one of your honors and may it please the court now maguire on behalf of appellant national veterans legal services program or in the l s p for short district court erroneous leave dismissed in the l s p's complaint in this case because it wrongly found one completely fails to comply with a mandatory industry legal obligation the nd type of claim would be where the government has taken too long or unreasonably delayed in complying with its mandatory industry legal obligations not a single decision of the board so it was available publicly on a centralized internet website that would allow india as peter others to isolate cases of interest that set of facts is what makes both the standing analysis and the agency action analysis relatively straightforward with respect to standing in the l s p the allegations fully satisfied the standard for an informational injury articulated by the u s supreme court in f e c versus a can public citizen versus united states court of justice and this court's decision in dreher this court in the supreme court has consistently held that a plaintiff's suffers an injury in fact when it's denied information that must be disclosed to it pursuant to a statute to show it from ational injury in the l s p needed to allege as follows one that it lacked access to information to which it was legally entitled and two that the lack of access to the information f r seventy point eight l e o d directives in duty instructions all gave the l s p the right to access the board's final decisions in the manner it alleged and on the nd prong in the l s p detailed is there really a deprivation here good wilkinson i have several responses to that the st being that there was no allegation by india l s p that it had the ability to obtain that information through specific request and i think that's critical your honor because that's a fact that the government is trying to bring into this case at the motion to dismiss stage and we raised our briefs and below that if they wanted to have a factual challenge to stand it that our claims are not true in the complaint that we could have gotten this information through a specific requests then we should have had a hearing or at least the district should have considered the declarations put in related to the policeman or injunction and reviewing the accuracy of that information that it's specific requests would not have solved this injury in this case because in the l s p looks at the full body of decisions to provide a resource manual and other resources to veterans advocates and veterans themselves so it's not as if they know we want exactly this decision and they're also declarations that were submitted around the perimeter injunction showing that the department's work around process that they rely so heavily on didn't work we're going to go back in the decision to just not as quickly as you  well your honor again to return sort of to my st point and i do think it is important is that that is not alleged in the complaint when the complaint was filed in d l s p allegations and the truth is had no idea if these decisions would be available again or reasons i thought it was under statutory directive dact sensitive private information and then it's caught between two  obviously desirable goals one is to make the full information available to the public but on the other hand when you're talking about  discharge from military service and whether one has a discharge or general discharge or i think there are five different alleys classification levels  it's hard for me to think of anything that's more sensitive than that because particularly if it's something other than honorable discharge any future employer would want to know and i mean this is this gets to the point where something could really compromise a service member's life prospects in a very serious way and congress at least took that into account and said that they that they didn't want very personal private information out there so in complying with this dual mandate  problems information about the don't ask don't tell information about alleged sexual assaults and nilssen that man would cover the waterfront and so  it just seems to me that the agency was not only right to proceed with some care but it was obligated by both statute in regulation obligation is not as broad as sort of laid out in your question that they're reacting personally identifying information so we're talking about people's names their social security numbers very sensitive information but nothing that would imply the discretion to  that that your honor was describe where maybe they feel like something is too sensitive or not sensitive enough they're limited to sort of core redactions so we see that as just another sort of ministerial requirement into duty they owe to veterans and it's very important your honor from our perspective given the fact that this case arises to the court on a motion to dismiss that the court look at the framing of the allegations in the complaint with respect to reaction let me ask you about that and i thought it was the record was developed because there was a motion for pulling our injunction and considering the motion for planaria injunction which included the record and which court can consider it concluded that there was no standing number  won based on the record before the court and number two there was no final agency action therefore no jurisdiction to employ it and the court relied on both prongs based on the record were not up to right twelve b six figures stated clim we're talking about standing which is a court decision to make and jurisdiction which is a court decision to make it's name it was the court can look at anything in the record to support those things that's n court said in with the media foundation as it laid out the standard of review applicable to standing and then nd is that i disagree with your honor's characterization of what the district court did hear the district court address both the plymouth area junction and the motion to dismiss in the same order but the court put blinkers on when it came to all in the l s p the evidence in the record and addressing standing if that is what it did for example if the court looked at j f forty seven paragraphs ten and eleven in b l s he pointed out a specific instance where it was unable to carry out its projects with its partners as a result of the government's actions in this case so to the effect that you can argue that on the standing issue my whole comment is that you're treating this like a twelve b six where we have specified rules this is a challenge to standing your standing and you you i think you make some valid points on the standing issue but the court decided that you didn't have standing and the court also decided that it was wrong on that it nonetheless had no jurisdiction to rule and it based out on the fact that you are challenging the agency's efforts to fulfill it the holding of the district court was those to think that the mayor respectfully we disagree with that framing of the district court's opinion if you look at the court's order it just addresses the motion to dismiss it cites the motion to dismiss standard of review itself and its an at the very end it says is not addressing the plimer injunction at all because it lacks jurisdiction and this court has made very clear and with the media foundation that there are differing rules with that applied to rule twelve the one standing motion or any other sort of issue depending on how the defendants have and here we think that the proper approach is to look at this case on the facts of the complaint since it was a motion to dismiss that was granted and we did not appeal that an  as sorry to interrupt but just following up on just a mars question you know i get your point for example that if the agency in this case if the if the facts had been as you allege initially that the agencies simply had failed or abdicated in its obligation to set up this virtual reading room that would amount to a discreet agency action but i don't think that we should put blinders on to the reality of fact i suppose even absent an allegation in the complaint that we could take judicial notice of the fact and of course in the record because of the policeman or injunction proceedings that the agency has begun to comply with  salvations to put together this virtual reading room is just not doing it as quickly as you and your your agency colleagues and the people you serve would like and that's understandable but are you saying that we simply we we just have to turn a blind eye to that that in fact the agency has acted it's yes by st order answer would be that the better approach to this case because of the motion to dismiss is yes because it invites the government to come in and do exactly what he did here which is of apparently one hundred and thirty eight thousand two hundred and forty one thousand decisions have been posted there is an effort to comply  or you are proceeding to do this in the wrong way and maybe we would have to said adeline is four and the rest in a serious infraction of the separation of powers because we would be assuming for ourselves oh the performance of an administrative function and  an executive branch function and all of the courts that i read on this decision about what is a final agency action under example at the beginning of the argument about whether the agency was saying well we're just not going to make anything available but that's not what's going on here but why i mean that gives me a real problem from a separation of powers point of view that welcomes and i i have a couple of response i'm going to try to boil them down quickly into one legal and one factual if i may since i see that my time has expired on the broader point i'm going to answer this question on the assumption that the court is going to look beyond the four corners of the complaint despite the motion to dismiss posture on the legal side of it your honor i think the answer to your question is if you perceive a separation of powers concern about overseeing agencies and how quickly they do undertake actions the a p a explicitly textually provides for that cause of action for unreasonable delay the d c circuit has been doing this for the last thirty years the track factors were  what constitutes an unreasonable blame and it is in fact it rule of reason test the courts routinely apply to the side that maybe are not reasonable to lay for this create agency action but what you're talking about is going reasonable delay across the breadth of a program now you know if you're talking about individual plaintiffs sitting on an individual piece of information or whatever there can be a real oh maybe a place for an unreasonable delay action there but they are unreasonable to let a question that you posed is still subject to the final agency decision requirement and if there's no final is this the final agency action garment that separates an individual claim eye for an answer from up from programatic supervision so it will consent i couldn't agree with you more on that but there is nothing more discreet or limited of an agency action than a publication requirement that's all that we're talking about in this case is a publication requirement we don't we're not talking about what goes into the decisions we're not talking about how quickly they render the decisions we're not talking about anything except for they have decided the case and they have a statutory mandate to publish that decision and i told world i thought their record shows that they did not make a decision to deny that responsibility or to carry out that obligation what they basically are saying is they have this dual duty to publish and to scrub the decisions of personal information then that they have taken down the decisions to scrub them and put them back up and that's their now about half way done and they're continuing to do it they're not denying it they're just carrying out their functions and your challenge is while they're doing that they're denying new information but that's a challenge to the performance of the program seems to me it's the minority mechanics then we're going to look at what they have done since the complaint was filed that would be the unreasonable delay side of the challenge that they took down two hundred and forty five thousand decisions if we look at what they have now put in the record for redaction related reasons what the district court should have done is going forward and said ok when you have multiple agency actions going on here have they been unreasonable in delaying how long it takes them to publish the cases is a point that judge wilkinson was making i believe but by i understood it correctly and let's grant you all of that they were under reasonable and they in their de lay they did not do it in the best way they took down all the decisions in a group and are put numb back and it's taking way too long and then in the meantime you're being denied the information you want that is if it's all accepted it still comes down to criticising the agency for the way it's managing the program the agency has never said as far as so i can see that you're not entitled to that information they basically said we were trying it  in their own clumsy way and that's your allegation and maybe they are clumsy i mean it sounds to me like taking a long time to get that stuff back up but their responses their screw up in the decisions for their personal i information and so forth but the bottom line is i have not seen anywhere that they have to my the information or rebut it the obligation imposed on them by statute and regulation d under those facts at least as i understand your question is if we posit a bun reasonably delayed there is sort of an implicit what is the remedy piece to your question right exactly that's that's a that's a legitimate point to argue what is the remedy but the question is st to find out what's at stake and i think what's at stake is your general allegations and the allegations in the complaint and in the other in your plume in our injunction in your affidavits is that they are not performing sufficiently adequately to carry out what they're supposed to do but that's a lot different from them saying we're not going to do it what they're saying is we are trying to do it and you're saying you're doing that pretty badly in the courts have to step in because of the blood is is arbitrary and it's way beyond what is reasonable you're if that's the point then we have to ask the question is what is our remedy what's our role do we manage agencies performance at any time yes so when i started the argument i'm sorry if i didn't do a very good job but this is we think we alleged box one they didn't do anything at all so we thought it was clear that way at the core that's a look at the  if you allege they didn't do anything all they haven't denied the responsibility they haven't to my your specific request for any information they claim that you can get it by an alternative method must disputed but my question to you is really doesn't all of this go to a challenge to the agency's carrying out of its obligations it's not denying those obligations it's carrying them out inadequately according to your true what is the remedy for that is the poor can insert injunction that says you have to do it in a reasonable amount of time if we prevail we may lose on the merits of the track act st question the unreasonable delay is unreasonable delay rendering a decision following up a decision making process and the supreme court has pointed out that that is review but reviewing the ongoing performance even though it is  delaying i mean we get a lot of these cases involving medicaid which is i think eighteen years delayed right now it's horrendous we've passed that on to congress and congress has accepted the responsibility and the trying to do something there but here  the delay is still pretty serious as you allege it and you may legitimately have criticism but the question is this is not a delaying such as to deny a decision which is owed would we would say constitutes the denial and i will i really do want to press on this factual point that i've had at the tip of my tongue for a minute is in the four and a half to five months after this case was filed rights to january nd no decisions or available by the time briefing concluded in a score of the one hundred and thirty eight thousand odd decisions available it's been five and a half to six months since then they have only published thirty thousand so what the reason why this case is so critically important and the reason why even age an injunction is really that says you must do it in a reasonable time so critically important is the agency has made clear it is not paying attention to this issue absent judicial at least a case going on right i mean like that their actions in this case have made clear that they are not going to do it  uncomfortable place to be overseeing the agency's actions and how close do you get our position is it's just so premature this all we're asking is to go forward get the record in the case the government can make all these merits arguments and we'll just see what happens and they may prevail or they may not but the court had jurisdiction to hear it that's our only point your honour's and thank you for letting me go over my time of you or have any further questions of mr mcguire here but i'm fine thank you  site and began the labor intensive process of reviewing redacting and reposed in more than two hundred thousand board decisions in the past twenty four years the process of administering a sprawling website  complex expansive agency operation it is not a discrete circumscribed decision and as a result it is not an agency action over which this court has jurisdiction under the administrative procedure in fact just court held in the city of new york versus department of defense because this court need not reach the question of standing at the confines of this reported that it lacks jurisdiction under the a p i of start by focusing on the agency action question where this court were the supreme court made a point of saying that general deficiencies and compliance lack of specificity call for final agency action   i'm no fan of the administrative state and those but there's no there's no end to deficiencies in agency compl all they may be under under funded mandates to do this and that many favorite strategy of the legislative branch to take the political credit if we recognize claims like this run the risk of holding agencies accountable for things that are not their fault so i  very solicitous of this final agency action all men having it represent something discrete i mean the courts have been good about safeguarding it because of the separation of powers concerns and also the altogether legitimate concern is that the dockets would be overwhelmed general programatic attacks  so that's the that's what we're up against here one factual question i wanted to ask you what kinds of under this dual mandate here or you really had to do is to redact the individual's name and that's you know very mechanical and it should be accomplished quickly and easily i was actually  honor i apologize i don't know the answer to that question as to how that would whether that would be considered something that is personally identifiable information i mean it would it would be pointing to a particular person yes what i understand you're o particularly individual even if that individual's name was not given all social security number was not provided is that a problem in the administration of this your hon seriously needs to carry out the ending and wants to be very careful in ensuring that that ratings are treated with the up was heightened so he wants to be very cautious and very careful that had that the other is there any limit to an agency's sort of public stance of yes we're on it with respect to this database for example but yet doing little or nothing  in practice is there any role for court in that kind of a case your colleagues on the other side seems to suggest that the d c circuit which handles these kinds of agency cases all the time routinely steps in in circumstances such as the one i've described where this is an extreme derleth ssion duty on the part of the agency so enormous suggesting that that's the case here but let's say two years from now we're still looking at the same number of opinions of statutory responsibility in that circumstance you may end up in a situation where the agency's abdication is so significant that it amounts to a discipline it's read enough action that it could be live you all were not disputing that in the face of something so severe that an agency has completely abdicated its responsibility that perhaps there could be circumstances that would come about there were one hundred and thirty eight thousand decisions i believe that have been restored as of today that number is up to one hundred and fifty nine thousand the agency would have loved to have been able to report an even higher number at the time of the argument unfortunately co slur so with respect to that sort of option to procure the citizens on an individual basis maybe the answer is you're not even obligated to do that he'd see isn't obligated to do that so long as they're moving steadily to replace the decisions but your colleague on the other side i think would suggest that that may work well for an individual who might be seeking you know a particular decision but in the line of work that they're in where they're doing advocacy work for clients that that kind of ad hoc option just doesn't work very well and it's the availability of the the reading room with the search function that really makes the type of harm that the court was seen in that congress was intending to prevent by requiring disclosure that that was a concern about whether or service members themselves were able to defend themselves and to bring the types of cases they wanted before these boards and then whether this organization is able to carry out its purpose that the general purpose is not under th circuit law adequate to fight to  the whole reason for being for this organization is to advocate on behalf of veterans and if that have to see is made more difficult more expensive more cumbersome as a result of an inability to access the databases that the agency has historically relied on i don't see how that doesn't amount to the sort of concrete injury that our cases and more recent supreme court cases seem to suggest is enough i think you know the wessler they had to turn away clients simply because it's taking so long because of the inefficient way in which they have to do research on cases that they just simply don't have the resources to take on additional clients as a result they lose funding maybe their funding is tied to quantitative the number of clients that that they are that they can successfully process i mean these are all who are obviously of twelve th standing in the mail out for expansion of the record somewhat but if in fact those are all that are consequences the flow as a result of the denial of this access isn't isn't that enough we'll be happy to hear from you thank you your honors a few quick points we're having mostly it seems like america's argument to me this morning about whether or not the agency has unreasonably delayed and i guess my caution as we proceed into the rebuttal piece would be against that and this is why i lead my argument this morning with a focus on the complaint that this case rises to the court on a very narrow set of allegations where the facts the world changes because the case has now been around for more than a year but several key factual points i want to highli we're not talking about decisions issued yesterday by these boards we're talking about the situations that many instances could be nearly twenty or thirty years old that have been around for a long time and at the boards have had plenty of time to review or redact and this court asked several questions of my colleagues on the other side for her to give examples simply to you know provide a basis to say that there is a lot of agency discretion and what gets published and she would not answer that question that way for the court she was i think correctly your your your comments your written your common issues just made really heighten my concern with what you're asking because what you're saying well there are some of these decisions are have been alpha too long all some of these decisions have been on reasonably delayed others maybe not i mean what are we supposed to do go through these decisions one by one and say this has been on reasonably delay this is not in other words i continue to feel like you're sucking up to do a  role supervision and it would be periodic supervision about the way this whole program is run and we can go through  handed across a wide variety of decisions and everything we we don't have that valve disposal so this is a question of agency expertise this is is troubling me it's not your job you know i am which i think a lot of tory and you know if it were left up to me i'd like to see these decisions available sooner rather than later and your organization has a rino as a wonderful a wonderful mission and us and assisting veterans with with getting information in relation to their military records it's a problem judge wilkinson i hear you loud and clear and if i may try in a couple of parts to swash some of those concerns as far as i'm able the st is that we view congress as having thrust the court into this because there is an unreasonable delay action under the a p a and any time you have an argument about what is reasonable or not it is always going to involve the sort of the superintendent views of is that ok is that not ok how long does it take that's why the d c circuit which is the test for this is affectively a rule reason test but i would really encourage the court to take a step back from worrying about that test at this stage because all if you look at our complaint at wilkinson i think in fairness we have really tried to avoid having to seen the way your honor has characterized it as a full scale programatic attack about everything the agency is or is doing with this because what in the l s p came forward in alleged is there is an explicit statutory regulatory directive command to publish these tension between the do the mandates because on the one hand congress is saying do this make this available and then on the other hand congress is saying yes but only make it available under certain conditions w private information news is redacted so so you know you have there has to be so much consideration for the fact that this agency is caught in this tension and wants to satisfy both parties and you know it doesn't if it if it somehow made available very personal and private information  led to the identity of a particular individual or compromise that if that individual's prospects in life there's another lawsuit there so it has to be then they're trying to navigate a very difficult course that's that's all i'm just that's all i'm saying wilkinson i fully appreciate that and so does my client and that's why we have an every briefly filed in this case acknowledging redaction is important but if i can't try again with another quote just from the agency itself about you know it's not the court trying to thrust them out there faster than they would otherwise big and they're regulation that they have never repealed this is thirty two c f r get seventy point eight l they say quote make the decisions quote shall be made available for public inspection and copying promptly after a notice a final decision to send to the applicant the agency itself has directed that it will do it promptly so the idea that they need an eternity for years at this point we're now years behind for more recent decisions none of which have been posted and would that i'm aware of is just not true in the agency's own view but all we're saying to the court of this stage is we have alleged as discreet an agency action as possible which is why below the department  argued that this was an agency action because it was so non substantive the publication requirement was so ministerial that wasn't actionable under the a p a they jettison that before this court but that was their one of their national arguments and we're saying that the court shouldn't shut the courthouse doors on a jurisdictional argument to that type of ministerial street action we should get to go to the merits or maybe we lose for all of the good reasons your honour's pointing out about superintending agencies but those are merits arguments and my client should be over which we have no jurisdiction and i just come back and say when you read over the broad swath of cases dealing with final agency actions the courts are very they're very