[00:00:00] Speaker 02:
Our last case for today is Boyd versus US, appeal number 23-2104.

[00:00:06] Speaker 02:
Is your name pronounced Georgievich?

[00:00:11] Speaker 02:
Georgievich.

[00:00:13] Speaker 02:
Georgievich.

[00:00:15] Speaker 02:
OK.

[00:00:15] Speaker 02:
Miss Georgievich, please proceed.

[00:00:18] Speaker 01:
Thank you, Your Honor.

[00:00:20] Speaker 01:
Good morning, and may it please the court.

[00:00:22] Speaker 01:
My name is Nada Georgievich, and I represent Plaintiffs Lester Bonner and Princess Williams

[00:00:27] Speaker 01:
to thousands of hardworking farmers who have been devastated by the government reneging on its obligation to pay off their FSA loans.

[00:00:35] Speaker 01:
The trial court's decision here should be reversed for two reasons.

[00:00:39] Speaker 01:
Under the plain language of section 1005 of ARPA, the government was legally obligated to pay off my client's FSA loans.

[00:00:46] Speaker 01:
The second reason is recognizing that obligation.

[00:00:50] Speaker 01:
The court, or the government rather, entered into binding agreements with my clients

[00:00:54] Speaker 01:
and all of the other socially disadvantaged farmers who checked option one, I accept, when presented with the terms and conditions of the government's loan repayment offer.

[00:01:05] Speaker 01:
Now, main community health options versus US is dispositive here.

[00:01:10] Speaker 01:
There, the Supreme Court held that Congress created an enforceable legal obligation on the part of the government through Congress's choice of language in section 1342

[00:01:21] Speaker 01:
of the Affordable Care Act.

[00:01:23] Speaker 01:
Specifically, that section stated that the Secretary shall pay the eligible insurance plans their certain stated amounts.

[00:01:33] Speaker 01:
Congress used that same language in section 1005 of ARPA here, stating that the Secretary shall provide a payment in an amount up to 120 percent of the outstanding FSA loans held by the socially disadvantaged farmers.

[00:01:48] Speaker 01:
There's no discretion there.

[00:01:50] Speaker 01:
They absolutely must do it.

[00:01:52] Speaker 01:
It is a binding obligation.

[00:01:54] Speaker 01:
And as the Supreme Court pointed out in Maine community health options, the first sign that the statute imposed an obligation is its mandatory language.

[00:02:04] Speaker 00:
Are you arguing that your clients have a basis for a claim other than that there is a contract with the government?

[00:02:12] Speaker 00:
Is that your first argument?

[00:02:13] Speaker 00:
I didn't fully understand.

[00:02:15] Speaker 00:
There's a contractual basis, and now there's something else?

[00:02:19] Speaker 01:
That mandatory language both supports the contract and supports an argument that there is an independent legal obligation to pay off the loans.

[00:02:32] Speaker 01:
Our argument is that the government did that here through the form of a contract, which they've since breached.

[00:02:37] Speaker 01:
But that statute itself creates a legal binding obligation.

[00:02:40] Speaker 00:
Was the claim below anything other than breach of contract?

[00:02:44] Speaker 01:
The claim below was breach of contract.

[00:02:48] Speaker 01:
However,

[00:02:49] Speaker 02:
But you're limited to that on appeal.

[00:02:50] Speaker 02:
You're limited to the argument you're raised below on appeal, right?

[00:02:55] Speaker 01:
This court has the discretion to consider the argument now if it chooses to or to remand the case in order to have the court below consider it if it was not considered.

[00:03:04] Speaker 02:
Actually, we don't have discretion to consider arguments that weren't made to the trial court.

[00:03:15] Speaker 01:
We cited Board of Supervisors of Isoquina County versus Mississippi versus the United States, a decision by this court for the proposition that it could be remanded for the court below to consider if this court didn't consider it.

[00:03:31] Speaker 01:
But also, as the US Supreme Court found in Singleton versus Wolf, this court has discretion in general to address any argument that it believes has been developed here.

[00:03:45] Speaker 01:
The violation of section 1005 was included in our pleadings and was addressed.

[00:03:50] Speaker 01:
It is correct that it was addressed specifically from the angle of contract.

[00:03:54] Speaker 01:
But the obligation remains.

[00:04:00] Speaker 00:
So I really want to make sure I understand.

[00:04:03] Speaker 00:
Your argument today is even if we were to agree with the trial court

[00:04:11] Speaker 00:
that there is not a contract here between your clients and the United States government, you still have a claim that you would like to press and that you think you presented to the trial court?

[00:04:27] Speaker 01:
We did present that Section 1005 had been violated.

[00:04:33] Speaker 01:
And again, we did that in the context of saying,

[00:04:36] Speaker 01:
The government chose to effectuate Section 1005 through a contractual offer.

[00:04:41] Speaker 01:
But we did present the argument that Section 1005 had been violated.

[00:04:45] Speaker 01:
And as the Supreme Court held, again, in Maine community health options, that mandatory language in the statute creates a binding obligation on the government to make.

[00:04:57] Speaker 00:
Is one of the things you're asking us to decide, Court of Appeals, even if you agree there's not a contract here,

[00:05:06] Speaker 00:
my clients still have a claim.

[00:05:08] Speaker 00:
Is that part of what you're asking us to decide?

[00:05:13] Speaker 00:
If I agree?

[00:05:15] Speaker 01:
It is part of what we're arguing.

[00:05:16] Speaker 01:
And again, to the extent the court does not feel it has the authority to make that decision, the court does have the authority nonetheless to remand the case to allow us to amend our complaint to add that argument directly if the court feels that it has not been presented before.

[00:05:31] Speaker 02:
Can you tell me also where that argument is made

[00:05:35] Speaker 02:
in your opening brief, because I'm looking, for example, on page three of your brief.

[00:05:41] Speaker 02:
And it says, a statement of issues, whether the court of federal claims erred as matter of law in finding that plaintiffs failed to allege the necessary elements of contract formation and thereby dismissing a complaint.

[00:05:53] Speaker 02:
So it doesn't seem to raise other issues.

[00:05:55] Speaker 01:
It raises the issue of contract formation.

[00:05:57] Speaker 01:
And again, it raises the issue of section 1005 as Congress's

[00:06:04] Speaker 01:
mandate that the payments be made and Authorization for the secretary of agriculture to effectuate that mandate in whatever Manner he felt problem is I don't see it in your brief So is there a particular page that you would want to cite to me?

[00:06:18] Speaker 02:
I want to make sure I fully consider your argument And so if it's your position that it's somewhere in this blue brief.

[00:06:24] Speaker 01:
I want to know where it is Stated in the exact way I'm presenting it today.

[00:06:29] Speaker 01:
That is not again in our brief.

[00:06:31] Speaker 01:
It is it is melded together, okay?

[00:06:34] Speaker 03:
Which option under the FSA 2601 form should we focus on?

[00:06:44] Speaker 03:
Focus me on which one.

[00:06:46] Speaker 01:
So our clients.

[00:06:48] Speaker 03:
It's option one, right?

[00:06:49] Speaker 01:
Yes.

[00:06:49] Speaker 01:
Our clients in the putative class are all farmers who checked option one.

[00:06:53] Speaker 03:
So you're citing the main community case, which I think says the government, there's a specific government promise

[00:07:04] Speaker 03:
to make payment.

[00:07:06] Speaker 03:
And my question is, in option one, could you point me to the language where that promise is articulated?

[00:07:13] Speaker 01:
I can point you.

[00:07:14] Speaker 01:
Let me pull up the form.

[00:07:21] Speaker 01:
If you take a look, so there's three copies of FSA 2601 part of the appendix.

[00:07:26] Speaker 01:
One is the general one.

[00:07:28] Speaker 01:
And then there was one each for a client.

[00:07:30] Speaker 01:
So I'm just going to focus on one of them.

[00:07:32] Speaker 01:
Language is essentially similar.

[00:07:34] Speaker 01:
So if you take a look at appendix 59.

[00:07:37] Speaker 03:
I have the language in front of me.

[00:07:40] Speaker 01:
So you have to look both at option one and at the language above it, which is what leads to the three options.

[00:07:48] Speaker 01:
And what it states there is that FSA records show that you had a direct loan, and that you are eligible for payment, and that

[00:07:57] Speaker 01:
In the next line there, all of your eligible direct loan debt will be paid in full.

[00:08:02] Speaker 01:
So that's an acknowledgement of the obligation.

[00:08:05] Speaker 03:
And that, the will be paid in full, is what you want us to focus on regarding a specific promise by the government to pay that's contractually binding?

[00:08:16] Speaker 01:
Both the language in the statute, which created the obligation, and then yes, the language of FSA 2601.

[00:08:21] Speaker 03:
Will be paid in full.

[00:08:23] Speaker 01:
Will be paid in full.

[00:08:24] Speaker 01:
There's more, but that's the first option.

[00:08:27] Speaker 01:
It mentions that constant being paid in full several times.

[00:08:35] Speaker 01:
There's also language on Appendix 60 specifically acknowledging that

[00:08:56] Speaker 01:
If payments are still due on the borrower's loan, they might receive an automated payment reminder, but that they understand that they can disregard the reminder letter for any loans that are listed on the ARPA calculation worksheet again.

[00:09:09] Speaker 03:
How does that obligate the government?

[00:09:11] Speaker 01:
It shows that the government was so clear that if you accepted this offer, it was going to pay your loan off in full, that it was telling you, even if our automated system is still sending you notices, you can disregard that because you don't actually owe anything.

[00:09:33] Speaker 01:
And then again, both the notices in the Federal Register that describe Section 1005 and FSA 2601 and internal communications the government made to its own employees also describe.

[00:09:46] Speaker 01:
This form is an offer letter that needs to be either accepted by the borrower, declined by the borrower, or if they have questions or want to challenge the calculation amount, they can do that before then having to make a decision as to accept or decline.

[00:10:03] Speaker 01:
And to the extent someone did challenge that calculation, employees were also instructed that if it was determined that the amount was incorrect, a new FSA 2601 had to be issued with that corrected amount listed and then that became the actual offer that was presented to the buyer that they then had the right to accept or decline.

[00:10:31] Speaker 01:
Congress placed no limits on how the Secretary of Agriculture fulfilled the mandate in Section 1005.

[00:10:39] Speaker 01:
And as we argue here, he chose to send contractual offers to eligible socially disadvantaged farmers.

[00:10:46] Speaker 00:
Do you disagree that there are other portions of ARPA that expressly delegate contractual

[00:10:56] Speaker 00:
authority, the authority for the secretary to enter into contracts and that's missing from Section 1005.

[00:11:01] Speaker 01:
I do agree that there are other sections of ARPA that specifically reference contracting.

[00:11:07] Speaker 01:
I disagree that the obvious conclusion from that is that that authority is missing here.

[00:11:13] Speaker 01:
Our argument is that Section 1005 Congress put the mandate in and gave the secretary essentially complete discretion.

[00:11:21] Speaker 01:
as to how to effectuate that mandate.

[00:11:23] Speaker 01:
They didn't say it must be done like A, B, or C. And in this case, he chose to do it through contracts.

[00:11:28] Speaker 01:
And that also makes sense.

[00:11:31] Speaker 01:
The FSA loan program in general involves contracts.

[00:11:34] Speaker 01:
All of the loans to begin with are contracts.

[00:11:37] Speaker 01:
And a program to repay those loans and to essentially extinguish that debt, it's perfectly reasonable that the same entity that had the authority to enter into those contracts would need contractual authority

[00:11:50] Speaker 01:
need to have the authority to enter into contracts to extinguish that same debt.

[00:12:00] Speaker 01:
So here each eligible socially disadvantaged farmer was sent a form FSA 2601 specific to them, addressed to their name, specifically listed the eligible loans that they had, and then again asked them to choose.

[00:12:14] Speaker 01:
I accept, I decline, or I need to talk to you further first.

[00:12:18] Speaker 01:
My clients in the punitive class all accepted that offer.

[00:12:22] Speaker 00:
I have one other question for you.

[00:12:24] Speaker 00:
At page three of the government's brief, they say that Congress has the authority to adjust the existence and scope of financial assistance programs as it sets public policy for our nation.

[00:12:37] Speaker 00:
They don't cite anything there, but do you agree with that in principle?

[00:12:41] Speaker 00:
And if you don't, could you cite me to something?

[00:12:43] Speaker 01:
They may have the authority to do that going

[00:12:46] Speaker 01:
forward, certainly if they want to change something.

[00:12:48] Speaker 01:
They have the authority to do that.

[00:12:50] Speaker 01:
They do not, however, have the authority to eliminate an obligation or a liability on their part that has already been incurred.

[00:13:00] Speaker 00:
And for that, I would point you to such a- Isn't that only if the liability is a contractual one?

[00:13:04] Speaker 00:
Or are you saying the government is limited, that Congress can't repeal a program

[00:13:12] Speaker 00:
that was going to provide assistance even if they change their minds on policy and they haven't entered into a contract.

[00:13:21] Speaker 00:
I don't know if the question is clear.

[00:13:24] Speaker 00:
If there is, this goes back to, if there is no contractual obligation, what if anything else limits Congress's authority to say, sorry, we've changed our mind?

[00:13:39] Speaker 01:
We're not arguing that Congress cannot change its mind going forward.

[00:13:42] Speaker 01:
but Congress cannot eliminate liabilities that have already been incurred.

[00:13:47] Speaker 01:
And what I would point to you for that is one USC section 109, which states that the repeal of the statute does not eliminate any obligations or liabilities that are already incurred under that statute unless the repealing statute specifically says otherwise, and that the statute will be treated as continuing in effect for purposes of an enforcement action.

[00:14:08] Speaker 01:
Here, the language

[00:14:11] Speaker 01:
in the Inflation Reduction Act of 2022 that repealed Section 1005 simply said, this section is repealed.

[00:14:17] Speaker 01:
It didn't say anything about extinguishing any existing rights.

[00:14:21] Speaker 01:
And our argument here is that both based on the mandatory language in the statute and the fact that our clients returned Form 2601, checked, I accept.

[00:14:35] Speaker 01:
But the governments acknowledge that the only thing left for them to do at that point is make the payment, that those payment obligations

[00:14:40] Speaker 01:
stand regardless of any steps taken later.

[00:14:50] Speaker 02:
Thank you counsel.

[00:15:17] Speaker 04:
May it please the court.

[00:15:20] Speaker 04:
This appeal is about contract formation and nothing else.

[00:15:26] Speaker 04:
For the first time at oral argument on appeal, there is a request for this court to vacate the judgment with instructions to allow leave to amend to assert a new claim for violation of the statute.

[00:15:50] Speaker 04:
that's gotta be triple waiver if I've ever seen it because there was that claim was not asserted in the trial court there was no request for leave to amend in the trial court that assertion was not made in the blue brief

[00:16:07] Speaker 04:
It was not even made in the Gray brief.

[00:16:11] Speaker 04:
The only reference to leave to amend in the Gray had to do with a new consideration theory that they had come up with related to taxes.

[00:16:21] Speaker 04:
And that was even made only in a footnote, footnote six on page 15 of the Gray.

[00:16:30] Speaker 04:
That issue is not before the court, but I will just share

[00:16:38] Speaker 04:
It is highly doubtful that such a claim could survive a motion to dismiss because there are numerous problems with it, both of jurisdictional and constitutional dimensions, which I can't even go into on the fly here.

[00:17:00] Speaker 02:
I appreciate your mentioning this.

[00:17:02] Speaker 02:
I'm sure it's difficult seeing as it's been raised for the first time today.

[00:17:06] Speaker 04:
But I would just say that issue is not before the court.

[00:17:13] Speaker 04:
So I'd like to pick up my argument really with what this appeal is about, which is contract formation.

[00:17:20] Speaker 04:
And I'd like to start with the notice from USDA's Farm Service Agency, the FSA 2601, which really lies at the heart of the plaintiff's claims for breach of contract.

[00:17:35] Speaker 04:
The 2601 form itself states that it is an informational notice, one that will be used by the agency to, quote, process the customer's request for payment according to ARPA.

[00:17:53] Speaker 04:
Now, ARPA Section 1005 created this financial assistance program.

[00:17:59] Speaker 04:
and established fixed eligibility criteria for certain types of farmers and set a formula for computing the payments.

[00:18:08] Speaker 04:
But the program barely got off the ground because several district courts enjoined it as unconstitutional

[00:18:17] Speaker 04:
on equal protection grounds, and then Congress saw fit to repeal it and do other things for farmers in this country.

[00:18:24] Speaker 00:
Is it really fair to characterize the form as merely an informational notice?

[00:18:29] Speaker 00:
I think it's undisputed that it's generated by the, I think the FSA, but by the Department of Agriculture.

[00:18:36] Speaker 00:
It's sent proactively by the government to the SDF, to the farmer.

[00:18:44] Speaker 00:
It's got

[00:18:45] Speaker 00:
specific information about the farmer it's basically telling the farmer you are eligible for this it's not just uh... flyer randomly posted you know on the street to provide information widely to the entire community is it well that there is former specific information being provided in the informational notice but that that's not my characterization your honor uh... on pic appendix page forty three which is one of the three uh... versions of the

[00:19:16] Speaker 04:
2601 they're substantially identical USDA called their own form an informational notice it's in the third paragraph of the form it says this informational notice and then it talks about the consequences of it being an informational notice and that No one should care about it for bankruptcy purposes, but it's still they called it an informational notice.

[00:19:40] Speaker 04:
That's not my characterization

[00:19:44] Speaker 04:
And in this case, the plaintiffs are the customers who returned that informational notice, the 2601 form, with their request for payment under this program that, unfortunately, could not be fulfilled.

[00:20:04] Speaker 04:
But under this court's decision, of course.

[00:20:07] Speaker 02:
Can I ask you the same point?

[00:20:09] Speaker 02:
I mean, it says, I accept your payment.

[00:20:12] Speaker 02:
So why is that?

[00:20:14] Speaker 02:
you know, a request, if it says I accept.

[00:20:17] Speaker 03:
Or information.

[00:20:19] Speaker 03:
Because... Accept isn't really consistent with informational, is it?

[00:20:25] Speaker 04:
I'm sorry?

[00:20:26] Speaker 03:
Accept doesn't seem to be consistent with informational.

[00:20:30] Speaker 03:
Agree or disagree?

[00:20:32] Speaker 04:
Your Honor, I disagree because the information that's being provided is the agency's initial computation of what this farmer may be entitled to request.

[00:20:46] Speaker 04:
The form itself describes the recipient as a customer, not a contractor.

[00:20:53] Speaker 04:
It says that this form will be used to process the customer's request for payment.

[00:21:01] Speaker 04:
not acceptance of a contractual offer.

[00:21:09] Speaker 04:
So I do respectfully disagree.

[00:21:12] Speaker 02:
So your view is that even though it says I accept,

[00:21:15] Speaker 02:
You have other language that you point us to that you think undermines that suggestion from the word accept that it's a contract.

[00:21:23] Speaker 04:
Yes, indeed.

[00:21:24] Speaker 02:
And under this course- And do you have other language you want to point us to other than the informational notice?

[00:21:29] Speaker 02:
And I think you just repeated something else.

[00:21:31] Speaker 02:
Is there anything else you would identify for us?

[00:21:35] Speaker 04:
Well, for example, on page 45, the information will be used

[00:21:41] Speaker 04:
I'm making an ellipsis for a number of reasons, including in order to process the customer's request for payment according to CARPA.

[00:21:51] Speaker 04:
And later, a failure to furnish the requested information may result in a determination that FSA cannot process the customer's request for payment.

[00:22:03] Speaker 04:
Appendix 45.

[00:22:04] Speaker 00:
Is it the tiny words in the boxes at the bottom?

[00:22:09] Speaker 04:
Yes.

[00:22:10] Speaker 04:
And I apologize that they're small.

[00:22:14] Speaker 04:
But that is what they say.

[00:22:17] Speaker 03:
That's what they call the fine print.

[00:22:21] Speaker 04:
The devil is in the details.

[00:22:28] Speaker 04:
This court's precedents, like American bankers and DNN Bank have established, is that legislative programs are just policies to be pursued until Congress declares otherwise.

[00:22:42] Speaker 04:
And those programs don't create private contractual rights unless there is a clear indication, a clear indication of government intent to contract.

[00:22:56] Speaker 02:
What case from our court do you think is the best for the proposition you just said?

[00:23:04] Speaker 04:
American bankers and DNN and bank for sure, Your Honor.

[00:23:07] Speaker 04:
And those propositions have been repeatedly cited in at least half a dozen cases since then.

[00:23:18] Speaker 04:
You can't, under those cases, you can't just have a cloud of evidence.

[00:23:23] Speaker 04:
That's what DNN Bank says.

[00:23:24] Speaker 04:
You can't have a cloud of evidence that's merely consistent with possible contract formation.

[00:23:30] Speaker 04:
It has to be clear.

[00:23:33] Speaker 04:
It has to be unambiguous, offer an acceptance, not merely possibly consistent with it.

[00:23:44] Speaker 04:
And in the statute itself, which is the starting point for the analysis, ARPA Section 1005 created this financial assistance program, but there's no clear indication in the statute that the government intended to negotiate contracts in exchange for handing out these financial assistance payments.

[00:24:10] Speaker 04:
ARPA was a huge piece of legislation.

[00:24:13] Speaker 04:
And as Judge Start's question before alluded to, it did contain numerous provisions for the use of contracts in other programs.

[00:24:24] Speaker 04:
But there's nothing in Section 1005 that gives any indication, much less a clear indication, that the government intended to contract in exchange for payments in the 1005 program.

[00:24:40] Speaker 04:
And likewise, there is no clear indication in the 2601 form itself that the government intended to make a contract.

[00:24:50] Speaker 04:
To the contrary, as we were discussing, the 2601 form itself states it's an informational notice, not a contract.

[00:25:00] Speaker 04:
It says the recipients of that notice are customers, not contractors.

[00:25:06] Speaker 04:
And it says that the customers are making a request for payment under ARPA, not accepting a contractual offer.

[00:25:18] Speaker 00:
Can I ask you about consideration?

[00:25:19] Speaker 00:
You point out the trial court said there's no consideration, regardless of whether you check box one, two, or three.

[00:25:29] Speaker 00:
But it would seem to me the analysis has to be different.

[00:25:32] Speaker 00:
It may be that the end result is there's no consideration for one, two, and three, but at least when you check one, it seems like you're waiving certain rights to at least challenge the calculation, maybe other appellate rights.

[00:25:44] Speaker 00:
Would you agree that the analysis as to whether there's consideration for checking box one is different from if you check box two or three?

[00:25:53] Speaker 04:
No your honor because there's there's no consideration anywhere in this document Let's talk about the three consideration theories that have been most concerned the waiver sure right so if you start that please happy to your honor I'll focus on that There's no

[00:26:13] Speaker 04:
There's nothing in the 2601 form itself that provides for any waiver.

[00:26:20] Speaker 04:
There's no release language.

[00:26:21] Speaker 04:
There's no waiver language anywhere in the form.

[00:26:26] Speaker 04:
And the plaintiffs don't allege that there was a dispute about the calculation.

[00:26:31] Speaker 04:
So they don't really allege that there was something to waive anyway.

[00:26:37] Speaker 04:
That's not consideration.

[00:26:43] Speaker 04:
And as we discussed in the briefs, the remaining consideration theories are without merit as well.

[00:26:52] Speaker 00:
Let me ask you something else then.

[00:26:54] Speaker 00:
I'm sure you're aware there's allegations of detrimental reliance here by the plaintiff class and specifically the named members, the named plaintiffs, and we hear more about that in the brief.

[00:27:08] Speaker 00:
Does the government have anything to say about that?

[00:27:11] Speaker 04:
We do address that in our principal reef, your honor, in the red.

[00:27:19] Speaker 04:
The detrimental reliance theory is not cognizable in the court of federal claims, because historically, that is considered to be an implied-in-law contract, as opposed to an implied-in-fact contract.

[00:27:35] Speaker 04:
And the court of federal claims only has jurisdiction to entertain

[00:27:41] Speaker 04:
claims for breach of an implied-in-fact contract.

[00:27:45] Speaker 04:
And there is a concession, I believe, in the reply in the gray, which concedes that they're not trying to assert an implied-in-law contract.

[00:27:56] Speaker 04:
So while I can empathize with the disappointed expectations and the hoped-for

[00:28:08] Speaker 04:
payments that they thought that were going to materialize, but district courts enjoined the government from making those payments that it was ready, willing, and able to make at the time.

[00:28:20] Speaker 04:
And Congress ultimately decided to repeal the program.

[00:28:24] Speaker 04:
So that is not consideration.

[00:28:30] Speaker 04:
Reliance, while understandable,

[00:28:33] Speaker 04:
We can empathize with it, but it's not legally significant or sufficient.

[00:28:44] Speaker 04:
In short, there are four elements of contract formation and the plaintiffs have failed to allege well-pleaded facts that would establish any of them.

[00:28:55] Speaker 04:
A failure on any element is fatal.

[00:28:59] Speaker 04:
And their breach of contract claims have four fatal pleading defects.

[00:29:07] Speaker 04:
The court should affirm.

[00:29:11] Speaker 03:
Thank you.

[00:29:11] Speaker 02:
Thank you, counsel.

[00:29:22] Speaker 02:
I will restore your battle time.

[00:29:30] Speaker 01:
So I want to make a couple of quick points here.

[00:29:35] Speaker 01:
The first is that the government suggests to this court that where and how the term informational notice is used or where and how their quotes to the fact that this information will be used or that the borrowers here are customers, it's irrelevant where it's not, but it is relevant here.

[00:29:56] Speaker 01:
The term informational notice is found in only one spot.

[00:29:59] Speaker 01:
on the FSA 2601.

[00:30:01] Speaker 01:
And it's in a bolded section specifically aimed at borrowers that are either in bankruptcy proceedings or have had their debts discharged.

[00:30:10] Speaker 01:
And the government is informing them that this letter is not an attempt to collect a debt from them.

[00:30:17] Speaker 01:
That's the informational portion of that.

[00:30:20] Speaker 01:
The rest of the language in here in terms about all of your eligible debt will be paid in full, that I accept ARPA payment,

[00:30:29] Speaker 01:
My payment will be distributed, goes to a contract.

[00:30:33] Speaker 01:
The language, as counsel pointed out, is hard for anyone to find.

[00:30:36] Speaker 01:
Defined print, I'm going to refer to Appendix 61, is part of the language that had to be included here under the Privacy Act of 1974.

[00:30:47] Speaker 01:
It's simply to inform the borrowers the same way the government would inform anyone else that received a form from them.

[00:30:54] Speaker 01:
that some of the information here is considered private and it's voluntary if you choose to give it or not.

[00:30:59] Speaker 01:
It has, again, nothing to do with the terms of the actual offer that was being made and the acceptance of that offer by my client.

[00:31:08] Speaker 01:
So you can't look to fine print about that privacy act that's so small that, honestly, I have trouble reading it even with my reading gloves because I have to take them off and stare at this paper to somehow trump the entirety of this contract otherwise.

[00:31:26] Speaker 01:
The government talked about you need an unambiguous offer and acceptance.

[00:31:29] Speaker 01:
You can't get any clearer than what the government itself called an offer letter that says you're eligible, we're going to pay your debt in full, and my client said, I accept your calculation and your debt payment.

[00:31:40] Speaker 01:
The government talked about lack of the word waiver in here, but it's very clear that only two groups of people retain the right to appeal.

[00:31:49] Speaker 01:
Those that chose option two to talk to the government and still disagreed with the calculation afterwards, and then also

[00:31:55] Speaker 01:
The form specifically mentions loans with multiple borrowers.

[00:32:00] Speaker 01:
And if there are any borrowers that haven't signed and returned the form within 60 days, it expressly states that those borrowers, and only the ones that have not signed, are to be informed of their appeal rights.

[00:32:10] Speaker 01:
And then if they don't file an appeal within 30 days, the form goes back.

[00:32:14] Speaker 01:
It says nothing about the farmers that did sign, I accept, even in those multiborrow loans, having any right to appeal.

[00:32:23] Speaker 01:
And the final point as to detrimental reliance we're not arguing and implied in law contract however the expenditures that my clients made go to both showing intent and also to showing that they were contributing to the agricultural sector just as ARPA was intended to have them do and we have some additional language in the briefing

[00:32:45] Speaker 01:
as to why that is valid.

[00:32:48] Speaker 02:
Thank you.

[00:32:49] Speaker 02:
Thank you counsel.

[00:32:50] Speaker 02:
We thank both counsel for their argument today.

[00:32:53] Speaker 02:
The case is submitted and that's the end of our oral argument scheduled for today.

[00:32:59] Speaker 02:
Thank you.