know you filed this eight months in and now as you say we're about to hear you say the position for this country right right are you aware of any case where passage of certainly eight months or less than speaking explicitly on behalf of the department recognizing the agency's this is that probably that garbled sentence that must mean that even though it doesn't quite say that i think it's earlier where suppose i weren't quite sure whether the november letter was a denial or i suppose i thought it was a denial but that the right now remedy for the fact would be what the government says which is a remake and for an explanation of that no suppose i also thought that they have not really given much of an explanation for the period of time that has elapsed since the request and say today and it either event the remedy would be remiss and for an explanation either we have denied it and here's the reasons that we deny it or we haven't really been i did or are not now denying it but we need more time doesn't that amount to the same thing our remain and for that to speak with considerably more clarity that it has yet done about this it's issue without even deciding whether the delay is under reasonable because we haven't and there's that one sentence which you highlight i think in your reply brief one sentence of the read brief that says the reason for the delay is that we're still thinking about it which doesn't say why it's taking so this term the agency is of as of i guess and maybe improperly but anyway i'm i'm a little bit stuck on what that means the secretary is the one with the authority and there is no secretary signed off on alone would be subject to finally see review the question before this court is what is the final agency action with respect to the petition for whom it has the agency denied the agency has communicated to members of congress that further activity with respect to the subject determination of the scientific cart economic balance not given it doesn't quite mean at rest in that case because the agency has given a reasoned explanation for why it's not imminent and it has intimated that it will take action intervening months the agency has taken no action with respect to this issue there is nothing in the record that the agency points to they filed their brief in november twenty seventh team and the only activity with respect to this petition for rule making that they point you necessary it seems to be the consensus of the medical profession are you aware of any opposing view thronged well established medical organizations now and how are you aware of how all this is dealt with in private insurance companies are private insurance companies generally covering these procedures or not they are increasingly covering these procedures i don't know how the market passes out but it is commonplace a health program and you cited this i don't know if you have it in the record but you cite to notice that o p m put out in the end of twenty fifteen to stating covered benefits for gender transition services effective january twenty sixth seeing no carrier may have a general exclusion of services drugs or supplies related to gender transition which gender transformation is your creed that that clearly covers the sex assignment surgery choir's covering and that's because it says you may have you can't have a general exclusion of services so the issue is the records here they do provide views about what we think is constitutionally required and was mandated by section seven to take it kindly ask you would it be proper for the agency not take issue a notice of a proposed rule the content of which is to eliminate the exclusion the c whatever exclusion is but something essentially neutral that is we're considering keeping it or considering  eliminating it we now go through a comic period without saying our initial view is one way or the other whether by advance notice of proposed rule making or by some other  i think that's certainly within the agency's discretion the opportunity for rule making simply an opportunity for the agency to gather information gather public time that's the democratic part of the rule making process the agency doesn't have to put us on the scale one way or 's reasonable even if you would argue against them of a sort we have other priorities our agency is struggling with all kinds of issues the process of doing it will make ng on this would be both contentious and difficult we actually think we would need to not just take the a m a house of delegates resolution for what it's fair that it's face value but investigate the process that led to that investigate the the underlying publications along the lines of the way the defense department recently did in its february and that's a major effort and as a priority matter it future we don't have the resources would you construe that as a blanket denial that you get them to challenge or is that something that you view is them just putting a pause on it and not a final decision on whether to proceed all to say we're not doing this because there are other agency priorities that take precedence and so i would assume that that communication entailed a national denial we could then challenge it as arbitrary capricious or otherwise but congress is going to come in and legislate a new exclusion mandating them to do this i don't know if that's the agency if you i think that's always a responding agency undertakes regulatory action there's always the risk of logistical override but that's not a reason step is to institute the rule making about it i guess i'm not really sure whether whether that's right in part because the agency is not the one with congressionally delegated authority it's the secretary the process has has not been who sought this surgery and asked the v a and the v a said no could that individual bring a individual as applied challenge alleging among other things the kind of statutory or constitutional trade whatsoever on this issue i can't point you your honor to anything specifically that they have done on this on the petition but i would remark that that's not unusual in the case of agency action and responding to a petition for review that well it may not be unusual except when you have a letter to congress that says we're not going to take any further up action on this absent an appropriation from you or your honor with with all due respect reference to appropriated funding me this v a get appropriated funding to treat individual conditions or disability or diseases no your honor it's unclear exactly what that means in the letter and that is why we said has he ever law on a lack of appropriations to deny medically necessary treatment not that i'm aware of course it has appropriated funds and asked to stay within those to cover the general medical benefits but not on a particular and do you happen to know what denial of the petition under section five zero two and of course so if we said if we construe it as a denial you're asking us to send it back then and allow you the opportunity to give a reason basis for l a reasonable delay then we think the agency could draw rack up that the court could direct the agency to respond to the petition for review either to granted or denied presumably within a certain amount of time correct your hon a to act and given to other obligations we think that and you know given the fact also that this petition now has just been pending for two years which goes the understand our understanding is that we don't think there's been any unreasonable delay given any meaningful explanation there's really that one of the tail swallowing sentence in your brief that says no one reason of the way because we've been thinking about it which doesn't seem to me to actually give any the two and under that track analysis if there if this court determines that there is an under reasonable place such that the court has to protect its jurisdiction otherwise given that there is not a denial here there's not  under five that has always i mean i know it seems to me a little bit odd if if we can't tell if there's an unreasonable that way because you haven't articulated what you've been up to or what or why you haven't been up to this because of other priorities or what reason there is for the lapse of i guess now two years i don't think that in common and the track analysis that this court and the d c circuit have performed in other cases because usually look to what what is in the record at the time and the passage of time here it's ben just under two years and as your honor pointed out in your earlier question there have really been no cases that have found a reasonable delay in under two years and the families for freedom i think even that case was a two and a half year delay but most i had been substantially longer in the traffic case itself and i assume you recall the details i think they didn't find any delays to justify mandamus but they did i think there was a basis for retaining jurisdiction and so even though the mandate issued in that case they required which rather than continuing to lay it was my understanding but but i guess that typically i mean you have more experience maybe in the d c circuit cases than i i mean is that something that courts would typically you know when they find no one reasonable the way is i think what we're concerned about is how do we even know if there is an unreasonable delay here because b a hasn't put anything in the record about what it's been doing since the fall of two thousand and sixteen when it wrote this letter to congress i don't think that's right you're not right that you haven't put anything in the record or it's not right that we can't review it it's not right that there's been an unreasonable delay here because they haven't put anything in the record there is information reference there to the notice of proposed rule significant and potentially deadly helped issue why isn't two years on the reasonable one your honor again because it's not two years where it's just an agency recalcitrance if that was what we had  there it might be a different situation well in hand here in the record is activity up to november two thousand and sixteen we don't know one way or another whether anything's going on you can't represent to us one way or when appropriated funding is available that to me i mean again that is a very weird description for what b s going to do but it suggests to me that they've said we're not going to look at this anymore until you tell us it's ok and again we are saying that and till they get appropriate funding i don't think that's right connor i think what is in their mean this is all the power up we have nothing else the proposed rule making doesn't help you at all because it speaks very strongly pro why this proposed exclusion or th should be gotten rid of well i would disagree with that your honor because a notice of proposed rulemaking as we've been discussing this morning it wasn't signed by the secretary it was withdrawn it was never published by and say good analog case to agency is working towards this but in that and then say but it's been withdrawn i mean i don't understand how you can rely on it as the agency is making progress on this issue when in this letter they say it's been withdrawn and we're not going to do anything else until you a indication that you've done anything since november two thousand and sixteen your honor if it gets to a proposed rule making yes but if they're reconsidering that the notice that they had for the proposal they previously consider and are trying to reconsider now there's nothing that would normally come out and issued to the public or published for notice and comment why they're still considering the issue well this is a very health issue nobody disagrees about that and but isn't that the point of no i mean this judge toronto was talking earlier i mean even if there are difficult issues that require further analysis isn't that part and parcel of sending out the notice and getting comments on those issues or how much do you have to do before hand and how much to  do and then they issue a proposal but that's not simply more frequent when you're talking about operating on a clean slate where is in this circumstance we don't have a clean slate there's a rule in effect that does one thing and they talk thinking about removing it so it here again that the secretary is the one with broad discretion as this court has recognized to determine what benefits are needed and i think the agency again can be considering that again we don't have the agency reasons behind  a is the secretary and the second guessers and i think secretary now is the acting secretary and the people who work for the acting secretary are they engaged in anything that might be two things might be considered active consideration of this and second any enlightenment about what i guess then secretary under secretary shell can meant by this when appropriated funding is available i mean i suppose one might read it to mean that change is not going to be made when the until the appropriate appropriated funding is available but it might also be read to mean we're not even going to explore the issue until appropriated funding and i'm not quite sure how to read that some sort of regularity we have to wait and see actually it's like they are not just putting it aside yes but we don't have a blank slate here we have a letter from the secretary that can be read as suggesting they're not going to do anything on this your honor i just don't think that's with all due all that research that's going on right here by other doctors by other organizations and decided to take this on to considering they have the theory that he has a very unique population that it takes care of and there are certain risk case well there are other exclusions and for instance the experience with i d f treatment was not covered congress did provide separate appropriations for that but that's in the exclusions so there are a few others but the costs involved just the procedure because it's my understanding that they do the v a does cover costs associated preempt post race surgery so to the extent surgery causes arguably i think  saying might cause some other things to have i mean that's that's already covered by the v a that's not a digital cost posed by the surgery because people are free to go out and have their outside the surgery and the veterans administration is already committed to covering the costs of post well let me ask you another hypothetical and i appreciate that you were resisting judge toronto's invitation to suggest what the reasons are for the delay hypothetically if the real reason were that we've had a change of administrations and we had to fill sixteen assistant secretary slots many of whom are involved in this some we haven't gotten one confirmation through the senate and now we have a transition with respect to the secretary it's just a matter of manpower in the transition do you consider that a legitimate basis to excuse unreasonable the way or not at all because you just can't go there i mean perhaps  ferry different but if you have a statistical historical analysis of how the petitions for review how long the v a has taken historically and you know your honor i would imagine it would vary greatly depending on the petition and the complex place under twenty eight you will see sixteen fifty three not under five o two and under the theory that it's in the aid of the jurisdiction to ultimately do the review once the thing is decided so why isn't it in either of the five applied the track factors don't we couldn't that be a reason that we need some more information i mean that says what the last factor is the court did not find any impropriety lack of looking behind the agency lassitude in order to hold that agency action is unreasonable  bit difficult to evaluate that with no rationale coming in from the agency side i don't think so your honor because that's generally sort of concerned allegations of bad faith and here they're some certainly no allegation of bad faith and again it's not an instance of agency recalcitrance we've seen that the agency has been doing something granted there's been a bit of time where there's nothing on the public record but there is the notice of proposed rulemaking so it's certainly and you know and there's no congressional a reasonable delay at the time this court in the d c circuit abound in other cases the agency's position and we don't know we actually have no i haven't been given any explanation i understand that if you can see we're telling you that there are delays because there are senior personnel responsible for decision making who are not confirmed by the senate that may be something you would want to consider i would still take the view that those concerns are outweighed by the profound medical need confronting the nation's veterans but that's certainly a factor this or it could consider those concerns might be at least a little bit more legitimate if we knew the underlying personnel were actually moving forward on the girl making were just awaiting confirmation from somebody that can actually sign off on it absolutely and i think you know that agency's inability to represent that there is anything the making but if we're not willing to go that far we just want to be able to respond about what it's doing and why it has it or and what its decision is they suggested one hundred twenty days in your i think in your reply review so does that ninety do you have any real objection to giving them one hundred twenty days i do but i don't think that i could justify the difference in thirty days but to be clear your argument one distinction is important i don't think it's reasonable  the agency to explain that still way that means that we would have an explanation of the delay rather than the substantive disposition of the path of the situation you agree with your friend that we should just if we go that way we have to apply track and part and reasonable to unreasonable if we were able to conclude on this record that there's been a reset of the lay the what's the problem before that a predicate to ordering them to do it or to do something or to issue an order that's far should be that's thirty five i think my only concern appeal the decision that it's been reasonably delayed because their explanation doesn't suffice two years from now when we sang in the same position arguing that there should be a remember for them to now give a reason explanation of why they deny their petition on the merits and quite honestly better answer a title to better we're not entitled to you know not need my clients are not entitled to you know remember this work for the agency to finally getting around to justify it's true your delay to the people of the united states