 04:
And I've used a substantial portion of my rebuttal time, but if the court has any questions, I'd like to reserve some for rebuttal.

[00:14:27] Speaker 01:
All right, thank you.

[00:14:29] Speaker 04:
Thank you.

[00:14:38] Speaker 03:
Good morning.

[00:14:41] Speaker 03:
Your Honor, as we explained in our brief, the USDA's interpretation of the amounts authorized for the TPAC program is straightforward.

[00:14:50] Speaker 03:
For fiscal years 2010 through 2018, subparagraph C sets out an inflation adjustment of a baseline amount, that $250 million baseline amount that's adjusted for inflation each year, excuse me.

[00:15:03] Speaker 03:
And subparagraph D,

[00:15:05] Speaker 03:
sets out a kicker, to use your words, Judge Mallette, for each year, a modest increase of 50, 40, 20, and 15 million.

[00:15:15] Speaker 02:
Why wouldn't they just delete all that language in D and as part of C just go add for fiscal year 2050?

[00:15:21] Speaker 02:
I mean, it seems to me that they have a fair point that we're reading out the fact that there was a separate D section put here and that it has its own language, right?

[00:15:32] Speaker 02:
You're reading

[00:15:33] Speaker 03:
doesn't have any need for D. You would just take the four little romanettes and stick them under C. Well, Your Honor, that's what Congress did in some paragraph D. It said, sum these, add the two numbers.

[00:15:45] Speaker 03:
And so it did so in the separate subsection of paragraph B, because C was the inflation adjustment provision.

[00:15:51] Speaker 03:
And it made sense to do so for the subset of years to which the kickers applied.

[00:15:55] Speaker 02:
Except all the other A, B, C, D, and E's are independent spending authorizations.

[00:16:02] Speaker 02:
And so now you're saying D, even though it's set up like an independent spending authorization, in fact, is not, it's just an addition that could have been slotted under C. Yes, as is indicated by the overlap between C and D for those four years.

[00:16:18] Speaker 03:
The spending instructions for those four years are contained in two sub-paragraphs.

[00:16:25] Speaker 03:
And Congress did that because it wanted to preserve both the inflation adjustment

[00:16:29] Speaker 03:
which had been set out in subparagraph C, and then to add the kicker as part of the compromise.

[00:16:35] Speaker 00:
Do you know or have any idea why it's a decreasing amount from one fiscal year 2015 to 2018?

[00:16:48] Speaker 03:
Your Honor, I can't explain all of the congressional compromises involved in the Farm Bill, but we do know from the legislative history that there was significant back and forth about how much to cut SNAP, and therefore how much to increase TFAP to accommodate it.

[00:17:09] Speaker 03:
And so the compromise in both the House and Senate bills was this sort of sliding scale.

[00:17:15] Speaker 00:
Just let them down gently, is that the idea?

[00:17:19] Speaker 00:
I mean, why add 50 million in 2015?

[00:17:24] Speaker 03:
I think that that is to, that Congress intended that to accommodate some of the cuts to the food stamp program.

[00:17:33] Speaker 03:
The theory was that there would be increasing need for the emergency food assistance that the recipients of these TFAP funds

[00:17:43] Speaker 03:
would receive, and so that would offset slightly some of the cuts just now.

[00:17:52] Speaker 00:
I find it difficult to make any sense of the idea that Congress would add $50 million when, according to the plaintiff's theory, they added $277 million.

[00:18:06] Speaker 00:
to the spending as in the years prior to 2015.

[00:18:15] Speaker 03:
In the years prior to 2015, I believe it was sort of a constant $250 million adjusted for inflation.

[00:18:24] Speaker 00:
Which is $277 million, right?

[00:18:25] Speaker 03:
Yes, it was in 2015.

[00:18:28] Speaker 03:
Of course, that amount keeps getting adjusted.

[00:18:31] Speaker 00:
What I was trying to say is that I don't see the sense of

[00:18:36] Speaker 00:
the plaintiffs reading with respect to the 50, the 40, the 20, the 15, when Congress, according to the plaintiffs, has already added 277 million.

[00:18:51] Speaker 03:
I think Your Honor is suggesting that it would be odd to use a defined term of 50 when in fact Congress intended to double the amount and the agency, Congress, the appropriators, CBO agree with you that that is the incorrect reading of the statute, that the statute authorizes these modest increases over the baseline amount for years, fiscal years 2015 through 2018 and that

[00:19:22] Speaker 03:
No one else has been confused.

[00:19:23] Speaker 03:
The legislative history is clear, the text is clear, the subsequent appropriators understood what that meant.

[00:19:32] Speaker 03:
CDO and scoring this authorization understood what that meant.

[00:19:36] Speaker 01:
Of course the reply brief has a nice response to your reliance on all those authorities, doesn't it?

[00:19:44] Speaker 01:
I mean, part of the problem is trying to understand exactly what's happening here.

[00:19:51] Speaker 01:
And you heard counsel at the end of his argument this morning give us a theory regarding the Congressional Budget Office.

[00:20:01] Speaker 01:
It sort of makes sense in terms of concerns about the debt limit.

[00:20:09] Speaker 01:
What I'm having trouble with is I simply don't know enough about the farm program and all the other monies that are coming in.

[00:20:18] Speaker 01:
So that what Judge Randolph is focusing on seems odd, but maybe it isn't odd if we looked at the total picture.

[00:20:27] Speaker 01:
And neither brief addresses that.

[00:20:30] Speaker 01:
So we're just looking at this one amendment in 2014, trying to come up with the language.

[00:20:39] Speaker 01:
that would support this additional language in D. And it's just odd that it's there if it only has the meaning you suggest.

[00:20:56] Speaker 03:
Your Honor, it is clear

[00:21:02] Speaker 03:
on the face of the statute, and in the context of Congress's historical authorization for the TPAT program, its subsequent appropriations, that it didn't intend to, in language that one might consider odd, to double, to increase funding for just this four years to unprecedented levels.

[00:21:26] Speaker 01:
This is what Congress said later, right?

[00:21:29] Speaker 03:
Yes, Your Honor.

[00:21:29] Speaker 01:
All right, but that's basically not relevant, is it?

[00:21:33] Speaker 01:
Well, it is, Your Honor, when Congress is charged with- Suppose Congress was very generous of heart in 2014, and then all of a sudden woke up and understood that there's some implications here we didn't understand.

[00:21:46] Speaker 03:
Your Honor, if Congress was generous of heart to unprecedented historic levels, we would have expected to find some indication of it in the legislative history.

[00:21:58] Speaker 01:
You see, your premises

[00:22:02] Speaker 01:
based on a historical fact which neither brief supports.

[00:22:07] Speaker 01:
That this is a unique situation, et cetera.

[00:22:09] Speaker 01:
What we know from the briefs is there was a compromise between the House and Senate.

[00:22:16] Speaker 01:
And these numbers don't tell us anything about why they chose these numbers.

[00:22:22] Speaker 01:
So both sides saying the language is plain doesn't really help when, arguably,

[00:22:29] Speaker 01:
there are two possible and reasonable interpretations of this language.

[00:22:37] Speaker 03:
We think there's only one, Your Honor, and the conference committee report agrees with us.

[00:22:41] Speaker 01:
Well, the problem I have with the government's position, and I thought it's interesting that the district court and the government aren't in sync here.

[00:22:49] Speaker 01:
But it's the overlap of the fiscal years.

[00:22:55] Speaker 01:
Yes, Your Honor.

[00:22:59] Speaker 01:
And the government's interpretation seems to ignore that.

[00:23:03] Speaker 01:
Seems to ignore that the... Well, just treating what Judge Millett was addressing with you, that D, if it's, as the government says, it would just say D, and for fiscal year 2015, add 50 million, or an additional 50 million, but it's not all this other language.

[00:23:21] Speaker 03:
Well, subsection C,

[00:23:24] Speaker 03:
adjusts a baseline amount for inflation, D, does not adjust those amounts for inflation.

[00:23:30] Speaker 03:
That is one potential reason that they're set out.

[00:23:32] Speaker 01:
I know, because the cost reference is C and says that's already been done, so we don't need to do it twice.

[00:23:36] Speaker 01:
Right.

[00:23:39] Speaker 03:
And so it is natural for Congress where it wants to maintain that inflation adjustment for the eight-year period, but then for a subset to increase it slightly

[00:23:52] Speaker 03:
to do so with these overlapping provisions that set out a fixed schedule of increases.

[00:23:59] Speaker 03:
There's nothing unnatural about doing it.

[00:24:04] Speaker 02:
That's just not what the statute says.

[00:24:06] Speaker 02:
I mean, your theory, the statutory language, your reading would have the statute have A, B, C, and then Romanettes 1, 2, 3, 4.

[00:24:15] Speaker 02:
There's just no point at all to the D clause that comes before the Romanettes, correct?

[00:24:23] Speaker 02:
That does no work at all under your reading.

[00:24:25] Speaker 02:
We get 277 million from C, and then we add in 50 from Romanette I. That's all.

[00:24:33] Speaker 02:
There's no function.

[00:24:34] Speaker 02:
I mean, we aren't supposed to let any word be surplusage, and here we're going to have, I'm not counting that quickly, but 20 words or so being surplusage.

[00:24:43] Speaker 03:
No, Your Honor.

[00:24:44] Speaker 03:
In fact, the introductory clause of subparagraph D does the work of requiring the agency to add the inflation.

[00:24:53] Speaker 02:
That's already in the Romanettes for fiscal year 2015.

[00:24:55] Speaker 02:
That's already there.

[00:24:56] Speaker 02:
You don't need it.

[00:24:58] Speaker 03:
You don't need it in D. In D, Romanette 1, there's no language that refers to addition.

[00:25:04] Speaker 03:
And so that work is done by the introductory sentence to subparagraph D. But then you just need one word, add, for fiscal year, add.

[00:25:15] Speaker 02:
And you don't need all these other words.

[00:25:17] Speaker 02:
I mean, if you just read C by itself, you'd go, all right, 277 million.

[00:25:22] Speaker 02:
And then if you read D, if the years were different, say they were 2019 through something, you would go, OK, that's a separate amount.

[00:25:31] Speaker 02:
That's another spending authorization.

[00:25:34] Speaker 02:
Spend C, and D is an independent spending authorization.

[00:25:38] Speaker 03:
But not where the two are overlapping.

[00:25:42] Speaker 03:
in the words of a closing counsel, where you have a subsection C, which refers to eight fiscal years of spending, and subsection D refers to a subset of those, and then refers back.

[00:25:55] Speaker 03:
It says, don't stop there with the inflation-adjusted amount.

[00:25:59] Speaker 03:
Add to it.

[00:26:00] Speaker 03:
And don't adjust those amounts in the schedule.

[00:26:03] Speaker 02:
If Congress wanted to write the statute the way plaintiffs propose, if they wanted to,

[00:26:12] Speaker 02:
do it their way.

[00:26:12] Speaker 02:
Isn't this exactly how they'd say it?

[00:26:14] Speaker 03:
No, Your Honor.

[00:26:17] Speaker 03:
They would

[00:26:19] Speaker 03:
If Congress wanted to double the amount for each of the fiscal years, it would, for instance, one of the ways it would do it, it would make clear that it wanted to double the inflation adjusted baseline amount and add a fixed amount.

[00:26:35] Speaker 02:
But it doesn't want to do that for 2010 through 2018.

[00:26:38] Speaker 02:
It only wants to do that for 2015 through 2018.

[00:26:41] Speaker 02:
So it's still going to have C just as it is.

[00:26:44] Speaker 02:
And then it's going to say for 2015 through 2018, we want to do something special.

[00:26:48] Speaker 02:
We want to add more.

[00:26:50] Speaker 02:
That's what the statute does.

[00:26:51] Speaker 02:
Everyone agrees that.

[00:26:52] Speaker 02:
And the question is how much more it's adding in.

[00:26:54] Speaker 02:
And my concern is textually, there's a lot of language there.

[00:27:01] Speaker 02:
We just blow right past to have your view of how much we're adding in.

[00:27:05] Speaker 03:
Your Honor, we don't blow past anything in subsection D. Subsection D refers back to the amount and asks the agency

[00:27:14] Speaker 03:
to add to that amount this fixed schedule of increases.

[00:27:23] Speaker 02:
D, pay the sum obtained by adding the total dollar amount of commodities and

[00:27:31] Speaker 02:
this number here.

[00:27:32] Speaker 02:
So if you read D, that gets you to 277 plus 50, correct?

[00:27:39] Speaker 02:
So if D says pay 277 plus 50 for this year, let's just assume you have to go down 40 and whatever, but it says do that for 2015, 2016, 2017, 2018.

[00:27:51] Speaker 02:
Pay that.

[00:27:52] Speaker 02:
That's an independently operating provision.

[00:27:57] Speaker 02:
But now you're saying C doesn't have any role for 20?

[00:28:00] Speaker 03:
Well, if you first had D, which I think is what you're suggesting that that's what Congress would do, then you'd have no baseline.

[00:28:09] Speaker 03:
You would have no inflation adjusted.

[00:28:11] Speaker 03:
So it is necessary to have both C and D to determine the amounts available for fiscal year 2015 through 2018.

[00:28:23] Speaker 03:
adjust the baseline and then D explains that you add to that baseline according to the schedule set out.

[00:28:30] Speaker 03:
This is the reading that is consistent with contemporaneous legislative history, with the subsequent appropriations, the CDO score.

[00:28:40] Speaker 01:
See, I could understand all that if there was something to indicate to me that Congress understood

[00:28:49] Speaker 01:
that the after effects of the 2008 recession were hitting low income people very hard.

[00:28:59] Speaker 01:
And therefore, in the 2014 amendment, having cut back on food stamps, Congress says we have to double the amount

[00:29:10] Speaker 01:
in this emergency food care, and we're going to taper off as time goes by.

[00:29:16] Speaker 01:
But for this first year, given this economic problem that's being experienced throughout the country, we need a big push the first year.

[00:29:27] Speaker 01:
And that's sort of what they wrote.

[00:29:30] Speaker 01:
And then they said, well,

[00:29:31] Speaker 01:
Now that we sort of filled in this gap and the economy is recovering, we can taper off as the periods go forward.

[00:29:41] Speaker 03:
Your Honor, if I may add one significant piece of context.

[00:29:45] Speaker 03:
As explained in our brief, the way that the SNAP, the food stamp program, and the TFAP program are appropriated, it's part of a lump sum.

[00:29:55] Speaker 03:
So to do that, to do what plaintiffs are suggesting, it would require the department to take more money out of the SNAP program and allocate it to the TFAP program to double it.

[00:30:08] Speaker 01:
You understand, as I understand, that Congress

[00:30:11] Speaker 01:
appropriates a total dollar figure.

[00:30:18] Speaker 01:
But that appropriation is based on the submissions by the Office of Planning and Budget, OMB, indicating what those funds are to be used for.

[00:30:34] Speaker 01:
So it's not as though Congress is just saying to the department, here's a lump sum.

[00:30:39] Speaker 01:
It expects Congress to use the lump sum, it expects the agency to use the lump sum in the manner that the president has proposed through the submission prepared by OMB.

[00:30:50] Speaker 01:
I don't know where that gets you in this case.

[00:30:56] Speaker 01:
I mean, what I've posited as some explanation as to what Congress might be doing here with this extra language in D

[00:31:04] Speaker 01:
makes some sense to me.

[00:31:07] Speaker 01:
But the language itself, I don't know what you're doing with the seed that's talking about years 2010 through 2018.

[00:31:18] Speaker 01:
And then saying, but for this three year fiscal period, we're going to double off basically.

[00:31:32] Speaker 01:
You're sort of ignoring that is what I'm getting at.

[00:31:34] Speaker 01:
I understand your point, and I thought Judge Millett's question to counsel about, is there some principle that we should apply here where it's an appropriation and authorization, and therefore the assumption that Congress doesn't want to build the debt and violate debt ceilings, we would say, well, it must have meant the lower amount.

[00:31:55] Speaker 01:
But no brief gives us anything to go on.

[00:32:00] Speaker 01:
That's what's troubling to me about this whole case.

[00:32:03] Speaker 01:
I mean, I don't know who's right in one sense.

[00:32:06] Speaker 01:
We can come up with a legal analysis for going one way or another, and we'll talk it out among ourselves.

[00:32:15] Speaker 01:
But the groups sort of aren't coming to grips with this.

[00:32:17] Speaker 01:
And what's troubling to me is you have the district court going one way.

[00:32:21] Speaker 01:
You have the government now on appeal going another way.

[00:32:25] Speaker 03:
I don't think our position is inconsistent with the district court.

[00:32:29] Speaker 01:
It's not on the bottom line, but how you get there it is.

[00:32:31] Speaker 03:
Your Honor, both the district court and the government explain that this is a two-step calculation.

[00:32:38] Speaker 03:
The multiple cross references between the two paragraphs are what require both the baseline amount and the addition of the scheduled amount.

[00:32:50] Speaker 03:
And those interpretations are

[00:32:53] Speaker 03:
are the same.

[00:32:54] Speaker 03:
They get to the bottom line, and the logic is the same.

[00:32:57] Speaker 01:
I agree.

[00:32:57] Speaker 01:
You get to the bottom line the same bottom line, different way.

[00:33:01] Speaker 01:
And I thought counsel Friedman for appellant suggests that quite clearly.

[00:33:07] Speaker 01:
And when you look at the district court, it accepts part of the argument of plaintiff.

[00:33:12] Speaker 01:
And you're not making that same argument to this court today.

[00:33:17] Speaker 03:
Your Honor, the argument embraced by the district court is the same as the argument embraced here, that these two, in the main, these two subparagraphs govern the four fiscal years at issue, and that Congress's intent is plain.

[00:33:37] Speaker 01:
Is there anything in the legislative history that you've looked at that supports this hypothesis I raised?

[00:33:44] Speaker 01:
about the lingering effects of the recession?

[00:33:49] Speaker 03:
Your Honor, I don't know that I can speak to the background of the recession on the Farm Bill negotiations.

[00:34:01] Speaker 01:
So is that an answer that there's nothing in the legislative history to the Farm Bill that addresses this emergency food program in terms of

[00:34:13] Speaker 01:
the recession, the effects of the recession?

[00:34:18] Speaker 03:
Your Honor, I just am not prepared to speak to that specific point.

[00:34:22] Speaker 03:
That means what?

[00:34:25] Speaker 01:
That you haven't found it or there's more to read that you haven't had a chance to read?

[00:34:30] Speaker 03:
That the legislative history that we reviewed focuses on the trade-offs between SNAP and TPAP.

[00:34:40] Speaker 03:
But to your specific point about whether Congress used the background of the Great Recession as a reason to increase or not, double or not, the amounts authorized for TFAF in a particular fiscal year, I would have to go back to the legislative history.

[00:35:01] Speaker 01:
So the House and Senate just tossed a point.

[00:35:05] Speaker 03:
No, Your Honor.

[00:35:06] Speaker 03:
In fact, they were in agreement that the House and Senate versions of the authorization were these modest increases.

[00:35:15] Speaker 03:
The conference committee report makes that exact point.

[00:35:21] Speaker 03:
And this was part of a large and contentious debate about cuts.

[00:35:25] Speaker 01:
Well, you've read plenty of cases that say all this legislative history can't overcome the language that Congress actually passes.

[00:35:33] Speaker 01:
Now, Congress made a mistake.

[00:35:35] Speaker 01:
You can amend the language, but it's... And it hasn't done so, Your Honor.

[00:35:38] Speaker 03:
The agency has been operating under this interpretation, and Congress hasn't... Well, maybe the plaintiff's point is the agency's wrong.

[00:35:45] Speaker 03:
And Congress hasn't corrected the error.

[00:35:48] Speaker 03:
There's been no suggestion that Congress disapproves of the agency's interpretation.

[00:35:54] Speaker 03:
In fact, we've had multiple indications that Congress embraces the interpretation that the agency has adopted.

[00:36:02] Speaker 02:
So a couple of times you said if Congress were doing what they wanted to, we'd expect them to be clear.

[00:36:07] Speaker 02:
There's nothing clear about the statute.

[00:36:09] Speaker 02:
But I'm wondering if you have an answer to my question about whether there's any either rule of statutory construction, narrow construction of spending authorizations, or background presumption that courts should have if they were to come to a statutory language and find it ambiguous.

[00:36:33] Speaker 02:
Does a tie go to spending less, spending more, or there's just no relevant principle to be applied in this particular context?

[00:36:41] Speaker 03:
I'm unfamiliar with the statutory presumption that would do what Your Honor is suggesting, but we think that resort to such a presumption

[00:36:52] Speaker 03:
Is it necessary when you think this language is clear?

[00:36:56] Speaker 03:
Yes, your honor, I think we don't need to look at your legislative history.

[00:36:58] Speaker 03:
It's a straightforward way of of doing what Congress intended.

[00:37:02] Speaker 03:
And in fact, the legislative history is is abundantly clear.

[00:37:06] Speaker 03:
Everyone agrees.

[00:37:07] Speaker 03:
the contemporaneous drafters, subsequent appropriators, the agencies.

[00:37:11] Speaker 02:
Right, but we don't look at any of that under your theory.

[00:37:13] Speaker 02:
I mean, it's just odd that we have a situation where both parties are coming with diametrically opposed views, both insisting that the statute is absolutely clear, and I will confess that at least one judge thinks it's ambiguous.

[00:37:26] Speaker 02:
And so no one will tell me what to do with that ambiguity.

[00:37:30] Speaker 03:
If there were such a judge who thought that it was ambiguous, then resort to the legislative history.

[00:37:36] Speaker 03:
And the agency's practice would, I think, resolve that ambiguity.

[00:37:42] Speaker 03:
And the legislative history is clear plaintiff.

[00:37:46] Speaker 03:
All but concedes that the legislative history supports the agency's interpretation.

[00:37:50] Speaker 02:
And you claim no agency deference, correct?

[00:37:53] Speaker 03:
In the district court, we- You claim no agency deference.

[00:37:57] Speaker 02:
I'm not saying what you said in the district court.

[00:37:58] Speaker 03:
We have not argued for that in our brief here.

[00:38:02] Speaker 01:
All right, thank you.

[00:38:10] Speaker 01:
All right, Council for Appellate.

[00:38:11] Speaker 04:
Thank you, Your Honors.

[00:38:12] Speaker 04:
A couple quick cleanup points to your question, Judge Rogers.

[00:38:15] Speaker 04:
I point you to pages 33 and 34 of the addendum.

[00:38:18] Speaker 04:
They are one page, two separate one page excerpts from the legislative history where representatives who were standing in support of the final bill explained why they believe that

[00:38:29] Speaker 04:
The food stamp program did not need to be cut, should not be cut by $8 billion, given the hunger problem, and that they were reluctantly supporting the bill because at least they thought that the TPAP program was going to compensate for a reasonable portion of that cut.

[00:38:45] Speaker 04:
Judge Millett, to the government's point about that they needed to draft the statute this way, Congress needed to draft it this way for the inflation calculator, I think you should take a look at sub e. Congress knew how to rewrite an inflation calculator when it wanted that to be done.

[00:38:59] Speaker 04:
It did so in the exact same bill in sub e.

[00:39:03] Speaker 04:
This case, though, I think is ultimately one that reinforces the principle that the best evidence of Congress's intent is the text.

[00:39:09] Speaker 04:
I mean, we could speculate.

[00:39:11] Speaker 04:
We could try to find something in the legislative history about what was going on.

[00:39:13] Speaker 04:
But it's clear there is a lot of moving parts.

[00:39:16] Speaker 04:
This farm bill is hundreds of pages long.

[00:39:19] Speaker 04:
We are dealing with what comes out to be a half of a page.

[00:39:23] Speaker 04:
The legislative history is hundreds of pages long.

[00:39:26] Speaker 04:
The idea that the legislative history reflects the intent or the will of the legislators is, I think, demonstrably false.

[00:39:32] Speaker 04:
The question really isn't why Congress did this.

[00:39:36] Speaker 04:
I know we'd like to find a reason why, but the question is what did Congress do?

[00:39:39] Speaker 04:
Because the fact is when you're dealing with numbers that are written in statutes, they're always a little bit arbitrary.

[00:39:44] Speaker 04:
Whether the number is how long for a statute of limitations, three years, four years, five years.

[00:39:49] Speaker 04:
What's the emissions threshold for getting a clean air act permit?

[00:39:51] Speaker 04:
Is it 200 tons per year, 220 tons per year?

[00:39:55] Speaker 04:
How about spending on defense or education?

[00:39:57] Speaker 04:
The point is, when it comes to picking a number in a statute, that's Congress's sole prerogative.

[00:40:03] Speaker 04:
And what we know to come back, I guess, to Judge Millett's point.

[00:40:08] Speaker 04:
What we know here is that Congress every year, every year has appropriated $80 billion for the food stamp program, of which the delta between our positions is one third of 1%.

[00:40:20] Speaker 04:
The money is there.

[00:40:22] Speaker 04:
USDA, as we pointed out in our brief, has on average about $3 to $4 billion unspent every year out of that $80 billion appropriation.

[00:40:31] Speaker 02:
Can I ask you a quick question?

[00:40:32] Speaker 02:
You said you teed this up as a petition for a writ of mandamus.

[00:40:36] Speaker 02:
Why isn't APA relief perfectly sufficient?

[00:40:39] Speaker 04:
We believe it is.

[00:40:40] Speaker 04:
We did them, we pleaded those as the alternative, either for agency action unlawfully.

[00:40:45] Speaker 02:
Can you plead for a mandamus if you agree that there's an adequate statutory ground?

[00:40:50] Speaker 02:
Are those really alternatives that you can have, given what it takes to have mandamus?

[00:40:53] Speaker 04:
There's precedent in the Ninth Circuit, which we've briefed below, that suggests you can plead both.

[00:40:58] Speaker 04:
But yeah, we think that APA 7061 for agency action unlawfully withheld would be an adequate relief in this context, and that indeed whether it is a mandamus action or an APA action doesn't really ultimately affect the result.

[00:41:10] Speaker 04:
Because when an agency like USDA is acting in a way that is contrary to its mandatory nondiscretionary duty, relief is available from the court to direct it to do so.

[00:41:19] Speaker 04:
So unless the court has any further questions.

[00:41:21] Speaker 01:
Thank you.

[00:41:22] Speaker 04:
Thank you very much.

[00:41:23] Speaker 01:
Take the case under advisement.