Legal Case Summary

We will hear argument first this morning in case 12-123 Horn versus Department of Agriculture. Mr. McHull? Mr. Chief Justice and may it please the Court. There is a surprising number of difficult merits questions lurking in this case, mostly involving whether there was a taking and if so, how it should be conceptualized and valued. Could I just stop you on a factual matter because it has confused me. As I look at the captions of the cases, there appear to be two different partnerships. One partnership known as Raisin doing businesses, Raisin Valley Farms, has Mr. Horn and his wife as the partners. Larson Valley, the producer, not the producer, the handler, has four other, the horns plus two other people. So, who owns the raisins? Isn't that the first partnership of the husband and wife and isn't the handler a second partnership that does the business of handling? The other two partners in Larson were Laura Horn's parents now deceased. But the estates have been substituted. That's right. So, isn't it two legal entities, one who owns and one who handles? One partnership produces one partnership handles? The Department of Agriculture did not distinguish among them. Well, I don't care if they did or they didn't. I mean, we should know. Are they two separate legal entities? One, two, three. They are separate legal entities all effectively controlled by the same family. Well, that's, you know, in the cap, you get some limited liability by creating separate entities. So, the creature who owns is one partnership and the entity that produces, that handles is a second one. I assume this is one of those difficult merits questions you are alluding to. It doesn't go to whether there's jurisdiction, but to whether the claim of a taking can be asserted by the partnership in question. Isn't it? That's right, Justice. I don't see how it goes to jurisdiction, which is the only question before. Well, it does in my mind because what is the claim assuming that the producer owns the producer entity owns the raisins? What exactly is being taken from the handlers? Is it the percentage, it can't be the raisins because they don't own them? Well, Justice Sotomayor, I'm delighted to preview our argument on the merit on that. What is it being taken from the handler entity? The order in this case was issued against the horns in their capacity as a handler only. So, the entire fine I was paid by them, none of the fine is attributable to anyone in their capacity as a producer. All right. So, go back. What is the, what was taken from them? You're saying it's just the fine? The fine is it taking? Or what was the interest that their claiming was taken by the government? They didn't own the raisins

. So, they get paid a fee for handling. So, this is our position, Justice Sotomayor. I think we have to look at what is it that the Department of Agriculture attempted to take? So, in the demand letter from the Department of Agriculture addressed to the horns, they ask the horns to deliver California raisins or the dollar equivalent. So, that's the fact upon which all of this case is built. Now, what is the legal significance of that? California raisins or the dollar equivalent? It is our legal position, or it will be our legal position on the merits, that when the government seeks a specific physical property, a Reese, or its monetary equivalent, that that is a taking of the Reese itself. And there's support for that and the precedent from this Court. The closest case is village of Norwood versus Baker. In this case, the city condemned a strip of land for the purpose of building a road. They tried to get out of paying any compensation by claiming that the abutting landowner would gain value. That was rejected. They were assessed a $2,000 compensation for the taking. And then the city turned around and issued a special assessment against the land owner for precisely that $2,000. The landowner came back up to this Court and this Court held that it was a taking, a taking of the land in a subsequent case just a couple of years later, the Court described this as a, quote, actual confiscation of private property to public use. But you begin by saying that these are merits defenses, but you wanted to focus first on the jurisdictional question this before us. That's right. I hope it helps to inform the jurisdictional question. But the jurisdictional question is this. The Ninth Circuit held that my clients could not even raise their takings claim on the merits until they had first gone to the Court of Clams. I think there are three things wrong with that. That might be true. And my right in thinking that there is no dispute on that point that they taking claim could have been asserted by the horns as producers in the Court of Federal Clams. I think that the government no longer disputes, although you should ask them to be clear. I think that they no longer dispute that this is not a jurisdictional point, even though they prevailed after the petition for rehearing was filed in the Court of Appeals on the Federal Law. The jurisdictional or not, as a practical matter, produces who are not subject to fine as handlers, but the producers of the raisins whose raisins are being segregated. Could they go to the Court of Federal Clams and say my raisins have been taken? The whether the claim is being brought in the capacity of producer or handler, I think is not relevant to one of our arguments and it is relevant to the other argument. But I just want to give a straight answer to that question. You are representing producers, and they just produce. No, no, no. We are representing people who are both producers and not members

. Hypothetically. Hypothetically. Is the Court of Federal claims the proper form for a producer? It depends upon whether the taking has been from them or not. In the ordinary case, the ordinary relationship between a producer and a handler, the producer is not paid for the reserve raisins, and therefore any payment that would come and any lawsuit on behalf of those raisins would go to the producer, and that would go, I think, to the Court of Clams. In this case, though, the business models quite different from that, and the producers in this case were paid everything. They received full, valid market value for their raisins. The only people who are outing money in this case are the horns in their capacity as handler. So that is why they are the only people in the field. The problem is that they were entitled to that money, meaning they had to pay it over to the producer. The producer was going to pay them a handling fee, but that money didn't belong to them, it belonged to the producers who supplied them with the raisins and expected payment for them. I'm not sure. If they were sold in the ordinary court. I'm not sure which money you were, if they have not asserted any claim on any money, the producers have been completely paid off. It is the handlers who have been held responsible, and the reason they were held responsible was the following logic. And you see this on page 78 of the Judicial Office's opinion. They were held responsible because in their processing capacity, when they were doing the stemming, the seeding, the fumigating, the packing, that this was regarded by the Department of Agriculture as possession, physical possession of the raisins, and acquisition of the raisins, even though they never had title to the raisins. It's the Department of Agriculture that has attached to them a possessory interest in the raisins, and then assess them the full monetary equivalent of those raisins, full market value, $484,000 for the market value because it's under this very unusual regulatory scheme, the government regards them as having possessed the raisins, even though that is not. Kagan, I'm sorry. Could I along the lines of what Justice Ginsburg was saying? Suppose that the horns had given over all the raisins, right? But that they thought that this was improper, that this marketing order was a violation of the takings clause, could they have gone to the court of claims via the Tucker Act and said, we want our money back? They gave over the raisins the question, they say, where entitled to compensation? Could they have gone through the court of claims? If they had not been paid for the raisins, they had taken raisins to a handler, received no money for them, I think that they could go to the court. In other words, the horns did what the marketing orders suggested they should do. They gave over the raisins, but they said, this is just improper. You're saying they could go to the court of claims? Okay. So if that's the case, I guess then the question is, why didn't they have to go that route? They didn't go that route, and the question, I think, is what are the consequences of that? Right. Because what they knew was that they were not going to be compensated for the raisins, and therefore they came up with a plan, a business plan, that they believed made eliminated any handler and made it unnecessary for any of the independent producers on whose behalf they're operating to turn over raisins to the government. The plan was ultimately rejected, and we haven't brought a cert petition on it, but the plan actually complies with the language of the regulation because they believe that in their capacity as handler, as processor, that they never required the raisins. Acquisition is the key term for becoming a handler under the rule, and they believe that since they were simply providing a service for $12 a ton, to their neighbors, that they never acquired the raisins, they never possessed the raisins. Some of the raisins were their own. One had to come out of the raisins where they were owned. At least as to that, that wouldn't be true, right? That's correct

. I think that's correct. To get you back to the jurisdiction point, let's just assume a hypothetical case where regulated entity has to pay an exact which it deems to be a penalty, and let's assume it can go to the court of claims, but it doesn't. It waits until the penalties assess, and then when the penalties assess, it says this is a take. Is that the case that you want to discuss with us today? That's right. When the underlying order would be a taking, and they have been assessed money because they comply with the taking, we believe they can challenge that as a taking, and both under the AMAA procedures in which are exclusive, I think that they have to go through the through the Department of Agriculture and the to the District Court, but I also think under the principles of the announced by this Court and the Appthel decision that they are entitled to a remedy in the District Court. Kagan asked, Mr. McDonnell, would you explain if there were just handlers who weren't producing any raisins, if there were just handlers, do they have a claim and where? And if there were just producers, I take it from the question I asked, and the question just as Kagan asked, that if there were just producers, the raisins got set aside, they were paid for only the ones that went to market. They could go to the Court of Plains. But now they're just handlers, as this entity is for most of the raisins that are involved some 80 percent, right? It's only about 20 percent as they were owned. So could this work for someone who was just a handler, doesn't produce any raisins? So if they are just a handler, as the Department of Agriculture treated them, as far as the Department of Agriculture is concerned, they are only a handler, that they were required to raise their exhaust their claims before the Department of Agriculture and then challenge the order in the District Court. Kagan, but I'm trying to understand, is this scheme, apparently it wasn't enough just to be a handler or just to be a producer? The claim that you're making turns on the coincidence of being both a producer and a handler. I don't think that that's so. I think that the horns ought to prevail on either, in either of their concerns. So any handler, any handler could be making the same claim? Any handler who has a business model that is similar to this, but most handlers. What's the business model that's similar to this? So some most handlers, if they're in compliance with the order, they take all the raisins from the producers, they only pay for the free pool raisins, they don't pay for the reserve raisins, and they never have any interest in the reserve raisins. And in this case, the horns did not operate that way. The producers receive full value for all of their raisins, so the producers are not in the case. They have no standing, they have no pocketbook injury. The entire pocketbook injury in this case is borne by the horns in their capacity as a handler. I'm sorry. In the normal's model, the handlers buy or buy the free raisins and then pay the producers as that would be. And so that's the difference in this model. They don't take title to the raisins is what you're saying. Exactly. And the horns believed that this would mean that they were not handlers. And that was, and they were found to be handlers in. What is the value in permitting a party who doesn't own property, to raise a taking claim on behalf of other people, meaning doesn't the system have an interest in ensuring that people comply with their legal obligations? And to the extent that you choose to violate the law, the way they have here, that the fine is punitive and not compensatory, meaning you don't own the raisins, but you were obligated to put raisins aside for someone else, you were their agent, and you failed to meet a government obligation that was independently on you. So I go back to my question, what was the taking since you didn't own the raisins, the taking is the fine is what you want to take. The taking is what the government demanded, which is either give me your house or give me your money, give me your raisins or give us the property equivalent

. They're not your raisins. By the time this order was enforced, the raisins were gone, and so is a practical matter, only one of those two alternatives was what. And to the rest of the Schindsberg's question, that you said the producers could go to the Court of Federal claims to contest the taking of the producers could go to contest the taking of raisins. If they had not been paid for the raisins, if they had not been paid for it, but are you, does that mean you do not think that the AMAA withdraws Tucker-Act jurisdiction? It withdraws Tucker-Act jurisdiction only for handlers. So if we're telling the pure producers, pure producers do not go to the, don't have to go through the AMAA process. Why, why does it withdraw for the one and not the other? These New Deal era programs, Justice Scalia, or somewhat, the, the, I mean the policy reason, what in the law lead you to that conclusion? Well, this is straightforwardly set forth in the, in the, in sections 14A and 15A of the AMAA. I don't think that's in dispute. So only producers are, are regulated by this program. Only producers have a right to go through their remedies in the Department of Agriculture. Only producers have to do that. It's, it's, it's, it's completely, it's, I'm sorry, I'm sorry, excuse me. Each of those was hand, please substitute the word handler for each of those. It's only the handlers that are regulated under this, under this program. So, and, and, and my clients were treated as handlers. They believe that they were not, but it is the Department of Agriculture that has attached this, this status to them. And it's, it's, I think quite a catch 22 for the government to come along and say, although we are finding you $700,000 in your capacity as a handler, you're not a handler for purposes of challenge. I might, I might, I might, I might get to what you're arguing about. And I might be off base by now. I feel like handlers, purchaser is raisins. I, like an old habit in the Stella, I just want to see that I'm, that I'm right. Tell me, just say you're wrong and I don't go into it further wrong. But the, the, there are some people they've been, they are either, they have some raisins, all right. And, and these particular people whom the, the department has said, have acquired the raisins. They said they acquired the raisins. And so they're, they're with some raisins. And then the government says, do this thing with your raisins. And they don't want to do it. So they don't. So they don't do it, even though the law says do it

. And then they say the law is unconstitutional. And moreover, you find us. Huge amount of money. And we don't want to pay it. It's the law is unconstitutional. And we consider that money that we paid, call it a fine, call it what you want. But we consider we shouldn't have paid it. And now we want it back and we want compensation. And we think it's a taking. And where do we go? Can't we make that argument in the Ninth Circuit? It's something like that. And that will be our own most exact, all right. But not quite. X. With, with one detailed difference. Yes. That this is the proceeding here that decides whether they have to pay. They have not yet paid the fine. Okay. So we shouldn't have to pay because this is all unconstitutional. And now what you argue. So they're raising a defense. It isn't that they are, it isn't that they're getting, I got it. And then the Ninth Circuit says go to the Court of Claims. And you say no, we don't have to go to the Court of Claims. But that detail actually is quite important because remember you can't even go to the Court of Claims unless you are seeking damages for an actual violation that has already taken place. We could not go to the Court, the warrants could not go to the Court of Claims right now. What the government says is that they should pay the $700,000 fine first and then go to the Court of Claims to get it back. And that is exactly what this Court said in AppFell is a, quote, pointless set of activities that Congress could not possibly have contemplated. I think that's true, Mr

. McConnell, is part of the fine, the part of the fine fools under AppFell, but not the other part. As to the compensation part, it seems to me you have a pretty decent AppFell argument. But as to the penalty part, I don't really understand how the AppFell argument would go. It seems to me that as to the penalty part, the key thing is that if they had handed over the raisins, they could have gone to the Court of Claims and had the compensation done there. And the fact that the government is penalizing them for not complying with the marketing order, it's not full within the rationale of AppFell. Well, the most pertinent case for that part of the fine, for the penalty part is Missouri Pacific Railroad versus Nebraska. So this is a case where the railroad was told by the State to do some, some expensive work. Railroad says no, that would be a taking if we were required to do that. There is no compensation available. And so they don't do it. They're fine $500. That gets up to this Court, and an opinion by Mr. Justice Holmes. The Court holds that that is a taking, and that the railroad is entitled to challenge the taking in the form of the fine. So for the penalty portion, the punishment portion of the fine, Missouri Pacific Railroad is actually the more pertinent decision. Which comes back, I don't think I fully answered all the variants of Justice Sotomayor to do is to get you on the basic argument which you started with, which is why is there, why was the Ninth Circuit wrong when they said they had no jurisdiction to hear this that rather they had to go, you had to go to the, is it? I mean, I took off the three reasons. One is it has nothing to do with jurisdiction. Second, the Tucker Act does not apply to cases where there is a defense being lodged to a monetary exaction. That's app fell as supplemented by Missouri Pacific Railroad. And third, even if that were not so, the AMAA displaces the Tucker Act, and they were required to exhaust their remedies before the Department of Agriculture and take their case to the district court in which they are resolved. First, I forgot the first already. What was the first? The first is that it isn't jurisdictional. And therefore, it's not in case it's jurisdictional. What is jurisdictional? The requirement to go to the court of claims when you need to is not jurisdictional that that's a matter of remedy. That is, it's the equitable principle that you may not pursue your case for an injunctive relief when there's an adequate and a remedy at all. Mr. McConnell, if the producers had decided to challenge this as a Tucker Act violation, they would have had to hand over the raisins, or could they have just held on to the raisins and said, I'm not handing it over until I get just compensation. So had they held on to their own raisins and sold them, I assume, you don't not just let them rot, if they had sold them, then the Department of Agriculture would have called them a handler because anyone who sells raisins is called a handler. And then they would be fined in their capacity as a handler, and it would be a somewhat similar case to this one

. All right. Maybe an easier one than that. Well, the point is that under a normal takings claim, you have to hand over your property. You have lost the value, and you want the government to pay it back to you, correct? Not necessarily correct. There are a whole string of cases in which property owners raise takings as a defense, rather than turning over the property, Kaiser Ratna is perhaps the most best known recent case, but out of an administrative context, there's the Florida power and light case. Pencentral was like this, Loretto versus Teleprompter is like this. There's a whole string of cases. The government themselves cite six such cases, most of them fairly old, for this proposition. So there's nothing unusual about bringing a defensive takings claim. Mr. Kahn, I don't want to encroach on your rebuttal time, but what one mysterious thing, the first time around, the Ninth Circuit decided this case on the merits. So if you're right, I take it. We remand, and then they adjudicate the merits of the takings claim, but they already did that. Yes, Justice Ginsburg. And they did that on a ground that we think is manifestly inconsistent with this Court's precedence. We were prepared to, we were trying to get an unbunk review, and we're prepared to come to this Court from the merits determination. We were blocked from that because the government after the petition for rehearing was filed came up with calling this a jurisdictional argument, raised a subjection for the first time, and the Ninth Circuit panel accepted their view, issued a new opinion stripping out the entire merits and substituting this jurisdictional holding that is producing so much enjoyment for us this morning. May I reserve the remaining time? Thank you. Thank you, Mr. McConnell. Mr. Palmore. Thank you, Mr. Chief Justice, and may it please the Court. I'd like to start where Justice Sotomayor started with Petitioner's Council, because any takings analysis needs to begin with a careful identification of what property was allegedly taken. Petitioners in this case have actually advanced two different theories about what property of theirs was taken, what taking is that issue here, raisins and money. We think both takings claims fail for threshold reasons, but they're different threshold reasons that call for different analysis. Mr. Palmore, before you do that, then have you conceded the point that this is not jurisdictional? We agree that the failure to go to the Court of Claims is not properly viewed as a jurisdictional defect

. We did invoke Ninth Circuit precedent below stating that it was jurisdictional, and some of this case's, this Court's case is put it in rightness terms, which is an Article III concept. So there have been a few. When did you first raise the argument that it was jurisdictional in our opposition to the rehearing petition? And now you're changing back again and saying it's not. There was Ninth Circuit precedent holding that it was jurisdictional, and we relied on that, and there's certainly language from it. You relied on that when you got to rehearing. You didn't rely on that before you went before the Ninth Circuit, right? That's correct. We think this is properly viewed as a substantive defect in the claim. So in a sense, the Ninth Circuit and its initial panel decision ruled for the government on kind of substantive defect one, there's no taking. And what it did on rehearing in our view, although it attached the wrong label to it, it substantively was correct in concluding that there was substantive defect in the claim. But Mr. Palmore, if you're conceding now that this is not jurisdictional, it seems to me that your Tucker Act argument as a substantive argument, I mean, has been waived. You didn't raise that argument until the rehearing petition. That would certainly be something that the Ninth Circuit could consider in the event that were a remand here, but the Ninth Circuit did decide it. The substance of its bottom line conclusion was correct, and all of its analysis was correct. It simply used the wrong word, so we think it is here. And what? Well, I'm really confused. You're saying there ought to be a remand here, because the question is not jurisdiction, which is just what your friend says, right? Well, the Ninth Circuit did. But still if you're in agreement, it ought to go back to the Ninth Circuit, they should do it on the merits, and if that's wrong, we can review that. Look, if that happens, of course, as Justice Ginsburg pointed out, the consequence for us is they reinstate the prior panel opinion. Well, that may well be. Also, I'm not going to resist too strenuously that kind of remand, but they did decide it, and moreover, they decided something separate, which is at J.A.305, they said something different, which is the kind of threshold defect in the taking claim turning on raisins, which is there's a capacity problem. So there are two problems with a raisin claim, a capacity problem and a just compensation problem. The capacity problem is this. In 2002, after having been strictly raisin producers since 1969, entering into a market where there was a reserve requirement from the beginning, they knew what they were getting into, they decided to adopt a new business model, as Petitioner's Council says, but as was found below, they adopted a business model that was an intentional, willful attempt to evade regulatory requirements in order to secure an unfair competitive advantage. But what they did was they took on the obligations of a handler. They became raisin handlers in 2002, and what came with that status were a series of regulatory obligations that apply only to handlers and under the AMAA can apply only to handlers. The requirement to have raisins inspected the requirement to file truthful reports, the requirement to make records available, and the requirement to separate out raisins into what's called free tonnage and reserve tonnage

. Any raisins processed doesn't matter who owns them. Those are handler specific regulatory obligations that were imposed upon them, and they violated every single one of them, willfully and intentionally in order to secure an unfair competitive advantage. And what the USDA did was impose penalties on them for the violation of law that attached to them only as raisin handlers, and then they have invoked the judicial review proceedings in Section 14 that provides a judicial review mechanism only for handlers. But part of that penalty was, you know, your raisins or your life, right? I mean, it was, you don't have to pay the penalty if you give us the raisins. That's not correct, Justice Scalia. They have to give the raisins. Mr. McConnell referred to demand- I mean, they are under a regulatory obligation to provide the raisins. If they violate that regulatory obligation, they are subject to sanctions. One component that amounts to the same thing, your raisins or the penalty? No, but it's not a choice, and I think that's very important to point out. There were actually two different demand letters. Mr. McConnell referred to a demand letter saying, your raisins or your money. There was an initial demand letter saying, you are a handler, you have to comply. We're going to come get the raisins. The second demand letter said, we showed up, literally, it says, we showed up with our truck. You didn't provide the raisins. So now you've got to provide the cash equivalent, and there were also going to be, as there were, separate regulatory proceedings brought against them for violating those obligations. Not just the failure to reserve, but all these handler specific obligations. They filed false reports. They didn't make raisins available for inspection. There were a whole host of regulatory violations that were at issue here. And when they invoked the handler review action in the district court, they could assert defenses as a handler. But for instance, another producer, producers can't invoke these judicial review schemes. Another producer couldn't have intervened in that action to assert its producer. As this case stands when it, as it comes before us, is there a claim that they, that money, the government is trying to take money from them without just compensation? That was certainly not how we understood the claim to be litigated below. That's not how the ninth circuit thought understood the claim. We've been talking about the claim involving the raisins, which fails for the capacity of reason. Is that an issue we should decide, or is that an issue that the ninth circuit should decide, whether there is a taking claim from money? That was certainly not decided below, so a remand, to the extent that this was preserved, a remand would be possible outcome there

. We think, though, that that claim suffers from separate, separate, well, structural defect. All right. If we assume for the sake of argument that there is such a claim, why does that not fall within AppFell? Well, we think that, for several reasons. First of all, the AppFell opinion that's referred to was just a plurality. It's not been adopted by the Court. Second of all, the AppFell analysis relied on this $1 for $1 for $1 concept. That was a critical part of the plurality's discussion there. And it thought that it would be simply a pointless exercise for Eastern enterprises to be required to pay the premium and then go to the Court of Federal claims and get the exact same amount of money back. Well, don't they claim that there are a whole host of reasons before you leave that? Don't they claim that the entire amount that is assessed against them is taking them? Maybe they're wrong. That the entire amount assessed against them is a taking without just compensation. That's maybe they're wrong, but isn't that a merits question? That's, they are clearly wrong about that. And I, but I think, however you characterize that defect, it defeats this $1 for $1 pointless exercise point. Well, why is that a necessary part of AppFell? Why did an AppFell just meant when we're dealing with cash, you don't have to go to the Court of Claims. So even it, you know, you can have a discussion in the district court about whether it's not $1 for $1 and it should be discounted in some way. But why should the fact that it's $1 for $1 means, why is that a requirement as opposed to just its cash? And so the question of, like, you know, handing some over, handing it all over and getting some back, that can be done in the district court rather than making somebody file a separate suit. Well, I think there were two things going on in AppFell. And there were really two distinct reasons why the plurality in AppFell thought that there was no requirement to go to the Tucker Act there. One was that it thought that in a statute like that that simply allocated benefits and burdens among private entities, Congress would not have intended there to be compensation available in the event that there were a taking. And that was actually the government's position in that case. And the AppFell plurality cited to that portion of the government's brief. And it cited cases in its discussion that weren't $1 for $1 or even cash transfer cases in which the Court had gone to the merits of taking claims without consideration of a Tucker Act remedy. Then there's the second idea, which is the cash transfer idea. And we think that the dollar for dollar aspect of that was important to the plurality's analysis because it viewed that as evidence that Congress would not have intended the Tucker Act to be deployed because it would have been a pointless exercise. So it really went to what Congress's intent was. Here, of course, for myriad reasons, that dollar for dollar analysis breaks out. So, no, but there is a similar, I mean, it seemed to me again, simplifying that underlying this, their clients think this whole raisin program is unconstitutional. What it does is it takes raisins that we grow, in effect, throws them in the river. And in the 30s, that was done to raise raisin prices. And they think as a matter of policy that just hurts people by raising prices and as a matter of constitutional law, it takes raisins from some people that belong to them and uses them for this bad purpose. Okay, that's their view of it. Something like that, isn't it? Yes. Fine. So they're making that kind of constitutional claim. Now, I would think if all you told me was that, and I knew nothing about all these statutes, I would say that's the kind of claim that should be made in a Federal District Court period, not the Court of Claims because their government isn't going to compensate them for anything. That's against the whole point of the program. Either this program is valid or it isn't. And if it isn't, some authoritative set of court should tell us that. So I have a feeling this is somehow not a right fit with the Court of Claims. Now, you explained to me why that purely instinctive feeling at this point is completely wrong. Sure. Justice Breyer, we've now shifted back to the first theory about the property, which is the raisins. What they could have done in 2002, they had been a producer of raisins and solely a producer of raisins for decades. At any point during the, between 1969 and 2002, they could have gone to the Court of Claims and said, this reserve requirement is a taking of my raisins. I want my just compensation. That is not just a remedy as Mr. McConnell suggests. It is a constitutional condition on the taking of private property for public use. As long as there's just compensation, there simply is no violation. So that's why it couldn't be what the statute meant. I think that's what Justice Breyer says. Did Congress create a statute in which we're going to take your raisins and then you can go to the Court of Claims and get your money back. I mean, that surely is not what Congress contemplated. The whole notion of the program is you can't get your money back in the Court of Claims. Now, if you're raising a constitutional objection, that's something else. That should be done in discreet court. But to say that Congress contemplated, you know, we'll take your raisins and then you sue in the Court of Claims and give you your money back. That's a weird statute. Justice Breyer, we have two responses to that

. Okay, that's their view of it. Something like that, isn't it? Yes. Fine. So they're making that kind of constitutional claim. Now, I would think if all you told me was that, and I knew nothing about all these statutes, I would say that's the kind of claim that should be made in a Federal District Court period, not the Court of Claims because their government isn't going to compensate them for anything. That's against the whole point of the program. Either this program is valid or it isn't. And if it isn't, some authoritative set of court should tell us that. So I have a feeling this is somehow not a right fit with the Court of Claims. Now, you explained to me why that purely instinctive feeling at this point is completely wrong. Sure. Justice Breyer, we've now shifted back to the first theory about the property, which is the raisins. What they could have done in 2002, they had been a producer of raisins and solely a producer of raisins for decades. At any point during the, between 1969 and 2002, they could have gone to the Court of Claims and said, this reserve requirement is a taking of my raisins. I want my just compensation. That is not just a remedy as Mr. McConnell suggests. It is a constitutional condition on the taking of private property for public use. As long as there's just compensation, there simply is no violation. So that's why it couldn't be what the statute meant. I think that's what Justice Breyer says. Did Congress create a statute in which we're going to take your raisins and then you can go to the Court of Claims and get your money back. I mean, that surely is not what Congress contemplated. The whole notion of the program is you can't get your money back in the Court of Claims. Now, if you're raising a constitutional objection, that's something else. That should be done in discreet court. But to say that Congress contemplated, you know, we'll take your raisins and then you sue in the Court of Claims and give you your money back. That's a weird statute. Justice Breyer, we have two responses to that. First of all, these claims have been litigated in the Court of Claims. The Evans case, the Kal Almond case, both of which we cite in our brief. Raisin producers, or then the Kal Almond case, it was an Almond producer, went to the Court of Claims and said, this reserve requirement is a taking. I want my money. And they lost the Court of Claims correctly in our view held that there was no taking. That said, we do agree that it is actually a close question whether Congress would have intended compensation to be provided in a situation like this one. In the event the Raisin Reserve program were found to be a taking. We've said in our brief, we do view that as a close question. Although on balance, we think that the proper answer is that there is a remedy, or sorry, there is a just compensation available in the Court of Claims. But there are cases that say that. You think that's a close question? You think that the way the statute is supposed to operate, once it is held that this is an unconstitutional taking, is that every year the government takes the raisins, and every year the grower goes to the Court of Claims and gets the money back for the raisins. Is that the program that Congress anticipated? Well, we do agree that it's a close question for the reason you are. That's a crazy statute. Well, every year we are going to take raisins, and every year we are going to pay you in the Court of Claims. What's the purpose of that? Well, of course, Congress didn't think this was a taking, and it built considerable administrative flexibility into the statute, and at the end of the day, that's what convinces us that Congress would not have intended to preclude compensation in the Court of Claims and to opt for an injunction instead, because the Secretary of Agriculture has wide latitude to adjust. So the conversation wouldn't be paid year after year as your hypotheticals suggested, that program could be adjusted. A reserve requirement is only one way of complying with the kind of supply, control, provisions of the statute. There are any number of options available, but I'd also point out that in this Court's precedent in Monsanto and regional rail, those were both statutory schemes which had their own compensation mechanism. As does this one, this reserve raisins, the producers do get paid sometimes for them in a smaller amount. Those were cases in which the statutes did have compensation mechanisms, and this Court held that the Tucker Act was available as a kind of a supplementary compensation in the event that- Mr. Palmo, am I incorrect in thinking that the government is saying handlers cannot raise the constitutionality of the raised and mocked being order. You told us that the producers can go to the Court of Claims. What about the handlers? They're at least being fined for violating the Act, and it's their position that the whole thing is unconstitutional. Can they raise the constitutionality of the whole arrangement defensively, or they simply can't raise the constitutionality of the Act? Justice Ginsburg, I think this goes back again to the property question. If the claim is that it's unconstitutional because it takes producers' property, they can't raise that in this proceeding. If the property is the raisins, they can't raise that in this proceeding. They need to comply and go to the Court of Claims for compensation, which means there has been no in the event there is a taking, it's a constitutional taking because just compensation is provided. If the claim is that the money that was taken from me, the fine, that itself is a taking, then we think that claim can and must be brought in the context of the AMAA proceeding. That was not how the Court of Appeals understood the claim here to be, and there's a violation of law can be articulated as a taking of the lawbreakers' property without just compensation

. First of all, these claims have been litigated in the Court of Claims. The Evans case, the Kal Almond case, both of which we cite in our brief. Raisin producers, or then the Kal Almond case, it was an Almond producer, went to the Court of Claims and said, this reserve requirement is a taking. I want my money. And they lost the Court of Claims correctly in our view held that there was no taking. That said, we do agree that it is actually a close question whether Congress would have intended compensation to be provided in a situation like this one. In the event the Raisin Reserve program were found to be a taking. We've said in our brief, we do view that as a close question. Although on balance, we think that the proper answer is that there is a remedy, or sorry, there is a just compensation available in the Court of Claims. But there are cases that say that. You think that's a close question? You think that the way the statute is supposed to operate, once it is held that this is an unconstitutional taking, is that every year the government takes the raisins, and every year the grower goes to the Court of Claims and gets the money back for the raisins. Is that the program that Congress anticipated? Well, we do agree that it's a close question for the reason you are. That's a crazy statute. Well, every year we are going to take raisins, and every year we are going to pay you in the Court of Claims. What's the purpose of that? Well, of course, Congress didn't think this was a taking, and it built considerable administrative flexibility into the statute, and at the end of the day, that's what convinces us that Congress would not have intended to preclude compensation in the Court of Claims and to opt for an injunction instead, because the Secretary of Agriculture has wide latitude to adjust. So the conversation wouldn't be paid year after year as your hypotheticals suggested, that program could be adjusted. A reserve requirement is only one way of complying with the kind of supply, control, provisions of the statute. There are any number of options available, but I'd also point out that in this Court's precedent in Monsanto and regional rail, those were both statutory schemes which had their own compensation mechanism. As does this one, this reserve raisins, the producers do get paid sometimes for them in a smaller amount. Those were cases in which the statutes did have compensation mechanisms, and this Court held that the Tucker Act was available as a kind of a supplementary compensation in the event that- Mr. Palmo, am I incorrect in thinking that the government is saying handlers cannot raise the constitutionality of the raised and mocked being order. You told us that the producers can go to the Court of Claims. What about the handlers? They're at least being fined for violating the Act, and it's their position that the whole thing is unconstitutional. Can they raise the constitutionality of the whole arrangement defensively, or they simply can't raise the constitutionality of the Act? Justice Ginsburg, I think this goes back again to the property question. If the claim is that it's unconstitutional because it takes producers' property, they can't raise that in this proceeding. If the property is the raisins, they can't raise that in this proceeding. They need to comply and go to the Court of Claims for compensation, which means there has been no in the event there is a taking, it's a constitutional taking because just compensation is provided. If the claim is that the money that was taken from me, the fine, that itself is a taking, then we think that claim can and must be brought in the context of the AMAA proceeding. That was not how the Court of Appeals understood the claim here to be, and there's a violation of law can be articulated as a taking of the lawbreakers' property without just compensation. I haven't seen any case that stands for that proposition, and that would be very remarkable. But then you just lose on the merits. What the Ninth Circuit says, they can't even argue this. Well, Justice Kennedy, the Ninth Circuit didn't argue that. I thought that what we were going to decide was whether or not, assuming you can go to the Court of Claims, you must go to the Court of Claims. Can you prefer to wait, have a penalty assessed against you, and say this is unconstitutional that it's a taking? Your position is you can't say that. I don't understand why. Other than if you want to talk about Williamson and Soforth, I can get into that. But Justice Kennedy, the Ninth Circuit didn't understand the taking claim to be that the fine for what my violation of law is a taking of my money. That's not how the Ninth Circuit understood the claim, so they didn't analyze it in that way. They understood that the claim to be that the taking of producers' raisins is a taking. And we lawfully resisted it because it was an unconstitutional taking. The Ninth Circuit correctly rejected that because there was nothing unconstitutional about it because it was not without just compensation. The Tucker Act is the just compensation. This Court has held something. Justice, the jumpensation I take it in the program is supposed to come from the fact that raisin prices go up. Well, the poor children with their noses pressed to the glass because they can't pay the raisins. They're parents are the ones who are paying the compensation. And it's certainly not the taxpayer. He's not going to pay. And maybe the other producers will pay some who get jipped or something. I don't know. But I can't believe that Congress wanted the taxpayers to pay for a program that's going to mean they have to pay higher prices as consumers. Just inspiring. That goes to the merits of it. No, no, no, it doesn't go to the merits. It goes to whether or not it makes sense to think that the Court of Claims has something to say about this. And suppose we did this. Suppose we said, given the fact that you filed your thing, whatever it was, you know, laid in the light of this very enlightening discussion, which has been helpful

. I haven't seen any case that stands for that proposition, and that would be very remarkable. But then you just lose on the merits. What the Ninth Circuit says, they can't even argue this. Well, Justice Kennedy, the Ninth Circuit didn't argue that. I thought that what we were going to decide was whether or not, assuming you can go to the Court of Claims, you must go to the Court of Claims. Can you prefer to wait, have a penalty assessed against you, and say this is unconstitutional that it's a taking? Your position is you can't say that. I don't understand why. Other than if you want to talk about Williamson and Soforth, I can get into that. But Justice Kennedy, the Ninth Circuit didn't understand the taking claim to be that the fine for what my violation of law is a taking of my money. That's not how the Ninth Circuit understood the claim, so they didn't analyze it in that way. They understood that the claim to be that the taking of producers' raisins is a taking. And we lawfully resisted it because it was an unconstitutional taking. The Ninth Circuit correctly rejected that because there was nothing unconstitutional about it because it was not without just compensation. The Tucker Act is the just compensation. This Court has held something. Justice, the jumpensation I take it in the program is supposed to come from the fact that raisin prices go up. Well, the poor children with their noses pressed to the glass because they can't pay the raisins. They're parents are the ones who are paying the compensation. And it's certainly not the taxpayer. He's not going to pay. And maybe the other producers will pay some who get jipped or something. I don't know. But I can't believe that Congress wanted the taxpayers to pay for a program that's going to mean they have to pay higher prices as consumers. Just inspiring. That goes to the merits of it. No, no, no, it doesn't go to the merits. It goes to whether or not it makes sense to think that the Court of Claims has something to say about this. And suppose we did this. Suppose we said, given the fact that you filed your thing, whatever it was, you know, laid in the light of this very enlightening discussion, which has been helpful. We think this is the kind of program and challenge to the program where there isn't going to be a remedy really in the Court of Claims. And they ought to go ahead in the ninth circuit and in light of all these enlightening things that will write, you just decide the merits. Is that now? Well, I'm sure you're going to say that absolutely terrible. It won't work at all. So tell me why not. Well, Your Honor, of course, the consequence of that is they reinstate our prior victory in the prior panel opinion. No, no, we'd say we would say, well, given the way that we've talked about the program, perhaps it's best to consider this matter fully. Well, they did consider the matter fully. In the initial opinion, they said there's no taking here. So all of the discussion we're having here is about, is predicated on the idea that if there were a taking, would compensation be available and played? Excuse me. Can I? We agree there's no taking. All right. It almost seems to me, and I'll ask Mr. McConnell when he gets up at Rebuttal, that there is some sort of due process challenge going on here. It's been created by the labels they did in this new business venture. In the normal situation, the handler I'm being told would actually have a title to the raisins, and they would pay the producers for the raisins. So there would be property taking in that situation where the handler is actually owned the property. Would they be able to raise a taking defense? No, because of the way that the statute and the regulatory program works. If the handler is actually buying raisins from the producer, the handler never takes title to the reserve raisins. And he doesn't pay for the reserve raisins. He takes title to the free tonnage raisins, and the title to the reserve raisins passes as a matter of law from the producer to the raisin administrative committee. The handler never owns those raisins. So they are missing a business opportunity because they can't take title to those raisins. And yet you're asking. They would never pay for those raisins because they can't take title. They can't lawfully take title to those. Now this really does sound to me, and I think that both Justice Scalia and Breyer now I'm being more and more convinced. There has to be a place to challenge the scheme. Whether there's a taking's claim for the handler, because the handler is being asked to do things

. We think this is the kind of program and challenge to the program where there isn't going to be a remedy really in the Court of Claims. And they ought to go ahead in the ninth circuit and in light of all these enlightening things that will write, you just decide the merits. Is that now? Well, I'm sure you're going to say that absolutely terrible. It won't work at all. So tell me why not. Well, Your Honor, of course, the consequence of that is they reinstate our prior victory in the prior panel opinion. No, no, we'd say we would say, well, given the way that we've talked about the program, perhaps it's best to consider this matter fully. Well, they did consider the matter fully. In the initial opinion, they said there's no taking here. So all of the discussion we're having here is about, is predicated on the idea that if there were a taking, would compensation be available and played? Excuse me. Can I? We agree there's no taking. All right. It almost seems to me, and I'll ask Mr. McConnell when he gets up at Rebuttal, that there is some sort of due process challenge going on here. It's been created by the labels they did in this new business venture. In the normal situation, the handler I'm being told would actually have a title to the raisins, and they would pay the producers for the raisins. So there would be property taking in that situation where the handler is actually owned the property. Would they be able to raise a taking defense? No, because of the way that the statute and the regulatory program works. If the handler is actually buying raisins from the producer, the handler never takes title to the reserve raisins. And he doesn't pay for the reserve raisins. He takes title to the free tonnage raisins, and the title to the reserve raisins passes as a matter of law from the producer to the raisin administrative committee. The handler never owns those raisins. So they are missing a business opportunity because they can't take title to those raisins. And yet you're asking. They would never pay for those raisins because they can't take title. They can't lawfully take title to those. Now this really does sound to me, and I think that both Justice Scalia and Breyer now I'm being more and more convinced. There has to be a place to challenge the scheme. Whether there's a taking's claim for the handler, because the handler is being asked to do things. But the handler's property is not being taken, and that's critical. There are separate taking's claims that handlers have advanced, that could be asserted through this process. For instance, there was a case called Lyon raisins from the Federal Circuit that we cite in our brief, in which the issue was that the handler provided bins to store the raisins, and he didn't get his bins back. That was a handler taking the claim, and that had to be asserted in the context of this handler review scheme. But the handler doesn't own the raisins under this scheme. That's a marriage question again. I mean, it's not a question of whether you can resist on the basis of the taking's claim. It's a question of whether you're going to win. Now Justice Scalia, I think it goes to the scope, the capacity question that we were talking about before, because the statute is quite clear in Section 608C-13B that this scheme does not regulate producers in their capacity as producers. And if someone wants to take on both roles, they will be regulated only as a handler. So the regulatory obligations that apply to petitioners when they adopted this business model, or handler only regulatory obligations, and then this is a handler judicial review proceeding. It's a very narrow means of decision here that avoids some of these kind of conceptual questions about the nature of the taking's clause, which is that this claim simply doesn't belong in this proceeding. But there's no unfairness or no due process issue here at all, because they, in 2002, when petitioners decided to engage in this, these regulatory violations in order to secure an unfair advantage over their competitors, as was found by the ALJA at JAA-41. At that point, they could have sought compensation for the past six years of raisins that they had provided. They didn't do it. I don't understand why they didn't do it. They left that claim on the table. And to the extent they wanted to claim going forward, they could have continued to use compliant handlers and sued every month for compensation in the Court of Claims. Did I understand you to say a couple of minutes ago that if the case were remanded, you would be entitled to win on the reasoning of the panel opinion? The prior panel opinion. If there was a remand on the basis that the Ninth Circuit misunderstood this as a jurisdictional Article III defect, and then the Ninth Circuit were to find waiver, what the Ninth Circuit presumably would do would be reinstate its first panel decision, which we think was also correct and held that there was no taking here. There it is. So, Mr. Palmore, what would be wrong? Would anything be wrong with a disposition of this Court that went something like this? Everybody agrees that this is not a jurisdictional issue, including the government, so they got that wrong. Now, as to this whole business about the Tucker Act and whether the Tucker Act provides a remedy, the government only started talking about that in a petition for re-hearing on-bunk, and the government can't do that. You know, it can't introduce an argument like this in a petition for re-hearing on-bunk, so that's waived. And now, the Ninth Circuit can go and try to figure out whether this marketing order is a taking or is just the world's most outdated law. That would certainly be an available option, or the Ninth Circuit could decide for itself whether there had been a waiver. But there's a separate issue, and there's this capacity issue, which is a separate point that the Ninth Circuit made at GA305 when it pointed out that this was a producer claim, and that's something that was strictly a producer claim, and it wasn't a fit for this handler review, actually, and that's something that could also be considered on remand. But the consequence of this would be for the Court to impose if it found a waiver to rule for us for separate merits reasons

. But the handler's property is not being taken, and that's critical. There are separate taking's claims that handlers have advanced, that could be asserted through this process. For instance, there was a case called Lyon raisins from the Federal Circuit that we cite in our brief, in which the issue was that the handler provided bins to store the raisins, and he didn't get his bins back. That was a handler taking the claim, and that had to be asserted in the context of this handler review scheme. But the handler doesn't own the raisins under this scheme. That's a marriage question again. I mean, it's not a question of whether you can resist on the basis of the taking's claim. It's a question of whether you're going to win. Now Justice Scalia, I think it goes to the scope, the capacity question that we were talking about before, because the statute is quite clear in Section 608C-13B that this scheme does not regulate producers in their capacity as producers. And if someone wants to take on both roles, they will be regulated only as a handler. So the regulatory obligations that apply to petitioners when they adopted this business model, or handler only regulatory obligations, and then this is a handler judicial review proceeding. It's a very narrow means of decision here that avoids some of these kind of conceptual questions about the nature of the taking's clause, which is that this claim simply doesn't belong in this proceeding. But there's no unfairness or no due process issue here at all, because they, in 2002, when petitioners decided to engage in this, these regulatory violations in order to secure an unfair advantage over their competitors, as was found by the ALJA at JAA-41. At that point, they could have sought compensation for the past six years of raisins that they had provided. They didn't do it. I don't understand why they didn't do it. They left that claim on the table. And to the extent they wanted to claim going forward, they could have continued to use compliant handlers and sued every month for compensation in the Court of Claims. Did I understand you to say a couple of minutes ago that if the case were remanded, you would be entitled to win on the reasoning of the panel opinion? The prior panel opinion. If there was a remand on the basis that the Ninth Circuit misunderstood this as a jurisdictional Article III defect, and then the Ninth Circuit were to find waiver, what the Ninth Circuit presumably would do would be reinstate its first panel decision, which we think was also correct and held that there was no taking here. There it is. So, Mr. Palmore, what would be wrong? Would anything be wrong with a disposition of this Court that went something like this? Everybody agrees that this is not a jurisdictional issue, including the government, so they got that wrong. Now, as to this whole business about the Tucker Act and whether the Tucker Act provides a remedy, the government only started talking about that in a petition for re-hearing on-bunk, and the government can't do that. You know, it can't introduce an argument like this in a petition for re-hearing on-bunk, so that's waived. And now, the Ninth Circuit can go and try to figure out whether this marketing order is a taking or is just the world's most outdated law. That would certainly be an available option, or the Ninth Circuit could decide for itself whether there had been a waiver. But there's a separate issue, and there's this capacity issue, which is a separate point that the Ninth Circuit made at GA305 when it pointed out that this was a producer claim, and that's something that was strictly a producer claim, and it wasn't a fit for this handler review, actually, and that's something that could also be considered on remand. But the consequence of this would be for the Court to impose if it found a waiver to rule for us for separate merits reasons. We do view the Tucker Act, the failure to seek just compensation as a merits defect in the petitioner's claim here. So even putting this capacity problem aside, there's simply no defense. Mr. McConnell says that this can be raised as a defense, but there is no defense. If all you show is that there has been a taking of private property for public reasons. What is the whole stop? There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. On the regulatory scheme. That petitioners were handlers. And in fact, there is a surprisingly, I just wanted to look at the word acquire. A choir is defined to include a number of things, including to possess. And a handler is anyone who sells raisins. There was no mystery about this, and in fact, it pages 8 through 11 of our brief. We cite communication after communication where U.S. So that sounds like a good time. Yes, it can. It can. It can. It can

. We do view the Tucker Act, the failure to seek just compensation as a merits defect in the petitioner's claim here. So even putting this capacity problem aside, there's simply no defense. Mr. McConnell says that this can be raised as a defense, but there is no defense. If all you show is that there has been a taking of private property for public reasons. What is the whole stop? There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. There is no. On the regulatory scheme. That petitioners were handlers. And in fact, there is a surprisingly, I just wanted to look at the word acquire. A choir is defined to include a number of things, including to possess. And a handler is anyone who sells raisins. There was no mystery about this, and in fact, it pages 8 through 11 of our brief. We cite communication after communication where U.S. So that sounds like a good time. Yes, it can. It can. It can. It can. It can. It can. It can. It can. It can. It can. It can. It can. It can. It can. I have a number of read to talk about, pretty ничего to talk about, this isn't very high. that there could be a recommendation on Point D. So there was, I was, sort of primarily in one decree in a rest sermon. And there were cases like this in an evaluation lake. that claim at every level twice within the Department of Agriculture in the District Court and the Court of Appeals. They lost on that regulatory claim. This wasn't a good faith misunderstanding. If you look at JAA-41, the ALJ found that this was a willful and intentional knowing violation of regulatory requirements because they were able to undercut their competitors by not playing by the rules. So this doesn't present any kind of due process. No, but still then they might, if there are acquires. They are acquires, okay? They think this program is unconstitutional because it takes some other people's property. Right? So those other people are in a very special relation to them. Those other people are really close. And it may be they have standing to assert those other people's claims. And if they do have standing to assert those other people's claims, why can't they make the argument that way? I disagree that they have standing to make those other people's claims. And also Petitius haven't argued, haven't made any third-party standing argument here. But this Court's requirements are quite strict for third-party standing. You have to have a close relationship. And I don't think a mere arms length commercial relationship would have

. It can. It can. It can. It can. It can. It can. It can. It can. It can. It can. I have a number of read to talk about, pretty ничего to talk about, this isn't very high. that there could be a recommendation on Point D. So there was, I was, sort of primarily in one decree in a rest sermon. And there were cases like this in an evaluation lake. that claim at every level twice within the Department of Agriculture in the District Court and the Court of Appeals. They lost on that regulatory claim. This wasn't a good faith misunderstanding. If you look at JAA-41, the ALJ found that this was a willful and intentional knowing violation of regulatory requirements because they were able to undercut their competitors by not playing by the rules. So this doesn't present any kind of due process. No, but still then they might, if there are acquires. They are acquires, okay? They think this program is unconstitutional because it takes some other people's property. Right? So those other people are in a very special relation to them. Those other people are really close. And it may be they have standing to assert those other people's claims. And if they do have standing to assert those other people's claims, why can't they make the argument that way? I disagree that they have standing to make those other people's claims. And also Petitius haven't argued, haven't made any third-party standing argument here. But this Court's requirements are quite strict for third-party standing. You have to have a close relationship. And I don't think a mere arms length commercial relationship would have. How have standing, could they raise the claim? If you say no. Well, they certainly have standing as producers to raise the claim. That's the sum they have standing, could they raise the claim? Yes. That this is an unconstitutional taking. In the Court of Claims, absolutely. As per noes. No. In the administrative proceeding, where there are charges, where there are penalties being assessed against them. I think that they would have standing, but it's still a claim that's beyond the scope of this narrow, specific judicial review proceeding. I think it's a different problem. I have to say, I think it comes with less than good grace for you to criticize the other side for not having raised a particular argument. But I do want to clarify that you have no objection at this point for reversing the Ninth Circuit on the ground that they aired and saying that this should have dismissed on jurisdictional grounds. Well, I'm not going to resist that too strenuously. I'm not, but I think if they did decide the question, they decided it correctly. It was a threshold defect. Their analysis was all correct. So I think that's before the Court. But yes, we frankly acknowledge and we acknowledged in our brief that we did not. We did suggest below that this was a jurisdictional defect. Ninth Circuit Authority said that it was, and we relied on that. We now believe that it's best understood not as a jurisdictional defect, but as a substantive defect in the claims. Not simply a choice of remedies as you, as Petitioner suggested, because choice of remedies suggests that there's been a constitutional wrong, and then we need to decide what remedy is going to be available in a function or damages. The short answer is, yes, reach the merits only if I win. That's really what you want us to do. Well, do we think you can reach some of the merits? We think that the narrow disposition here is the capacity to ask you this question, because do you want us to reach the merits if we're going to have you lose? You got to want one or the other. Do you want us to reach the merits? Period is really the question. Yeah, our position is that we're not acquiescing in a remand. We think you can affirm, and you should affirm. No

. How have standing, could they raise the claim? If you say no. Well, they certainly have standing as producers to raise the claim. That's the sum they have standing, could they raise the claim? Yes. That this is an unconstitutional taking. In the Court of Claims, absolutely. As per noes. No. In the administrative proceeding, where there are charges, where there are penalties being assessed against them. I think that they would have standing, but it's still a claim that's beyond the scope of this narrow, specific judicial review proceeding. I think it's a different problem. I have to say, I think it comes with less than good grace for you to criticize the other side for not having raised a particular argument. But I do want to clarify that you have no objection at this point for reversing the Ninth Circuit on the ground that they aired and saying that this should have dismissed on jurisdictional grounds. Well, I'm not going to resist that too strenuously. I'm not, but I think if they did decide the question, they decided it correctly. It was a threshold defect. Their analysis was all correct. So I think that's before the Court. But yes, we frankly acknowledge and we acknowledged in our brief that we did not. We did suggest below that this was a jurisdictional defect. Ninth Circuit Authority said that it was, and we relied on that. We now believe that it's best understood not as a jurisdictional defect, but as a substantive defect in the claims. Not simply a choice of remedies as you, as Petitioner suggested, because choice of remedies suggests that there's been a constitutional wrong, and then we need to decide what remedy is going to be available in a function or damages. The short answer is, yes, reach the merits only if I win. That's really what you want us to do. Well, do we think you can reach some of the merits? We think that the narrow disposition here is the capacity to ask you this question, because do you want us to reach the merits if we're going to have you lose? You got to want one or the other. Do you want us to reach the merits? Period is really the question. Yeah, our position is that we're not acquiescing in a remand. We think you can affirm, and you should affirm. No. However, I do recognize. Do you think we should reach the merits, which is a very different question? Well, it depends on what you mean by merits. Okay. Only if you win. There's the undertaking, no. There's the underlying kind of takings claim that there was, was there a taking here at all, and that's not before the court. I don't think anyone suggests that that's before the court. But we do think that there are a series of other threshold defects in the claim that this court could rely on. Thank you, Mr. Palmore. Mr. McConnell, you have three minutes remaining. I'd like to make two quick points. One is that I believe that the government has essentially conceded here in this argument, and in their brief, that the Tucker Act does not apply. They have told us that the Tucker Act does not apply in page 50 and repeated here when Congress could not have contemplated a compensation. Now, in a debt, and their only answer to that is to say, first, the Congress didn't think it would be a taking, which in regional rail, this Court said, is not the question. And secondly, that if there's one, we should get paid once, compensation, once, and then the administrator is going to cancel the program, which is no answer at all. Either the statute contemplates compensation for everybody or it contemplates it for nobody, I think they have effectively conceded that the Tucker Act does not apply. Well, they've conceded that it doesn't apply to handlers. Two handlers. And in my opinion, the fact that there is a second issue I wanted to talk about is this capacity issue. Certainly, we have standing, it's not third-party standing, all of the money comes out of our pocket. Yes, we have standing. And secondly, we certainly, and then that is in our capacity as handler, essentially the Department of Agriculture's view, is that during those couple of days when the raisins are going through our packing plant, that we acquired them and possessed them during those couple of days, and that we should have given them their share. That's raisins, that's not money, but by the time they get around to enforcing that and so forth, the raisins are gone, and now the money stands in for the raisins. But that is a taking claim. We think it's a straightforward taking claim under Norwood and Missouri Pacific Railroad. That's a merits question, but in any event, it is not a problem of capacity. Whatever might be that taking, that taking is in the capacity as a handler

. Those are my two points. Thank you. Thank you, Council. The case is submitted