his generosity in doing so and and enjoy the chance to continue our association with visiting district judges in each session secondly we have admissions  works of our court they are in the employ of my esteemed colleague judge robert mayer and so he will be the movement will see if he can win his case judge maybe a figurative judge certain he has a very ample basis for making that assertion of the three cases being submitted on the briefs today without oral argument or appeal ten forty seven from two thousand and eight hildebrand versus tech manufacturing appeal thirty one twenty five from two thousand and eight ramos versus united states postal service and appeal seventy ninety nine from two thousand and eight room versus department of veterans affairs now we'll call for argument in appeal ten seventeen from the current year roughly development versus department of defense mr barton welcome back to winning to you please proceed good morning rocky to meet the ultimate burden of proving that the statute in this case unconstitutional i like that and like the wording from western states which calls this government burden the burden of justification and what the problem what we have here is that there is no burden of justification for the state you based on the evidence that the government presented is keeping in mind that the supreme court is has dispelled any thought that strict scrutiny is strict in theory fail in fact the government has moved throughout this case with its wording in with its briefs to lead the court to think that strict very strict scrutiny is somewhat less than strict scrutiny and the court has said again and again strict is strict but i think their mission i don't mean to interrupt this earlier on but help me feck through this the government has a burden to come forward with strong evidence some evidence strong evidence and then at what when do we decide the evidence is strong enough with the burden i suppose in some fashion well done in this case you have to look at the evidence and see if position and this case is is that there is no evidence to support this particular statute the government and the courts primary have evidence in this case are six municipal disparity studies  groups first of all and within the groups in the end astri's and without adequate this parity is and are your argument is that he failed the disparities failed to provide even much less discrimination in order to get to discrimination there has to be something to support the disparities that's required by approach you know statistical evidence alone will not show in this case even the statistical what we have here and this gets into what we would argue are ultimately if we if we get to that point is that part of the race neutral problem is to identify under the over inclusiveness and under inclusiveness which races are entitled to what preferences in what industries they're working and in this case the when i say preponderate i mean less than fifty percent of the industries and the races show disparities if you can't get that high you don't meet strict scrutiny when i'm kind of get at it what authority do you base out i haven't seen that particular term or i don't recall saying that particularly turner i don't think i pulled it out of the air so i think that i did pull one of the cases of cases that output from our the line of cases of  primarily full of by a level of fifty percent at the end astri's and that gets to a whole nother issue that you all i'm sure are red in our graves already industries are in this case the industries they're using yes i would agree with that but the problem is when you're unable to identify the industries and krosa and has frozen that are and both have addressed the issue of having the industry you have to be able to identify where the discrimination is and if you don't have discrimination that is identified in a particular way you can't tell what industries it's a have a strong basis and the evidence would say that if you're going to reword all of the five presumed graces in an equal manner you should maybe there should be a strong basis and evidence why that should be that if you have different races who showed this parities without even showing discrimination these studies don't show discrimination because they show no causal link between the disparities and the anecdotal evidence that there is there so i think i phone could really go back because it decides the year case three if we decide evidence is bad who has to do this re and the us i'm not reading your question but the issue in this case is that these studies were never even before congress even the government admits that the six studies are not in the congressional record they were never presented there was never a hearing in order to reauthorize section twelve seven would john tried regus found and it stated clearly in his opinion that these six thirty's are referenced in hearings he didn't and then if i would hearings he was referring to but he said they were referenced not only by senator kennedy and a few others in individual floor statements but in no findings made in any one of the six jurisdictions regarding the destroyer at least that is as to what their purpose was what they were supposed to do for example virginia rather than go to a race based program based on their study went to a race neutral program let me ask you this the defense authorization bill normally is the subject of hearings and a very extensive report did that not happen in the fall of zero five in it wasn't a question there were there were there was a report on the authorization bill itself right yes we read it no i didn't read it all and i'm not i'm not aware of what hearings there were as to the authorization bill itself i know that there were there was nothing in the hearings that pertained to twelve o seven because it can't be found you look i looked and the government doesn't seem to say any congress obviously doesn't have to do with the timing of the studies they all were done and available and published prior to the reauthorization date in january of two thousand and six so they were before congress in the sense of earlier then the congressional action so your argument then seems to turn on the notion that if they're mentioned even specifically by a particular member in a floor statement that doesn't count as being before congress so what is your definition of what action properly puts a document before congress i don't think that we need to get to that issue because in this case the manner in which it could be before there are a number of different things like that could prevail on that issue and that is was it before congress and here was it discussed in detail were findings made  so the studies never let only those with so you draw the line between all of those on the one hand and senator kennedy making a statement on the floor on december twentieth for example on the other he is we have  no evidence that senator kennedy even saw the reason and it's very questionable whether he did because he made statements about about these studies that he made in the us the o t program which is not at issue here that when you read his statement i mean you can get voted portions i hadn't read the whole speech i can get no indication that he's really these particular studies and one of the reasons is that if he had read them and weighed them he would have had before in the knowledge that virginia didn't use theirs as a basis for race based program he would have known that the cincinnati study was found to be unconstitutional by i believe it was a unit u s district court stretching a little bit but anyway a court found that statute to be unconstitutional the writers of that opinion agreed that it was that the studies that something to may give a go ahead another citation in there if not i'll look oh ma position of speaking and see if i can find reference that there i had at least one other case you know i did go exhaustively i found cases of support of the fact that that when you get into political rhetoric in this and i think it's particularly apropos in this case where you're talking about the emotional feel race based  statutes and preferences that you have to be particularly careful and that you you go beyond what the government argues that you know you don't have the rules of evidence as being  you also have to use your common sense and you have to use that whenever you're addressing the rules of evidence and addressing that in this case you do that you cannot see that there was any way of the studies but to go one step further they think twelve o seven should be read and with no finding as to why that is but they end way that the reason we need this program is because we need diversity in the you know the contracting and we will know that the verse of the is not the correct standard past where there were findings but obviously in order to an act in order for the court to evaluate whether the remedial purpose of the statute is correct they're going to have to have some kind of findings they don't have to say this is a finding but there are lives are replete with the congress as they usually are in the latter part of the statute that congress has found that certain things supported this particular statute this case not and when you don't have those by and then as you can't determine what their remedial purpose is other than what they are what the purpose of the statute is other than the fact that they said the purpose of this in two thousand and six was diversity they don't discuss in there that that we're trying to get trying to rid ourselves of disparities and the zero day and this program could not do that because it's only based on what we would argue are inadequate facts within six jurisdictions around the united states i think i pointed out in our latest let's hear from the government now and then we'll let you  the two minutes that you sought to reserve to revile stevens letting such a large number of contracts every year through the defense department programs is viewed as supporting actors in the contracting markets who are discriminating racially that's a pretty bro would we ever know when the program is over well i think one way that there's two mechanisms the come to mind about how the program might be over first of all one of the it's viewed as discriminatory really means going forward how will we ever know that the discriminatory after effects have been wrung out of the system so that a racial preference would no longer be justified other than if the particular racial group got exactly the same percentage of the contract as it makes up of the total number of contractors and i don't think you would need that kind of result for for all of the groups in order to conclude that the lingering effects of discrimination hat had faded away and it you would look again congress in trying to enact a program like this would have to come up with strong basis and evidence and if in looking at the experience the evidence that you had here we had hearings before the small business committee or earrings we had the six disparity studies we had statements from members of congress about their districts and they were you need to prove that there is no discrimination by anybody public or private federalist neither in all anywhere in the united need against any racial group in any kind of industrial sector you'd have to prove that absence of any discrimination anywhere would seem to me before you could conclude that the government would no longer be passably participating in financially supporting a corrupt i think as long as there was significant discrimination in those private him up markets yes we would argue that for d o t in particular that's been such a large amount of money across the country in those markets it's likely their spending would continue to perpetuate it but if that evidence to spare he seems to me to be just a different way of saying proportional warn of contra i don't think that these studies assume that you had to have completely proportional representation in order to again as  other statistical analysis they look at the numbers and it didn't and the disparities are statistically significant if they are large enough that they're unlikely to be caused by chance a rare random information then they would not be deemed statistically significant and that happened before things were in lockstep there might be areas of the country where things improve more rapidly than other areas of the country and again it was a very it surveying the body of evidence that was before congress it appeared that you only had a very localized forty six standard metropolitan areas large larger cities in the united states so if the denominator is one hundred forty six and the ones showing some kind of disparities are only five five out of hundred  forty six that's nowhere near half or even a quarter or even a tenth so are we having to make assumptions about what's going on in other jurisdictions to justify a nationwide program using a states or how many counties three or four thousand counties or how many large cities out of one hundred forty six large cities it has to be more than minimal it seems to me york's not meaningful i think that one or two won't do in one or two states one or two  had been done earlier their statements by other members of congress that again we didn't have the actual text of the studies that were submitted in the record but there was representative watts from north carolina mention the results of the study that was conducted in his the studies looked at sort of or broad industries construction architectural and engineering studies goods and also professional services so i don't think that all of these studies can be characterized as just looking at the types of contractors who are you know paving roads and driving those out to the extent that a lot of the contracting was done by different different authorities department transportation that might be true and again i'm thinking now here for inside of the new york city study was limited to transportation contracts i don't think the state of virginia i think they looked at broader category of broader areas of their own contracting so i don't think that's a problem when you look at the studies he did you agree that the defense department in selecting prime contractors did not discriminate based on race i think i would agree that there was not evidence of one deposition where someone said that but two of the hearings that the district court cited specifically looked at pentagon procurement and deal d procurement and small businesses and small minority businesses and while they did not have the detail sort of longitud think the government admitted he was not going to have discriminated and selection of prime contractors so then the question would be well did those selected private contractors then turn around and discriminate on a racial basis in the subcontract and as far as i could tell from all the briefs and the opinion below there was no evidence of discrimination by the defense department prime contractors and if that's right then there is no discrimination anywhere at any level in the system of defense contracts well i think that crossan did hold that the congress has a compelling interest in preventing federal dollars from reinforcing richmond and said that it happens on an appropriate comparison that would allow you to infer that kind of private discrimination isn't it true that your case rests primarily if not exclusively on the idea of passive participation in supporting a discriminatory situation yes the statistical evidence and a great deal of the other testimony another hearing is about state and local contracting and the compelling interest of the district court was that the contractor level and how can you say d o d s perpetuating discrimination when d o d lets a contract say in the construction industry if there's been lending discrimination that has prevented businesses owned by asian americans or african americans from getting fun to start up their businesses they'll be fewer of those businesses they are when deal if the state and local contractors again in terms of building up spirits if they're discriminating against minority owned businesses they're not getting contracts they don't have the experience ratings when deal d comes in and decides that they're going to hire a contractor in these industries and if they look at them just across the board there won't be that many minority business as many minority business enterprises as there would have been without discriminat at capitalization of these firms and says could you come up tomorrow i don't know this is a precise contract that they said do you have five million dollars that you could put up in a bond tomorrow and if three majority all contractors went out and got lenders to give them that of credit and they say yes we can do that and the lenders discriminate against minority owned business and said no we're not going to give you credit then when d o d looks at this market they won't be able they would not give that minority on business alone they would say no you're  the number of minority business enterprises and their capitalization and their ability to go pro work and what congress did here was say that we want to set a goal and try to alleviate i guess our help in some way take into account those lingering effects again setting up these various mechanisms and there are a variety of them to improve the odds of some minority business in a province getting these contracts the program was also targeted and i think congress tried to take these kinds of concerns into consideration it directed the department of commerce to do a study and to designate the industry groups and the regions of the country where there really were these kinds of significance to disclose parities and said that  so the regulation of the statute and the regulations themselves were choir commerce to do this kind of study and limit the use of reason and islam to industries that are designated by commerce now commerce hasn't updated that study recently en go to market entry by minority owned firms difficulty in getting you into the business at all and difficulty again of strengthening your operations in order to have a better chance of getting more and larger contract s but it's far as i could tell from the record there are some anecdotal statements about those kind of market entry barriers but no these things there were also testimony in other statements about more present effects of discrimination in hitters who did not what i'm trying to distinguish between is evidence that had a strong  think we would also emphasize that these findings and this testimony is also consistent with the great body of evidence that had been put forward and earlier we often was ations and earlier hearing and while we can't rely on that evidence you know as a sole basis inference from the finding of the disparities in the state and local studies and it's consistent with much of the evidence that came before in the in the case of a jury or a bench trial a court of appeals will frequently  we were reviewing the inference is apparently implicitly drawn by the congress i would suggest that congress and it sledge a slate of function deserves a greater degree of deference than you would give to a jury and genuine issue of material fact and summary judgment and we had something that came here in this case there's no problem about evidence nobody says there needs to be a trial nobody says there is the typical conflict of testimony or other evidence that requires a we're not talking about whether they put in enough evidence to get to trial they don't want to trial they are not asking for a trial they have no burden to put in any kind of that but the question is whether the government's evidence justifies the program und commission that this body of evidence together and the studies themselves also included testimony and descriptive evidence that this was sufficient for congress to enact the statute here and that it actually graham in a way that it was narrowly tailored to groups that the reconstruction industry groups that it doesn't a good many of them were limited to certain you know maybe only ten states or fifteen states or twenty states and so i think what congress was saying is this is a nationwide program they're still evidence here that this is a problem it's a problem throughout the country and i think they understood the direction of the supreme court in this court and other courts and said we need we can't stop there we need to produces the regulations call for it to produce it every three years again because the statute also says that if d o d and the other agencies meet their goal the whole the regulations are suspended congress hasn't updated the study and that it's been suspended every year since  you didn't treat every industry and every business around the country the as saying that the same assumption they try to target and that's close to the narrow tailoring idea right that definitely goes to the narrative and doesn't go to whether this is strong recent evidence to justify the program based on racial classifications to begin i think it's something that you can consider i think when you look at the program that congress authorized on its base it authorized a program that explicitly requires findings of disparities by commerce and different industries around the country before these mechanisms are put into that congress didn't just say deal do you go out and put you know use these mechanisms in every contract you do they say that this is  like but probably the main one is he failed to define a scope of injury and the extent of the remedy necessary to cure its effects and the problem that is created by that is that he shows no causal link there's no way to establish a causal link to the supposed alleged discrimination that he wrongfully and for from the disparities in this case in the six that he is in scattered jurisdictions and unjustified would link those businesses to anything that they had they did or could do and there'd be no way to measure over the long term or whether whatever remedial facts congress hoped for they got to hit i think three important question if the district judge didn't comply with the instructions of this court that would be pretty serious important thing for us to focus on  but i didn't quite understand your answer well what precisely did we were him to do that he didn't do specific directions on a compelling interest  wrong in that neither the statute nor anything that the department of commerce has done to address those disparities or discrimination in the state program was never intended to do that the language in this that chute is the same as it was in the statute in one nine hundred ninety nine and the department regarding what the department of commerce is supposed to do to identify where there might be disparities in other words a disparity study so the  statement is an articulate see you think the law requires congress to articulate the extent of the discrimination and then match the remedy to its articulated metric of discrimination absolutely and that's so and so the failure here is that in your view is that when senator kennedy cites the six thirty he doesn't articulate anything other then there is a lack of divers yes and you think that doesn't meet the requirement of articulating the extent and location and nature of discrimination that in addition the name or so that is what it does not correct and as gary in one of your questions counsels response was she thinks congress was right making an assumption about this prayer yes but we don't know because they're earning the findings we don't know what it was you know to stand here and only be able to argue that that there is a thought that maybe this is what congress is doing is what makes that impossible to justify the statute there's just there's no basis for  she referred to him and then de is referring to three other disparity studies and that spiked in my mind my thought throughout this whole case we don't even know that the disparity studies that are in  joint appendix here are the ones that senator kennedy or anybody else in congress could have seen we don't know if these are final copies whether the ones of congress all were draft copies we don't even know if they're the same ones he didn't articulate anything from those six studies that gives any indication that these studies or even the ones he's referring to when he referred to them by title and author and city  it's conceivable that what he or his staff read was in draft or a summary or something but i don't think that there's any serious question about which sixty that he was referring to because his description was quite de out i don't contest that i'm just saying that in order to have a strong basis on the evidence you ought to know whether it was a graph to me that was possibly change significantly between the draft and the final copy we don't know whether this copy that we have in the record is a draft copy because the defendants don't know what those were because they aren't in the congressional record but it goes to the real issue is that you have six that these and you all dealt with and i'm not using it for any other purpose than the one that i'm bringing up right now and that is by line and verse that disparate that kind of blob aeration of disparity studies did not find that that these fifty nine studies showed this terminations in those fifty nine areas but the biggest thing is is they made it clear and they said we want to make it clear that these fifty nine studies do are are not of all right enough scope to give any idea that the disparities in these fifty nine areas show a nationwide standard of disparity will it fifty nine of those that are analyzed by one of the big think tanks in the city certainly six is not going to show you anything that congress can occur if we give you a lot of extra time and i think