headed for a severe undercount of communities of color this undercount will deprive plaintiffs of the millions of dollars in federal funding and their right to equal and an undercount of african americans was once mandated under the laws but today the bureau has a constitutional and legal obligation to ensure communities of color are counted equally instead however the bureau has adopted several procedures so conspicuously deficient and without explanation that will ensure and what will lead to an undercount of communities of color these include the slashing of field offices including opening only half the number of field offices as in two thousand and ten the district court dismissed but the political question doctrine in decades of census litigation courts have never held claims regarding the census cannot be reviewed prior to the beginning of the census moreover plaintiffs properly target final agency actions in the form of select and discrete decisions by the bureau laid out in the final operational plan about the procedures for conducting enumeration these procedures are not entirely committed to changes to discretion as the supreme court held just last ter it will soon become truly to remedy the census bureau's she procedures and the government will fail to meet its basic obligation to take reasonable steps to enumerate all of the population i'm not understand in your view is there any scenario where there's inaction by an agency so you describe the situation here is a affirmative decision to not hire write an affirmative decision to not open so described every failure to act could be described as an affirmative decision to not act and so in your view of the of the world so long as it's described as a decision instead of a failure to act then in your view that's an affirmative act the decision can be the affirmative act itself your honor the decision affirmative access where the bureau had information in its own surveys jesting there would be an accounting yet chose to deviate from past practices and we believe those are of permanent decisions rather than a decision not to act because they chose us how many readers they would hire but is is there is there i guess what i'm just trying to understand from your perspective is there ever an action right give me an example of something that would be in action or a failure to act to implement the plan so that's an affirmative decision not to employ client four of the plan or whatever it might be right so why would that be any different than than the scenario you've described you know where the euro or any agency has an instances where he failed to act but we're not bringing seven o six on challenge but that's the difference there's so that's what i'm trying to understand this and maybe maybe it's just maybe i'm not asking a very good question but so i get the decisions on how to conduct the census so the use of the internet so if you would char you know challenge the census beares use of the internet with the questionnaires that they're sending so if you challenge that seems like a choice write an affirmative act we're going to use the internet but that seems distinct from of failure to use actual enumerators are there to use enough actual enumerators in your world that the action and action distinction there seems had you challenge t of the internet i'm understand that's an affirmative action but the decision not to take action i don't see how that is a firm or day of action on behalf of an agency your honor we believe that have can be reviewed in the context of a firm of choices because agencies when they make such decisions are required to provide an explanation and that the bureau has an obligation shows that in order to get relief that they failed to take action that was legally required you don't have to show under our city of new york case that came out in january of this year don't you have to show that the refer me if you would to specific paragraphs in your complaint your honor in the complaint for instance in discussing the bureau's constitutional obligation no i'm not talking about the enumeration c i'm talking about the a p a claim and our precedent of the city of new york yes your honor in city of new york it was required that agencies untalked actions there lou part of we believe that both the senses act in establishing the obligation for agencies for the bureau to conduct and actually ration as well as subsequent appropriations to the census bureau including the most recent twenty one thousand dollars appropriations act the company in conference report established a legal obligation for ration and that the six actions challenge i plaintiffs are steps that are necessary to ensure that it is meeting that obligation and i don't mean to interrupt you but i would just one tell you what my concern is i'm really worried that you aren't meeting the mandate of city of new york in your pleading and you've also got a problem with discreteness because just take a look at joint appendix forty seven page twenty nine of your complaint  u response efforts now when a bill of mean when a complaint talks about sufficiency it's not talking about what's legally required it seems to me so how do you take care of that problem by pointing to us someplace in your complaint where you're alleging not just the broad principle that you have to count because everybody agrees with that but that you've identified actions that are legally required within the meaning of city of new york your honor these actions are legally required in the context of city of new york because there is stash twenty language indicating that the bureau must increase its outreach efforts and ensure that it's gauging in for instance as the train an appropriation that conference report suggested targeted communications and to open questionnaire assistance centers and we believe that wall the complaint is that still you said two different words are you said statutory and then you said a conference report is there an actual statute or are you just relying on the legislative history to create this mandate your honor we are both online on the statute in the cens and the twenty one thousand appropriations act to the census bureau and then the conference report accompanying the appropriations act clarifies that request what the bureau is supposed to do with its appropriated funds in ensuring that it conducts greater outreach to communities of color such as plaintiffs and so we believe that consistent with the way the census act has been interpreted by the supreme work in ensuring that the bureau adopter seizures that there are reasonable relationship to the actual ration that establishes a standard that the bureau must adopt the jurors that bear reasonable relationship to conducting that action numeration which they have not done here by adopting six procedures that so conspicuously violate the goal of actual ration and that the bureau's public information already indicates that some of those decisions are not supported by evidence but moreover we are simply at the pleading stage of this case plaintiffs have alleged and the wealthy did complain that these six actions will lead to an undercount and are not supported by the evidence before the people but we simply see for this court to hold that these are finally agency actions and to reverse  that administrative record can be developed and it can be assessed ok when this mr brown excuse me for interrupting again and i think that you know the supreme court clearly was concerned about an undercount to win it it dress the citizenship case  and that's a very serious issue on so many levels i mean i'm completely with you on that but again my concern is how your your your phrasing your complaint and whether your complaint is too broad with regard to the numer that looks to the explanation provided by the bureau in the context of the evidence that the bureau had in front of it in making these choices ok is there any role that i mean looks like you've left pretext pretty much out of your complaint  think you have a an allegation to pretext that page twenty five of your nd amended complaint but i don't see any allegation of pretext anywhere else how does that play into the analysis here if at all you plaintiffs are not focused on whether these allegations are potential particularly at the pleading stage which we are out here where in the record has not even been produced to look at the explanations but rather based on information that's already available including reports from the office of inspector general is reason to believe as plaintiffs have pled and there will be a complaint that these actions are not supported by the evidence that was before the bureau and so the claims are focused on whether these actions were arbitrary and capricious your honour's i see that my time is coming to a close we ask that you hold the plaintiffs have standing and their claims are just issued ball as numerous courts have done including the supreme court just last term in the context of assessing the injuries resulting from an undercount and haul that plaintiff's challenge final agency actions as these six actions are discrete and appropriate for review by this court and to remand to the district court so the administrative record can be expeditiously developed th resources nearly fifteen billion dollars across a decade across two presidential administrations and there simply no basis for plaintiffs complaint here that they would prefer the census to be carried out in a different supposedly better way as opposed to the matter in which the census bureau has determined to carry out the census this year as reflected in its operational plan now in two thousand and eleven congress indicated to the census bureau that it sought for the agency to learn from the lessons of the two thousand and ten census and to try to come up with more cost effective efficient ways bringing the taking of the census into the st century and that's what the operational plan version for the operational plan here reflects reflects the census bureau's carrying out of their expertise and taking advantage of technology in a number of ways in order to ensure that within the cost constraints imposed by congress that we can take the best most accurate census in two thousand and twenty and beyond and  of what plaintiffs complain of here is that some of these deficiencies deficiencies are actually attributable to congress and so for example and g eight hundred and twenty nine dollars paragraph thirty nine dollars plaintiffs allege that congress approved approximately ten just said we don't think that that's necessary this is within our discretion how would you respond to that today if that were the issue that's an entirely different you know i'm asking a hypothetical that's that you know the nature of hypothetical i so tell me what would the government's response big if you just said we don't need an r f u program and i think it's just impossible to say in that scenario without understanding more about how the bur old deliverable addresses to look at whether these units exist we're getting rid of the program how would you i just want to know how far your case goes in terms of defending the discretion of the agency and i believe in your honour's hypothetical there are there is one choice to just circle choice to carry out non response follow up operations that in your honour's hypothetical i believe was wrapped up in a number of different ways number of decisions along the way to use technology and other means to carry out the census and so for looking at a situation like that we have and millions of logistical decisions over the course of ten years and you can hear across two presidential administrations in that case it is very difficult as this court held in city of new york for were to come in and to determine in its own expertise whether or not those decisions are a proper ordering of the a word let's get a little more i'm sorry if i thought you were done with your sentence there a little simpler then what if the census bureau said we're not going to hire a numerators no new marriages this would be a discretionary decision th e we would up hold if the census bureau refused to carry out the census no they've said they've said we're going to count we're going to look at administrative records we're going to go to the national student loan corporation and take their records we're going to go to master card and visa and everybody else and we're going to count that way we're going to count match addresses with people we don't think there's a need for numerators with what would your response be if you were coming into court to defend that i know that's a very difficult question not knowing what the administrative record is not knowing what the specific claims are whether or not they're equal protection claim or something similar and certainly there is no such claim here i think it's very difficult to speculate in terms of that type of pathetically but what we know here is that for example  if they don't know any of numerators that means they don't have anybody doing a kale that would mean they just failed to do a count all together and you would agree that that would be a reviewable decision there's certainly a statutory constitutional duty to carry out think there's any dispute about that right now i'm not talking about that i mean i probably should've been more specific in my question and i apologize if i wasn't what i was talking about is a situation where they're saying we're going to run our refuge only from our administrative offices enumerator is ever going to hit the street wasteful we just don't get enough people counted by sending people human beings physically out on the street we're going to do it entirely in the office and you're saying that's that's defensible you know what i'm saying honor is that we're not asking the court to make what we're saying is that this is the sort of quintessential example for example anderson the city of new york case we have an agency carrying out a large program right with a number of logistical challenges cross the decades and just as the court said in the city of new york every government program can be thought of in some way as an aggregation of individual government decisions but the court this court in city of new york says that not sufficient to implicate final agency action and the same thing is true here you're simply a lack of a discrete each and see action in the manner of agency rule order sanction the plaintiffs  sounds like what you're saying or at least getting close to saying is that if they decided to use no shoe leather so in other words nobody's going to the street that is long as they were doing other thing to to constitute an in r f u right sort of following up but they're doing it in different ways but maybe not physically with shoe leather but they're doing it with e mails or satellite imaging or these  bills all those other sort of ways of following up that because that looks a lot like where we are now that type of a judgment would not be review example and in for example the year three thousand and might not be possible for us today to speculate as to how vance's of technologies the even see under congress's direction my undertake to carry out the census and so if there is a scenario for example as they said with the census bureau is refusing to conduct the census then we have not argued that that would be on this report told us as much in the new york he's right but those are those are the distinctions in response to that if the census bureau decided to take that tack one response would be to take back its constitutionally mandated role of determining how the census is conducted by congress is given by the constitution congress has now passed it over to the executive nobody's claimed that that's an improper delegation here but for that would be for  plaintiffs in their reply brief discuss that they believe there is a mandate in the legislative history for the to open a brick and mortar questionnaire system centers with these reports reflect is that there has been a dialogue between congress and the executive and congress is recognizing these reports that the census bureau has at the urging of congress come up with a new plan for mobile assistance centers in hard to count communities this is and this goes to the type of program magic challenge leaders are bringing also because aegis in its expertise has must go back and assess back in two thousand and ten how did these brick and mortar questionnaire assistance centers what was actually the output in terms of how much money they cost  so if your honour's if you refer to these reports into the report that the census bureau has transmitted to congress outlining i'm in broad strokes its plan for mobile questionnaire assistance program you'll see that the census bureau and its expertise is able to go back in and look at that help and compare it to the way we might use technology today and wouldn't it be better if we sent an individual with a tablet for example into what we label hard account community where we think that individuals are more likely together so that they can answer the census on a mobile device right there and then as opposed to handing out flyers seeking boxes of flyers who an event that would encourage somebody to go back home and fill out their paper and pencil questionnaire is all  it sounds good counsel but it's not realistic in terms of the record here first of all we're talking about the power of the courts to intervene in a constitutional violation a judge ri question to suggest and i guess you not it affirmatively that the answer is congress to go back and make it better that's not the answer to the power of this branch of government to address a constitutional violation do you agree that the most important part of our decide that you're going to cut down on how many times you all follow what people who are hard count people respectfully the court is in no better position to make a well we'll decide how better position is but st as how do you come to a conclusion already that you need to cut no initiative record here to this is precisely the kind of policy disagreement that this court city of new york pointed to and said that it is impossible under the administrative procedure act imposes vital restrictions on the separation of powers that grants or it's tangling themselves in abstract policy disagreements like here like whether or not seven points of contact are better than  points of contact whether or not sending for postcards is better and sending five postcards spoken as well as just common sense maybe if if you spent the amount of money you did at the last  want to count the people if you really want to cannot everybody how does that make sense to be clear not going to be not to be clear what was the counsel counsel please don't talk over i'm asking you a common sense question i haven't asked it yet does it make common sense if you fail with the number of the numerators you had ten years ago you failed with the appropriation ten years ago how does it make common sense that you want to cut back on money any numerators i mean just common sense get out of the books now and talk about the plain language of trying to count everybody under the constitutional mandate how does that make common sense if that were the premise your honor but that is not what's happening here because according to the most updated lifecycle cost estimate the census bureau is on track to spend more money than it did in the last census so that's why i said when i began my dress is not a case yes you the operational plan this is final correct it's hard to kill yes and no it is a final no it's and you're not evading your honour's question i'm simply trying to be clear whether or not your honor is asking in terms of final agency action or the extent to which there is going to be the final operational plan is it final it is not final in terms of finally agency action and it's not final in terms of the agency has discretion and authority to hire more and nothing in the operational plan is binding on the agency itself the agency retains flexibility she someplace on the court will never have jurisdiction in these cases because we can always change and be better and do dynamic and that the bureau retains the flexibility to respond to a number of challenges in the field as they arise but to we are not advancing a novel theory here we are advancing a run of the mill basic principles of this is my question if you can answer it was the district correct in holding that the enumeration close claims were not right and just so just to explain where i'm coming from with my answer to the district court's rate is folding relies on concerns that that is is a separate holding from standing concerns which we think are implicated here no matter when plaintiffs might bring suit and so as we've explained in our briefing there are having a little trouble understanding it was the district  correct in saying these were not right and so i think a lot of these concepts are on or are very in extra intertwined so and i'll quote from the district court's decision so the district court was concerned that plane just allegations are resting upon contingent future addressing enumeration clause claims none of those cases involved non discrete non final agency actions and in fact to those cases involve situations where congress specifically passed a law conferring standing on sort of i'm going back to judge keenan's question a little bit i read your brief in essence to ask us on the enumeration cause claim to affirm on the ground not expressly articulated below that they lack standing for sort of the reason that under girded the rightness decision by the district court is that a fair reading of what your argument is yes you're ok and then so except that you just go with yes where you can if that's true just briefly answer why we should do that as opposed vacate the district court's decision on rightness and say whatever it is not a rightness problem there may be that the district needs to take up questions of standing there maybe they need to take up other issues without prejudging those but we got the right miss analysis wrong therefore go back on that claim and evaluate all of the various other things that might be at play right from standing to fair to state a claim to any other defenses that might might be raised why should we reach out in a dress standing instead of sending it back to the district court implicitly finding standing we would just say we review judgments below and that sort of our job the decision below was not ripe we find at least in our hypothetical and i don't think you really and maybe there's a problem with the rightness inquiry like give us another crack at figuring out what the right answer is on that claim before the district court judge is a distinct question the jurisdiction and impedes another  my question and maybe you just have answered it all you can answer it but my question is is not the merit you want to argue the merits and i understand that is why us instead of the district judge to make that redress ability this morning may it please the court just occurring amundson talents i'd like to begin with the constitutional claim and address judge richardson's question about affirming on the alternative basis of standing but i would certainly like to get to a claim as well and address judge keenan's concerns about the city of new york case starting with the constitutional claim and i think it would be improper for the court to affirm on the alternative basis of standing for one reason because the decision on standing i think the district court did find the plaintiffs outstanding and found it in accordance with what the supreme court held in in the citizenship question case where the where the supreme court held that the same exact allegations the pla honor but the supreme court rejected that claim ultimately on the merits here or the district court has not allowed the plaintiffs to reach the merits of their claim it it dismissed the claim on brightness grounds and i think we can all agree that that was incorrect i didn't hear standing however the district courts standing in now says should be in accordance with the citizens with the citizenship question case in which the supreme court held that there is article three standing for exactly the same type of allegations that plaintiffs but there are i mean i don't i don't prejudge that but there are distinctions on the dress ability between this is a question and this one i don't know whether those distinctions matter or not and i agree it should be consistent but i want to make sure i understand is it one point you seem to suggest the standing decisions already been made so we should review that we can review that but then you say we should remain for further standing analysis  which is the sort of position you're really so you my position is that the court cannot affirm on the alternative basis of standing it can i there are find that the district courts it can reach the district court standing analysis and find that just report was claim because they just court erred in finding that the claim was not right if i could turn to your honor's questions about the city of new york and i want to be very clear here that city of new york is in apas it because city of new rational connection between the facts found in the decisions made and there has to be law to apply and there is law to apply and i think that the supreme court's decision in the citizenship case also answers that question in that it says that the census act and section saying what happens let's say we agree with you how do we write that opinion in terms of directing them to do something do a better job try counting more people seamstresses meant for your honor you don't have to write that opinion all that you have to do is remain and to the district court which still has hasn't even ordered the production of the administrative record it held that the a p a claims were not reviewable and that respectfully cannot action and action but the failure to act doesn't matter but the decision to fail to act or an actual failure but a failure to act is not reviewable under southern utah in the context that you've got and what i can't understand i started with your colleague on this is how a decision to fail to act is different from of affirmative failure to act and seems to me the city of new york in compass is both of those equally so you honor what we have alleged in our wellfleet allegations are that there are six discrete decisions that the census bureau has made and i'll take just one of them as a decision is a decision not to act now here on earth the decision is to hire a certain number of  s the hypothetical that your honor was positing earlier of hiring noah numerators so that there would be no non response follow up that is just a difference in degree not in kind it shouldn't change the review a we have alleged that they have they have set out a certain target of a numerators and that those enumerators will not be sufficient two and twenty two counts accurately count the heart count populations and as  judge gregory was pointing out in fact there have always historically been undercounts in fact communities of color under counted to such a degree in the last census that two additional congressional districts would have been filled with with people of color should have done at least as many follow ups as they did before they should hire at least as many enumerators as they have before which seems like an odd position to take because everybody agrees that that census did not meet the ideal that the constitution sets for the actual enumeration write it it under counted everybody seems to agree it undercounted and yet you want to say listen but that's what we want to do we want to get back we want to do the same thing which presumably we know will reach the same result right we've got no reason to think it'll be different and so that seems to be the gold standard in in your sort of view where i take the government's position and maybe this is getting too far to the merits but i just i'm curious your perspective on it the government seems to be seeing here last time didn't work right synonym out eight times didn't help so instead we're going to send him out two times but we're going to do these five other steps these five technology driven steps because like eighty eight dollars pairs of shoes or eight shoe leather visits didn't get it done so maybe to share the visits plus three postcards and an internet touch plus a database search of some sort like that that might actually like solve the problem which everybody agrees is a problem i've i don't know whether that's right or not i'm not sure how we're supposed to evaluate whether the whether eight shoeleather versus two shoe leather plus three postcards and internet in a database search that those are different in some way thank your honor i want to be clear that we're not claiming that the census bureau must do exactly what it did in that it cannot in a beat or try new things that is not the claim here the claim here is that what they have chosen to do is arbitrary and capricious and not in accordance with the law and that it should be evaluated against the administrative record so what we're saying here is that for example when the census bureau chooses to hire one rd less enumerators when its own studies show that the number of people who are likely to respond to the initial questionnaire from the census is twenty percentage points lower than it was in two thousand and ten that that is arbitrary and capricious and in a quote and not in accordance with law and that that should be evaluated against the administrative record it may well be your honor that eventually a court finds that the census bureau did accurately or did account for all aspects of the problem and that the decision is not in fact arbitrary and capricious but at the very least your honor we were we ask that this be so that the administrative record can be produced and those claims can actually be evaluated on the merits and respectfully we ask that it be done expeditiously given that we are facing a very tight time time