Ausmus v. Perdue , 908 F.3d 1248 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 16, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
GLENN AUSMUS; RUSSELL L.
AUSMUS; DWAYNE FRITZLER;
SHIRLEY FRITZLER; BLAKE
GOURLEY; FARA GOURLEY; DEAN
JAGERS; JEFF SELF,
Plaintiffs - Appellees,
No. 17-1442
v.
SONNY PERDUE, Secretary of the United
States Department of Agriculture;
STEVEN C. SILVERMAN, Director,
National Appeals Division; HEATHER
MANZANO, Acting Administrator of the
Risk Management Agency and Manager of
the Federal Crop Insurance Corporation,
Defendants - Appellants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-01984-RBJ)
_________________________________
Lowell V. Sturgill, Attorney, Appellate Staff, Civil Division, United States Department
of Justice, Washington, DC (Chad A. Readler, Acting Assistant Attorney General, United
States Department of Justice, Washington, DC; Bob Troyer, United States Attorney,
Office of the United States Attorney for the District of Colorado, Denver, Colorado;
Charles W. Scarborough and Thais-Lyn Trayer, Attorneys, Appellate Staff, Civil
Division, United States Department of Justice, Washington, DC, on the briefs), appearing
for Appellants.
Jeremiah L. Buettner (Jeff L. Todd, with him on the brief), McAfee & Taft A
Professional Corporation, Oklahoma City, Oklahoma, appearing for Appellees.
_________________________________
Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
This is an Administrative Procedure Act challenge to the Federal Crop
Insurance Corporation’s implementation of the Farm Crop Insurance Act, 7 U.S.C.
§§ 1501–1524. Plaintiffs are winter wheat farmers from Colorado who were denied
the Actual Production History yield exclusion when they purchased crop insurance
for the 2015 crop year. Plaintiffs unsuccessfully sought review of the denial through
the United States Department of Agriculture’s administrative appeals process, and
then appealed to the district court. The district court reversed the USDA’s decision
because it concluded that the text of the FCIA unambiguously entitled Plaintiffs to
the APH yield exclusion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
AFFIRM.
I
A. Statutory Background
“The Federal Crop Insurance Act was enacted in 1938 as part of President
Franklin Delano Roosevelt’s New Deal legislation to rescue and preserve agriculture
in order to restore it to its previous position of strength in the national economy.”
Kansas ex rel. Todd v. United States, 995 F.2d 1505, 1507 (10th Cir. 1993). The Act
“promote[s] the national welfare by improving the economic stability of agriculture
through a sound system of crop insurance and providing the means for the research
2
and experience helpful in devising and establishing such insurance.” 7 U.S.C.
§ 1502(a). Congress created the Federal Crop Insurance Corporation to accomplish
these goals. Id. § 1503. If the FCIC determines that “sufficient actuarial data are
available,” the FCIC “may insure, or provide reinsurance for insurers of, producers of
agricultural commodities grown in the United States.” Id. § 1058(a)(1).
As is relevant to this appeal, winter wheat farmers can purchase insurance to
protect against below-average harvests. The policies at issue here offered yield
protection, which is “insurance that only provides protection against a production
loss” due to “unavoidable, naturally occurring events.” 7 C.F.R. § 457.8 (Common
Crop Insurance Policy Basic Provisions, Definition & Causes of Loss Sections). The
amount of coverage available for purchase is “determined by multiplying the
production guarantee by [the] projected price.” Id. (Definition Section). A
“projected price” is calculated by the FCIC for each crop for each crop year. Id. The
production guarantee is “[t]he number of . . . bushels” of wheat insured, and is
“determined by multiplying the approved yield per acre by the coverage level
percentage” elected by the farmer. Id. The coverage level percentage is the
percentage of a farmer’s expected harvest that he wishes to insure. Id.; 7 U.S.C.
§ 1508(c)(4)(A). The “approved yield” is “[t]he actual production history (APH)
yield, calculated . . . by summing the yearly . . . yields and dividing the sum by the
number of yields.” 7 C.F.R. § 457.8 (Definition Section).
Therefore, when a winter wheat farmer decides to purchase a yield protection
policy, he must choose what percentage of his expected harvest he wants to insure.
3
The FCIC then calculates his APH yield and the projected price for winter wheat for
that crop year. The amount of coverage available for purchase, on a per acre basis, is
the product of these three figures: the projected price, the coverage level percentage,
and the APH yield. For example, if a farmer wants to insure 75% of his harvest, has
historically grown an average of 60 bushels of wheat per acre, and the projected price
is $3.40 per bushel, the value of the coverage is $153.00 per acre. See 7 C.F.R.
§ 457.101 ¶ 11 (Small grains crop insurance provisions). Given this method for
calculating insurance coverage, a farmer’s actual production history is important.
The higher a farmer’s actual production history, the more insurance a farmer can
purchase.
A farmer’s actual production history is a simple average of between four and
ten years of his production data. 7 U.S.C. § 1508(g)(2)(A); 7 C.F.R. § 457.8
(Definition Section). Therefore, if production is abnormally low in one of those
years, a farmer’s APH will be depressed until that data point falls out of the APH
calculation. In 2000, Congress amended the FCIA to allow the FCIC to adjust a
farmer’s actual production history when a farmer had experienced an especially poor
harvest. See Agricultural Risk Protection Act of 2000, Pub. L. No. 106-224,
§ 105(b), 114 Stat. 358, 366–67 (codified at 7 U.S.C. § 1508(g)(4)). This yield
exclusion applied when the FCIC used a farmer’s “actual production history for an
agricultural commodity for any of the 2001 and subsequent crop years.” 7 U.S.C.
§ 1508(g)(4)(A).
4
In February 2014, Congress amended § 1508(g)(4), the yield exclusion that
was enacted in 2000, to add the APH yield exclusion. See Agricultural Act of 2014,
Pub. L. No. 113-79, § 11009, 128 Stat. 649, 957 (codified at 7 U.S.C.
§ 1508(g)(4)(C)). The APH yield exclusion allows a farmer to exclude a yield from
the FCIC’s APH calculation when “the per planted acre yield of the agricultural
commodity in the county of the producer was at least 50 percent below the simple
average of the per planted acre yield of the agricultural commodity in the county
during the previous 10 consecutive crop years.” 7 U.S.C. § 1508(g)(4)(C)(i). The
2014 Farm Bill made no other substantive changes to § 1508(g)(4), which states:
(4) Adjustment in actual production history to establish insurable
yields
(A) Application
This paragraph shall apply whenever the Corporation uses
the actual production records of the producer to establish
the producer’s actual production history for an agricultural
commodity for any of the 2001 and subsequent crop years.
...
(C) Election to exclude certain history
(i) In general
Notwithstanding paragraph (2), with respect to 1 or
more of the crop years used to establish the actual
production history of an agricultural commodity of
the producer, the producer may elect to exclude any
recorded or appraised yield for any crop year in
which the per planted acre yield of the agricultural
commodity in the county of the producer was at
least 50 percent below the simple average of the per
planted acre yield of the agricultural commodity in
5
the county during the previous 10 consecutive crop
years.
...
(D) Premium adjustment
In the case of a producer that makes an election under
subparagraph (B) or (C), the Corporation shall adjust the
premium to reflect the risk associated with the adjustment
made in the actual production history of the producer.
7 U.S.C. § 1508(g)(4).
B. Procedural Background
On July 1, 2014, the FCIC published an interim rule to implement the 2014
Farm Bill. General Administrative Regulations; Catastrophic Risk Protection
Endorsement; Area Risk Protection Insurance Regulations; and the Common Crop
Insurance Regulations, Basic Provisions, 79 Fed. Reg. 37,155. In that interim rule,
the FCIC warned that the APH yield exclusion “may not be implemented upon
publication” because “[p]roduction data availability and intensive data analysis may
limit FCIC’s ability to authorize exclusions of yields for all APH crops in all
counties.” Id. at 37,158. Therefore, the FCIC amended the Common Crop Insurance
Policy (CCIP) Basic Provisions—the actual terms of the insurance policy offered for
sale—“to allow the actuarial documents to specify when insureds may elect to
exclude any recorded or appraised yield.” Id. The revised CCIP Basic Provisions
stated that farmers “may elect” the APH yield exclusion “[i]f provided in the
actuarial documents.” 7 C.F.R. § 457.8 (Insurance Guarantees, Coverage Levels, and
Prices Section). In effect, the interim rule made farmers eligible for the APH yield
6
exclusion on a rolling basis as the FCIC updated its actuarial documents to add newly
eligible crops.
The deadline for winter wheat farmers to purchase insurance for the 2015 crop
year was September 30, 2014. App’x at 89. When Plaintiffs purchased insurance,
they elected to use the APH yield exclusion. Supp. App’x at 1, 16, 31, 33, 35, 43, 51,
53. But in a letter dated October 31, 2014, the USDA notified insurance providers
that the APH Yield Exclusion would not be available for winter wheat for the 2015
crop year. App’x at 76. The letter stated that insurance providers could respond to
farmers’ elections by pointing them to the USDA’s “actuarial documents,” which did
not yet “reflect that such an election is available.” Id.
Plaintiffs sought review of this denial through the USDA’s administrative
appeals process. Id. at 86. An administrative judge determined that she lacked
jurisdiction over Plaintiffs’ challenge because the October 2014 letter to insurance
providers was not an adverse agency decision. Id. at 96. Plaintiffs then appealed to
the Director of the National Appeals Division. Id. at 105. The Director found that
the October 2014 letter was an adverse agency decision, but affirmed the FCIC’s
decision not to make the APH yield exclusion available to winter wheat farmers for
the 2015 crop year. Id. at 119. The Director afforded Chevron deference to the
FCIC’s interpretation of 7 U.S.C. § 1508(g)(4)(C) and concluded that the FCIC
reasonably denied winter wheat farmers the APH yield exclusion for the 2015 crop
year. Id. at 118.
7
Plaintiffs appealed the Director’s decision to the United States District Court
for the District of Colorado. Id. at 125. The district court reversed the Director’s
decision and remanded the case to the FCIC with instructions to retroactively apply
the APH yield exclusion to Plaintiffs’ 2015 crop year insurance policies. Id. at 120–
31. The district court reasoned that the statute unambiguously made the APH yield
exclusion available to all farmers on the day the 2014 Farm Bill was enacted. Id. at
131. Defendants timely filed a notice of appeal. Id. at 134.
II
We first briefly address our jurisdiction because the district court remanded
the matter for the FCIC to retroactively apply the APH yield exclusion. Id. at 131.
“Remand by a district court to an administrative agency for further proceedings is
ordinarily not appealable because it is not a final decision.” New Mexico ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir. 2009) (alteration
omitted). But sometimes “the nature of [the agency’s] proceeding and the character
of the [district court’s] decision below indicate that viewing that decision as a
‘remand’ would strain common sense.” Id. at 699. In those circumstances, we treat
“the district court’s order . . . not [as] an administrative remand, but rather [as] a final
order that we have jurisdiction to review under 28 U.S.C. § 1291.” Id. Such is the
case here. The district court’s order was a final decision because the FCIC “appeared
in the district court as a traditional adversarial party, defending its own actions,” and
the district court’s order required the FCIC to retroactively apply the APH yield
exclusion, “not . . . recommence a proceeding.” Id. at 698.
8
Turning to the substance of this appeal, we review Plaintiffs’ challenge to the
FCIC’s interpretation of § 1508(g)(4)(C) under the Administrative Procedure Act.
Sinclair Wyo. Ref. Co. v. U.S. Envtl. Prot. Agency, 887 F.3d 986, 990 (10th Cir.
2017). “The APA requires courts to consider agency action in conformity with the
agency’s statutory grant of power, and agency action is unlawful if it is ‘in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.’” Id.
(citing 5 U.S.C. § 706(2)(C)). “We review questions of statutory interpretation de
novo.” Id.
“When a court reviews an agency’s legal determination, it generally applies
the analysis set out by the Supreme Court in Chevron v. Natural Resources Defense
Council, 467 U.S. 837 (1984).” Id. (parallel citation omitted). “[T]he initial step of
the Chevron inquiry is . . . to determine whether Chevron should apply at all.” Id.
(emphasis omitted). If Chevron applies, we
ask[] whether Congress has directly spoken to the precise
question at issue. If Congress’s intent is clear, then both the
court and the agency must give effect to the unambiguously
expressed intent of Congress. . . . But, if Congress has not
directly addressed the precise question at issue—if the statute is
silent or ambiguous with respect to the specific issue—the court
must determine . . . whether the agency’s answer is based on a
permissible construction of the statute.
Id. (citations and quotation marks omitted).
This appeal concerns the deadline for the FCIC to make the APH yield
exclusion available to farmers. The FCIC concluded that § 1508(g)(4) did not
establish a firm date for implementation of the APH yield exclusion. Aplt. Br. 20–
9
27. Therefore, the FCIC interpreted § 1508(g)(4) to allow phased implementation of
the APH yield exclusion as the FCIC acquired and analyzed historical production
data. App’x at 76. Plaintiffs argue that the FCIC erred because § 1508(g)(4)(A)
unambiguously required the FCIC to make the APH yield exclusion available “for
any of the 2001 and subsequent crop years,” a time period that includes the 2015 crop
year for which Plaintiffs sought to elect the APH yield exclusion. Aple. Br. 17–18.
Plaintiffs are correct. Regardless of the deference we afford the FCIC, the
FCIC erred because Congress “directly addressed the precise question at issue.”1
Sinclair Wyo. Ref., 887 F.3d at 990. “Courts determine Congress’s intent by
employing the traditional tools of statutory interpretation, beginning—as always—
with an examination of the statute’s text.” Id. “The plainness or ambiguity of
statutory language is determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the statute as a
whole.” Keller Tank Servs. II, Inc. v. Comm’r, 854 F.3d 1178, 1196 (10th Cir. 2017)
(quotation marks omitted).
Section 1508(g)(4)(A) states that “[t]his paragraph,” which includes the APH
yield exclusion, “shall apply whenever the [FCIC] uses the actual production records
of the producer to establish the producer’s actual production history for an
agricultural commodity for any of the 2001 and subsequent crop years.” 7 U.S.C.
§ 1508(4)(A), (C). “Th[e] term [‘shall’] indicates a mandatory intent,” Jewell v.
1
The Fifth Circuit recently reached the same conclusion in a case brought by
winter wheat farmers from Texas. See Adkins v. Silverman, 899 F.3d 395 (5th Cir.
2018).
10
United States, 749 F.3d 1295, 1298 (10th Cir. 2014)—here, an intent that the APH
exclusion apply for the 2015 crop year.
The FCIC argues that the term “apply” creates ambiguity because it could refer
to the APH yield exclusion’s legal effective date instead of its implementation date.
Aplt. Br. 24–25. Under the FCIC’s interpretation, Congress intended the APH yield
exclusion to be legally effective, but not implemented, for the 2015 crop year. But
here, “apply” refers to implementation of the APH yield exclusion, not just its legal
effectiveness. See Apply, Black’s Law Dictionary (10th ed. 2014) (“To put to use
with a particular subject matter”); Apply, Oxford English Dictionary (3d ed. 2008)
(“To bring (a rule, a test, a principle, etc.) into contact with facts; to bring to bear
practically; to put into practical operation.”).
The use of “apply” in § 1508(4)(A) is therefore unlike the use of “take effect”
in the cases relied on by the FCIC. See Am. Water Works Ass’n v. E.P.A., 40 F.3d
1266, 1271–72 (D.C. Cir. 1994); Nat. Res. Def. Council v. E.P.A., 22 F.3d 1125,
1137–40 (D.C. Cir. 1994). In those cases, the “take effect” language was ambiguous
and the agency reasonably concluded that it did not establish an implementation
deadline. See Am. Water Works Ass’n, 40 F.3d at 1272; Nat. Res. Def. Council, 22
F.3d at 1138–39. Conversely, § 1508(g)(4)(A) imposes an ongoing duty on the FCIC
“whenever” it calculates a farmer’s actual production history using actual production
records. Such an ongoing duty to “apply” § 1508(g)(4) is best understood as a
command to implement, not a statement of legal effectiveness.
11
True, other provisions added to the FCIA by the 2014 Farm Bill included
specific implementation deadlines. See, e.g., 7 U.S.C. §§ 1508(c)(6)(D)(i), (e)(5)(D),
1508b(a). But those provisions were incorporated into sections of the FCIA that
lacked the type of implementation language found in § 1508(g)(4)(A). Therefore,
Congress had no need to write a specific implementation deadline into
§ 1508(g)(4)(C) because § 1508(g)(4)(A) already supplied the deadline.
The FCIC also argues that the APH yield exclusion should not be read to apply
to the 2015 crop year because the FCIC did not have enough time to collect and
analyze the necessary data before the 2015 crop year. Aplt. Br. 25–26. The FCIC
maintains that offering the APH yield exclusion for the 2015 crop year would have
conflicted with its obligation to offer actuarially sound insurance policies. See 7
U.S.C. § 1508(a)(1), (d)(2)(B)(i). Though we are not unsympathetic to the practical
difficulties that the FCIC faced in complying with the various data-intensive
provisions of the 2014 Farm Bill, those difficulties do not alter our analysis of what
Congress intended when it enacted the APH yield exclusion using mandatory “shall”
language. See Forest Guardians v. Babbitt, 174 F.3d 1178, 1191–93 (10th Cir. 1999)
(lack of Congressional appropriations, which purportedly rendered it impossible to
comply with a provision of the Endangered Species Act, did not “relieve” the agency
of its “non-discretionary [statutory] duties”).
Finally, the FCIC relies on legislative history to argue that Congress did not
intend the APH yield exclusion to be implemented “in time for winter wheat
producers” to purchase insurance for the 2015 crop year. Aplt. Br. 26–27. We first
12
note that, “when the meaning of the statute is clear, it is both unnecessary and
improper to resort to legislative history to divine congressional intent.” Ribas v.
Mukasey, 545 F.3d 922, 929 (10th Cir. 2008) (quotation marks and alteration
omitted). But even “assum[ing] arguendo that an inquiry into legislative history is
. . . appropriate even where the statute’s text and structure evince Congress’s intent,”
New Mexico v. Dep’t of Interior, 854 F.3d 1207, 1227 (10th Cir. 2017), we are not
persuaded that the legislative history supports the FCIC’s view that it could deny
Plaintiffs the APH yield exclusion for the 2015 crop year. In fact, our reading of the
legislative history points to the opposite conclusion. The conference report states:
The Managers note that [the APH yield exclusion] provision is
effective upon the date of enactment of the [2014] Farm Bill. To
the extent that it is not feasible to implement for the 2014 crop
year due to the reinsurance year already having begun, the
Managers intend that the provision will be implemented in time
for the 2015 crop year.
H.R. Rep. No. 113-333, at 539 (2014) (Conf. Rep.) (emphasis added). Though the
conference report indicates that Congress anticipated some gap between the statute’s
effective date and the implementation of the APH yield exclusion, the report makes
clear that “the Managers intend[ed] that the [APH yield exclusion] . . . be
implemented in time for the 2015 crop year.” Id. As established by the FCIC, the
deadline to purchase insurance for winter wheat for the 2015 crop year was
September 30, 2014—seven months after the 2014 Farm Bill was passed. 7 C.F.R.
§ 457.101; see also App’x at 89. Because the FCIC did not make the APH yield
13
exclusion available to winter wheat farmers by September 30, 2014, legislative
history does not aid the FCIC’s interpretation of § 1508(g)(4)(C).
III
Because Congress instructed the FCIC to make the APH yield exclusion
available for the 2015 crop year, we AFFIRM.
14
Ausmus, et al. v. Perdue, et al., No. 17-1442
BACHARACH, J., concurring in the judgment.
I agree with the majority that Congress has directly spoken through
the Federal Crop Insurance Act, unambiguously requiring the FCIC to
make the APH exclusion available for the 2015 crop of winter wheat. The
FCIC’s argument therefore fails at step one of Chevron, and the district
court correctly reversed the decision of the Director of the National
Appeals Division of the United States Department of Agriculture. I write
separately to explain my thinking.
1. Standard of Review
We engage in de novo review of the district court’s ruling. Utah
Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). Like the
district court, we would ordinarily consider whether the FCIC’s decision
was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). But this inquiry turns here on
statutory interpretation, which we review de novo. Maj. Op. at 9.
2. In 7 U.S.C. § 1508(g)(4)(A), Congress unambiguously required the
FCIC to offer the APH exclusion whenever coverage is based on
actual production history.
In conducting de novo review, we begin with the statutory text. Id. In
7 U.S.C. § 1508(g)(4), Congress created the APH exclusion, using the
heading “Application” and stating that the provision “shall apply whenever
the [FCIC] uses the actual production records of the [farmer] to establish
the [farmer’s] actual production history for an agricultural commodity for
any of the 2001 and subsequent crop years.” 7 U.S.C. § 1508(g)(4)(A).
This provision, on its face, unambiguously makes the APH exclusion
available for the 2015 crop of winter wheat whenever the coverage is based
on actual production history. See Adkins v. Silverman, 899 F.3d 395, 402
(5th Cir. 2018) (“The statute could not be clearer: any time the FCIC
calculates actual production history for the 2001 crop year and later, all of
§ 1508(g)(4) applies, the exclusion provision included.”)
The FCIC argues that treating this provision as unambiguous would
require us to overlook differences between effective dates and
implementation dates. I disagree.
It is true that the effective and implementation dates may be
different. See Nat’l Res. Def. Council v. EPA, 22 F.3d 1125, 1137 (D.C.
Cir. 1994) (per curiam) (“‘[T]ake effect [on a given date]’ does not mean
‘be fully implemented’ by that date.” (emphasis in original)); Levesque v.
Block, 723 F.2d 175, 186 (1st Cir. 1983) (“[T]he Senate Agriculture
Committee saw a difference between an effective date and an
implementation date, and it believed that even after the amendments
became ‘effective’ they would not be self-executing; ‘implementation’
would be necessary.”). As a result, Congress can specify an effective date
without requiring immediate implementation. See Adkins v. Silverman, 899
F.3d 395, 402 (5th Cir. 2018) (“Certainly, Congress can dictate different
2
deadlines for when a law takes legal effect and a deadline for
implementation.”).
In § 1508(g)(4)(A), Congress stated when the exclusion would
“apply” in a section entitled “Application.” We must decide whether this
combination of terms refers to the date that the APH exclusion takes effect
or is implemented. To answer, we consider
 the dictionary definitions of “apply” 1 and
 the relationship to other parts of the statute. 2
As the majority explains, the dictionary definitions of “apply” refer
not only to effectiveness but also to implementation. Maj. Op. at 11.
The dictionary definitions match Congress’s treatment of the terms
“Application” and “apply” (elsewhere in the bill) as dates of
implementation. For example, § 11003(d) of the 2014 Farm Bill is entitled
“Application Date” and states that “the [FCIC] shall begin to provide
additional coverage . . . not later than for the 2015 crop year.” Agricultural
Act of 2014, Pub. L. No. 113-79 § 11003, 128 Stat. 649, 956 (codified at 7
U.S.C. § 1508 note).
1
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1180 (10th Cir.
2005).
2
New Mexico v. Dep’t of Interior, 854 F.3d 1207, 1223–24 (10th Cir.
2017).
3
In addition, § 4022(c) of the Farm Bill bears the title “Application
Date” and specifies that the provision generally “shall apply” beginning on
the date of enactment. Id. § 4022(c), 128 Stat. at 808–09 (codified at 7
U.S.C. §§ 2014 note; 2025 note). The FCIC argues that the term
“Application” does not refer to the date of implementation. But this
argument is untenable based on the remainder of § 4022(c), which
 creates a general rule using the terms “Application” and
“apply” and
 carves out exceptions that pertain specifically to
implementation.
See, e.g., id. § 4022(c)(2)(A) (“Not later than 180 days after the date of
enactment of this Act, the Secretary shall . . . develop and publish the
process for selecting pilot projects . . . and . . . issue such request for
proposals.”). Of course, the exceptions became necessary only because the
statutory terms “Application” and “apply” had created a general rule for
implementation of the statute. Consequently, the presence of exceptions
reflects Congress’s creation of a general rule for implementation based on
the combination of the terms “Application” and “apply.”
In 7 U.S.C. § 1508(g)(4)(A), Congress uses the same heading
(“Application”) and the same directive (“shall apply”) that are used in
§ 4022(c) of the Farm Bill; the only difference is that § 1508(g)(4) has no
exceptions. When the entire Farm Bill is read together, § 1508(g)(4)(A)’s
4
reference to the heading “Application” and the directive “shall apply”—in
combination—must govern not only effectiveness but also implementation.
I therefore consider § 1508(g)(4)(A) unambiguous based on
dictionary definitions and other parts of the 2014 Farm Bill.
3. The legislative history does not affect the unambiguous meaning
of § 1508(g)(4)(A).
Given this unambiguous content, the legislative history does not
provide meaningful insight.
We may assume, for the sake of argument, that consideration of
legislative history can be appropriate even when the statutory text appears
to unambiguously reflect congressional intent. Even if legislative history
were usable at step one of Chevron, however, we could use that legislative
history only if it were itself unambiguous:
[T]he plain language of this statute appears to settle the
question before us. Therefore, we look to the legislative history
to determine only whether there is “clearly expressed
legislative intention” contrary to that language, which would
require us to question the strong presumption that Congress
expresses its intent through the language it chooses.
New Mexico v. Dep’t of Interior, 854 F.3d 1207, 1227 (10th Cir. 2017)
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987)).
Both sides rely on an excerpt from the House’s conference report:
The Managers note that [the APH exclusion] provision is
effective upon the date of enactment of the [2014] Farm Bill.
To the extent that it is not feasible to implement for the 2014
crop year due to the reinsurance year already having begun, the
5
Managers intend that the provision will be implemented in time
for the 2015 crop year.
H.R. Rep. No. 113-333, at 539 (2014) (emphasis added). This excerpt is
itself ambiguous.
The farmers interpret this excerpt as confirmation that the APH
exclusion would become immediately available under § 1508(g)(4)(A).
Under this interpretation, Congress is instructing the FCIC to apply the
exclusion for the 2015 crop year. See Adkins v. Silverman, 899 F.3d 395,
403 (5th Cir. 2018). This interpretation is plausible because it reasonably
 interprets the word “effective” as referring to the statute’s
implementation for the upcoming year of crops and
 interprets the word “implement” as referring to the FCIC’s
ability to timely calculate the APH exclusion.
But the FCIC also proposes a plausible interpretation. Under this
interpretation, the excerpt suggests that Congress used the term “effective”
to set the effective date and delegated implementation to the FCIC while
urging the FCIC to expedite the offering. Thus, the conference report is
itself ambiguous. 3 Given this ambiguity, the conference report does not
affect the unambiguous meaning of § 1508(g)(4)(A).
3
The farmers also cite post-enactment statements by two members of
Congress, but these statements do not bear on the meaning of the law at the
time of enactment. See Barber v. Thomas, 560 U.S. 474, 486 (2010)
(“[W]hatever interpretive force one attaches to legislative history, the
Court normally gives little weight to statements, such as those of the
individual legislators, made after the bill in question has become law.”
(emphasis in original)).
6
4. Calculating the APH exclusion for the 2015 crop of winter wheat
does not conflict with the FCIC’s other statutory obligations.
The FCIC also argues that other statutory obligations create
ambiguity by restricting offerings of crop insurance until all necessary
underwriting data has been collected. In my view, however, the FCIC has
misinterpreted these provisions. Properly interpreted, they do not conflict
with the statutory obligation to offer the APH exclusion whenever
coverage is based on actual production history.
The FCIC argues that it needed time to gather data and make
calculations. But Congress did not require the FCIC to offer the exclusion
right away. Instead, Congress simply required the FCIC to offer the
exclusion for the next crop year. 7 U.S.C. § 1508(a)(1). The farmers’
deadline to buy insurance for the 2015 crop of winter wheat was
September 30, 2014. But by that time, § 1508(g)(4)(A) had been in effect
for over seven months.
The FCIC points out that the APH exclusion required millions of
calculations. But the FCIC was able to make the required calculations for
eleven of the crops by October 21, 2014—just three weeks after the
farmers’ deadline to insure their 2015 crops of winter wheat. 4
4
The FCIC states that it completed the calculations for the 2015 crop
of winter wheat within three months of the farmers’ deadline to purchase
insurance coverage.
7
But let’s assume that the FCIC couldn’t have made these calculations
by the farmers’ deadline to insure their winter wheat. The question would
then be whether Congress had (1) created an unrealistic deadline or (2)
intended to give the FCIC flexibility on whether to postpone the APH
exclusion. Given these dual possibilities, the FCIC considers the statute
ambiguous because of a potential inconsistency with three statutory
sections: 7 U.S.C. § 1508(a)(1), § 1508(d)(1), and § 1506(n)(1). I disagree.
Section 1508(a)(1) obligates the FCIC to ensure “sufficient actuarial
data are available (as determined by the Corporation)” before providing
insurance or reinsurance for crops. 7 U.S.C. § 1508(a)(1). Under this
provision, the FCIC argues that it lacks the statutory authority to offer
crop insurance without enough data. But the FCIC did offer insurance for
the 2015 crop of winter wheat based on actual production history.
With a different course, the FCIC could have complied with both
§ 1508(a)(1) and § 1508(g)(4)(A) even if more time had been needed. For
example, the FCIC could have
 declined to insure the 2015 crop of winter wheat based on
insufficient data or
 retroactively adjusted premiums and coverages for farmers
(like the plaintiffs) who had already elected to utilize the APH
exclusion. 5
5
The FCIC states that it decided not to make the APH exclusion
available, once the data had been collected, because the farmers would
have had the benefit of early information about the status of their wheat
crops. But all the plaintiffs had already elected to take the APH exclusion
8
But the FCIC did not take advantage of either option. Instead, the FCIC
continued to insure the 2015 crop of winter wheat with no adjustments,
ignoring the statutory mandate that the FCIC offer the APH exclusion
whenever the coverage is based on actual production history. Section
1508(a)(1) did not allow the FCIC to offer the insurance while depriving
the farmers of the APH exclusion.
The FCIC also points to § 1508(d)(1), which obligates the FCIC to
“fix adequate premiums for all the plans of insurance . . . at such rates as
the Board determines are actuarially sufficient to attain an expected loss
ratio of not greater than . . . 1.0.” 7 U.S.C. § 1508(d)(1); id.
§ 1508(d)(1)(C). As the FCIC notes, “[a]ctuarial soundness is a bedrock
requirement of the crop insurance program.” Appellants’ Br. at 23–24.
But the FCIC could carry out this “bedrock requirement” without
violating the unambiguous directive in § 1508(g)(4)(A): When the FCIC
could not adequately calculate the impact of the APH exclusion for the
2015 crop of winter wheat in the 7+ months granted by Congress, the FCIC
could have declined to insure the 2015 crop of winter wheat based on
actual production history or made retroactive adjustments upon completion
of the calculations. The FCIC instead continued to insure the winter wheat
by September 30, 2014, the cutoff date to buy insurance for the 2015 crop
of winter wheat. Appellees’ Supp. App’x at 15, 30, 32, 34, 42, 50, 52, 54.
9
based on actual production history without the underwriting data for the
APH exclusion.
The FCIC apparently operated under the mistaken belief that
§ 1508(d)(1) created an ambiguity in § 1508(g)(4)(A). It didn’t. Section
1508(d)(1) simply required the FCIC to collect the underwriting data by
September 30, 2014, to postpone coverage based on actual production
history, or to make retroactive adjustments in the insurance policy. The
FCIC didn’t opt for any of these solutions.
Finally, the FCIC points to § 1506(n)(1), which grants discretion to
the FCIC to “take such actions as are necessary to improve the actuarial
soundness” of the crop insurance program, which can include “taking any
other measures authorized by law to improve the actuarial soundness . . .
while maintaining fairness and effective coverage for agricultural
producers.” 7 U.S.C. § 1506(n)(1) (emphasis added). But the FCIC
identifies no other pertinent measures authorized by law that would have
permitted disregard of the implementation deadline imposed in
§ 1508(g)(4)(A). Section 1506(n)(1) therefore does not apply.
* * *
The FCIC did not need to violate a single statutory obligation by
making the APH exclusion available upon the use of actual production
history.
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5. Conclusion
Together, the statutory provisions put a burden on the FCIC. The
issue, however, is not the wisdom of placing this burden on the FCIC.
Instead, we are only to construe the statutory text. Doing so, I believe that
§ 1508(g)(4) unambiguously required the availability of the APH exclusion
if the FCIC were to choose—as it did—to continue insuring the 2015 crop
of winter wheat based on actual production history. Thus, I agree with the
majority’s decision to affirm.
11