times of saying that when you are an entry level officer you choose your cone that you want to pursue it is simply untrue you were when you were an entry level officer for the first five years you were unconscious so the certificate of need program where there is a one need  particular kowloon the foreign service shape was pretty clued in from applying for mid level applications in those columns which were not did not have a certificate of need and he had compete for mid level placements in these other cones and then simply by virtue of the fact that there is one certificate of need available in this cone that he ended up in twenty years later does not mean that he had the opportunity to compete for mid level placement in apply for those new level positions so because she was not in the middle of action plan of course is completely different there you get automatic qualification for any and not only does that's not the only significant difference many other people of all races whereas let's say the certificate of need is filled by a person of any rate it's a person of a race that qualifies for the mid level prevention plan can still apply for that cone even after the certificate of need is still so the competition is much less great because they have less you know what we want preclude his claiming that his paycheck is significantly less by virtue of that original discrimination is there some practical just apart from the law for second is there some practical reason not to apply what it looks like and in the record that other individuals who didn't qualify for the affirmative action route became aware of the race neutral ground and then sought a way to get their application put in the right place and i think   the extent to which that was knaidel aware to entry level foreign service officer officers most of whom would never qualify for mid level placement shame would qualify because he was in the hole in the naval  situation in which it's absolutely obvious that somebody is going to want to apply for a position because it involves the very same set of responsibilities but you could paid more at that point economic rationality just kicks in and says well the person would like to have the position that pays more but but more often what happens is when you get paid more because you have to do more and so it doesn't follow necessarily as a matter of course the somebody is going to want to have a greater responsibility than life to get a greater compensation and it is i think here you have that kind of situation i think because  mid level foreign service officers were more was expected of them so you could invision a situation in which somebody applies for the entry level position that they don't actually want to have the greater responsibility that through enough it begets greater compensation but they don't want to have that and so shay's desire at that time to move up in the middle of winter for pain you are absolutely correct there were more responsibilities i think with the proper inquiry is whether the department of state discriminated against him on the basis of a point case right he can't bring a challenge to a policy that actually one of affected him because he had no interest in the job i'm not sure that's true your honor i think of this this court has held that if the promotional opportunities simply denied to our virtue of his race he's able to apply the in the treasury department and she applies for a job in the foreign service i mean by your understanding of douglass he was still denied an equal opportunity to apply for the affirmative action program the treasury department is we have no reason that he has any interest in being in the treasury department at all i don't think that substantial if you wanted it and i think any your answer may be that he did want it or that it's obvious he wanted it or there's things in the record to show us that he in fact wanted it i guess i'm just not entire it is it doesn't seem right to me or this is not obviously right to me to say that even if he didn't different divisions within the same agency but you still at some point it seems like the plaintiff would need to show that the plaintiff had an interest in the position as to which he was denied an equal opportunity to compete otherwise that the fact that there's in the abstract a policy that could affect him that he was interested wouldn't give rise to a cognizable claim because he actually didn't have a desire to have that position i think in the in this scenario i don't think we need to go down that road because we have a scenario where   your your position so you would say that even if it was undisputed in the record that he didn't want that position because it came with the attendant increased responsibilities that he could still bring a class i think if given the fact that you have to have some sort of injury in fact and and to bring an equal protection claim and if the university of texas is using race the fact that you can apply to that university should be should be enough you do not in fact necessarily have to  intuitively fair that that would apply if it would be futile to apply so you could just say i want to go through the empty exercise of applying because i'd be futile but yeah i'd like to have it but it's the like to have it that keeps tripping me up and is you're  question this way if one were to think that the law required the plaintiff to demonstrate an interest in the position that he's been precluded from competing on an equal basis for are you saying that then right so he knows that there are mid level positions to which certain individuals can directly go then the one question i think is is he interested in actually having one of those mid level positions given that it has different responsibilities and as i understand your argument it is that it doesn't matter if he's interested he can still bring a claim and then my question is suppose that one would think it doesn't matter if he's interested then can we say from this record that he was in fact interested or do we just not know constitutional reasons in other words to avoid an unconstitutional disparate impact and to avoid past racial discrimination if that were its purpose i mean the department argues that it's to pursue racial balancing  johnson for that point did not want or say johnson was a breeze contras or a gender conscious affirmative action plan that was through a competitive process much like we have here in the end defense and so it's starting with the premise that but for some explanation the action violates title seven johnson doesn't have that presumption and a year your argument i think that now johnson must must be jettisoned because every case is governed by that presumption but i don't think johnson has to be read that way because johnson can just say no it's not the case that the does discriminate in some sense in some descriptive sense it doesn't make it invalidly discriminatory whereas the premise of ricci is that there would have been a violation yeah right you know your honor i think i think to constrain johnson to showing what does it mean to johnson to have a valid defense that can't be the case and here you move on to the johnson portion of argument that simply holding up a napkin saying we have an affirmative action program is enough you have to show a valid affirmative action program and that this is a valid form of action but it's not but i read the government to be shifting the focus from the mid level as an end in itself and taking the cue given by judge lamberth and his opinion which is that the mid level is a pipeline to the senior foreign service and there was an unbalance in the senior foreign service and the purpose the now stated purpose of the plan regardless of what was in the minds of the architects at the time and the basis upon which you can be upheld is that the responsibility than the entry level but the senior foreign service is a completely different ballgame and to say that you are going to create more senior foreign service officers by over inflating the mid levels past its its natural balanc that skipping over these entry level levels in directly into the mid levels where in a few levels you're going to learn a lot of the basics of foreign service work that i skipping over that you're going to increase representation the senior levels there's certainly no evidence on the increasing the probability that they would be more senior level if you had a different pool which to draw i mean there is evidence there testimony before congress in any employ the race conscious plan when all of these nine usual options as given by congress and given by these reports were available to it instead the department how it has to do all of them i mean i just need to be clear because it said it did so and it increase underrepresented populations appearance in the mid level then that creates a possibility of ascension to the senior service conceptually that just seems like mathematically true and then then the question becomes is that actually a viable pathway and it also seems undisputed from the materials that the lion's share of the positions that are filled in the senior foreign service come from people who are with it so it's the get the experience there or else they're not going to be sufficiently well qualified to go to the senior foreign service on the mid levels i wouldn't say necessarily i would say that that in order to justify their race conscious mid level program because of an imbalance in the senior levels and if we can see that there is no imbalance in that they must demonstrate a little bit more evidence than simply the mathematical probability that more there are more people in the bubbles they'll be more people in th s in the senior levels they have to show that connection that this mid level form of action program actually will increase so in other words they meant a mid level affirmative action program wasn't broad enough it should have expanded to encompass entry level two is that the way you look at it because then you would have representation in the entry level too so the fault of the program is that it was too narrow i think the fault of the program is that it wasn't targeting where the imbalance existed i think as we said our brief that they wanted to increase levels in order to get to that on balance even though in whatever it's it seemed like what was going on is that the there was an over inflation at one level i acknowledged it had to be under the the record that the target percentage exceeded the percentage of the population but the whole purpose of that is to create a ground pool right in the preference was apple level where the discrimination was occurring where there was traditional segregation where where these steel workers had for years excluded blacks and it was to run out by its own terms once one theory was ok thank you not know of the race neutral program and that is the only fact in the record we have with his new fact about whether or not he wanted to apply or he had a desire to so his application says something like i appl for i'll get the numbers wrong but level six or any other position for which i am call i doesn't say something like that or any other level does it say that now i'm asking you  and them and the race neutral program in both of them you could apply it any time whether or not there was a certificate of need even established in the section you could still apply and in fact that's what an ass let's do it and that is in the record she applied for the mid level race neutral program after she was accepted they then found where her happiness would be best best place and then they went and taint the certificate of need for her so there didn't have to and who were qualified still didn't get it there had to be this if you knew for a minority under the affirmative action program was not based purely upon their minority status was also based was a quote as established by the goals that  in the applicable for move action when so if there were no vacancy or there was no under representation for minority or there wasn't a minority needed to to increase representation in the section they wouldn't get a certificate or you could be replace regime so i saw that argument in your brief and i guess and the district court alluded to it in this decision too but i guess from the record evidence that i looked at there's no way to understand concretely what that meant i mean in other words the argument you're making is that although the affirmative action program was open to all minorities and there may have been a lack of under representation or even over representation with respect to certain populations that really at the end of the day all that the g each specific minority group within which foreign service conal system as compared to more timely data for a competitor population and then set goals for only those under represented groups and other then just the statement in the plans that something to the effect of you know you should be looking at the groups for which there is under representation what concretely happened with that suppose it targeting of specific minority groups because you also acknowledge right next to that read below that and although all minorities could apply its all in orders could apply to the program but then supposedly there is some some sort of targeting that goes on after that where you only set goals for those under represented groups and where do we look to see practically what that meant because all i got from the record was that the planned program is open to all minority groups there's some statement in the plan to the effect that you know look at the groups from which there's shown to be a representation and then identifies particular groups but never tells anybody what to do with that we just sort of you look at page forty one of the record at the very bottom certificate of need of room documentation possible for the minority various categories by race and ethnicity and gender yes and then it has percentages for some of those are not they hiring goals now you workforce study yes all right they have these percentages and then that the secretary had issued some directive saying we need to do more we need to do more you know we have these percentages so to thirty four and it lists which particular groups are associated with which particular percentage so this is not this is some groups as to which they are in fact is under representation correct but again happened after these goals were set other than who was hired who wasn't that is correct or where do we know who was hired and who was if you go to the record that following is if it's true that the program in fact i think ended the day targeted only those specific populations as to which there was under representation meaning the particular populations listed at two thirty four in it and then as you say to twenty two says conal analysis for foreign service generalists and it gives us particular populations white females black males hispanic males consular white females american indian males so it's not including every minority population and presumably that's because as to some specific populations there was not not only was there not another reputation but there may have even been over representation but putting that on one side it looks like under the represent the answer's yes they were but there most on the specific groups there were not in certain areas that is correct as well which you need a license you need to do the analysis for each of the areas which mr sze did not do to use it using the tying of the data all minorities that's true i think i'm wonders for parker right and unless there's something going on at the back end that cabin's the selection only to those subgroups as to which there's under complied doesn't mean that it's it's too general in itself is what is the action that has been taken that makes it too general in this case are they putting people in places that are they're not needed then it becomes too general but if you were going to have to everybody doesn't mean that it's wrong in fact that increases the pool for you to choose from and where you want to put them because just because there may be an old representation in the finance office or store is say in the army general this is doesn't mean that that person doesn't have a good background to put them in the finance office so it all depends on what you're looking at when you figure out where to put this person in the mid level secondly your honor i think the same reason why the whites could apply and anybody else could apply in the certificate or the programs you apply anybody could apply in this particular new program to white or minority and in their place on where they were needed as well so that it was based on where they lived where their their towns were and that so didn't make that one too general just means that you had a choose from but your action that was taken was placing them where they were needed i think i'm missing something basic and i'll just add one more time and i'll stand down hard as but i'm not talking about across jobs i'm talking about specific sub of just take the following as a given suppose that it's undisputed as a matter of numbers that there's great over representation of hispanics in the mid level foreign service great overrepresentation so there's nothing that needs to be done in order to get to any sort of level that's commands or with qualified population writ large but then the program is open to everybody including the population as to which there is great over representation are you taking the position that it doesn't matter that the programme actually benefits everybody even though there's over representation as to one benefit of populate the fact that the person is able to apply doesn't make the conduct of the of the of the program on lawful order it's person do they accept that person into the well place and then that so that then i'm with you then where do we see that in fact the hiring it sounds like what you're saying is the fact that everybody ought to apply doesn't matter unless people actually hire and what i don't understand is where in the record does it show that the hiring the ultimate decisions were only with respect to those populations as to which there was under representation but if you are in that respect we believe that it is in the policy  new program and he claims citing looking at page two eighteen there was no under representation of black males problem is two it is not because of the program to sixteen years to sixteen shows that there isn't a representation of black males there was a fact to show that that there was an equal treatment of minorities is as they're being promoted all the way up now in that case your honor if you're showing that just by chance or that everything is fine the other rows when the we have to go section by section for the purposes of i mean you just tell us what is a person in a line under the justification of first of the first tests of johnson and whatever then when he goes to determine was it narrowly tailored that's when you start to go by the section by section analysis and whether or not the conduct of the players addressed each of the sections and was it narrow enough was a drawdown to address those sections of the representation and i believe that that's that's what the court found we did in this case and that's the records of whole there was disparate treatment of disparate numbers and then when the bird then shifts to the plate of the show that was not nearly tailored then the question comes was is that why are there violations of that where the people were there and in th gives the point that something had to be taken away from you in which case in this case there was nothing taken because you never applied your god promotion in this i'm sorry you can't have it because it might lead you to talk minority that never happened in this case in fact way but just just to clarify this if if you're if it's a lack of standing why does that in the case why but why does it end the case in other words if you're right that there's not a prima fascia case then we affirm or if there's a lack of give somebody a chance if they think that the allegations are insufficient to establish standing to say whatever needs to be said now maybe that as a matter of fact he can't say it because of the problem is that you know the question is whether he was interested in applying  if he wasn't interested in buying then and if that's a problem standing then he can't say it but if he could say it and the only failure is that he has said it so far then we typically give somebody a chance to do that which we do this in the case back to the district court to do another step which i think is kind of unnecessary because number if you then compare that to their own comparative on page two seventeen each of those races every single one that i listed is over represented that is the only data that they have females obviously part of you'd have to include females i think if you're going to do a racial there was also a female preference program in place that we have a job but i mean if you're going to do it based on racial classification you'd include both males matter if you've applied or if you have any interest in fine you still your privacy should cases establish i think the element that he needs to show is that opportunities within his employer were precluded from him