thank your honour's mark rosenberg here on behalf of ralph taylor and orion insurance i like to reserve for minutes please this is a fact recognized by the state of washington itself in two thousand and fourteen washington's office of mine the words in women's business enterprises certified mr taylor is black and certified orion as a minority business enterprise and the feds are supposed to abide by the well it's a fact though the fact that those washington certified that's right whether they're and what the underlying facts are that's another pro your honor but in washington it's a simple fact that as we stand here today mr taylor is certified as black in the state of washington washington yes a zero in washington correct but at the same time the same people looking at the same evidence and under the same standards your honor have certified that mr taylor is also not black this case is about whether a single applicant whether there's an issue of fact as to whether a single applicant was treated in an arbitrary and capricious manner or otherwise contrary to law do we get to look at the underlying evidence as to his race or are we finished once we see that washington has certified him well your honor i think that there are the file does contain sufficient information but i do believe that under the statute under c c c f r twenty twenty six c f r once he presents an affidavit that says he's a minority he has be presumed a minority and i would think that if they have already certified him as black these same people that should be conclusive there shouldn't be a need to look to use a state rule to make determinations about a federal are in fact a minority i thought the presumption was quite different so what are you specifically relying on for that's explicitly stated in forty nine c f r twenty six point sixty seven once he submits the affidavit which which portion of that i have it in front of me read me the language that you're you're focusing your honor i don't have it in front of me right now it is contained in the statute ok well what language it basically in indicates that by submitting an affidavit a person is presumed to be a minority it's in the briefing it's in the statute well let me just are you talking about one because all read it to you if you don't have i don't know why you don't have it in front of you but if you want i can read it to yes your honor it says subsection is in title presumption of disadvantage and it goes on to say you must regrettably presume that citizens of the united states or lawfully admitted permanent residents who are women black americans black american to cetera et cetera or other minorities found to be disadvantaged by the s b a or socially economically disadvantaged individuals that's the presumption it's not that just because you say you're black for example that you are in fact african american that's something that you still have to prove and you bear the burden of doing that but by submitting the affidavit that you are and it is in the statute and i apologize your honour's by not having it in front of me it is in the statute that by submitting the affidavit the presumption arises that you to merely by bike by filing an application claiming that you are the presumption is that you that you are well it's more than an application it's an affidavit sworn testimony and combined with their of him obviously mr taylor had provided sufficient proof that he was black to be certified and then recertified by washington state and it's the same people looking at the same evidence i'm going to the same standard i'm to still really like you to point me to the language you're relying on for this presumption because i think that's where your entire argument goes off the rails frankly you assume that merely by submitting a piece of paper that says i am black that there is a presumption that arises that you are in fact a member of that minority group and i don't see anything in this this regulation that you cited at least that says that well it's in the briefing i'm talking about in the race in the red in the i mean it is in the i will attempt to have it for your honor counsel your is your principal claim under the a p a what's the principle claim here well there is a claim under the a p a we also have discrimination and due process claims and the a p a of course basically says that a person should not be treated in an arbitrary and capricious manner i'm trying to figure out how the summary judgment rules interact with the arbitrary and capricious standard of the a or i'm trying to figure out how those two things interact right well the court did grant summary judgment on the a p a claim and the a p a of course at five u s c seven of six subsection two it requires the court to set aside an agency decision or findings that are quote arbitrary capricious and abuse of discretion or otherwise not in accordance with the law and quote and that includes the other was not in accordance with includes the discrimination and d process basis excuse me your honor basis and if you look at all of the things that happened here there were issues of fact this is a summary judge well it was decided on bo summary judgment and rule twelve b six motion on the pleadings and when you look at it sir there is certainly evidence that raises questions of fact for purposes of summary judgment as to whether mr taylor was treated in an arbitrary and capricious manner you've also got what's your best evidence that that mr taylor is black i've looked at the evidence i native american and there's evidence in regard i mean the six percent native american which is ten times more than the individual who had the company a o r international now let's go on the a test how much do we know about the reliability of d n a tests in this form or for this purpose now d n a tests are pretty good to something there's no cheating or contamination in saying that this piece of fluid matches the d n a and we got that that's pretty good my understanding of d n a tests from ancestry dot com twenty three and me and various others including one here they are pretty imp and there they give ranges the i think they may come back and say you are six percent x but in truth what they really have is a range and they've given you the middle of the range i mean what do we know about that in the record i mean from about reading so i mean i i do have some background in this as a layperson but just reading about it what you have in the record as to how reliable these d n a tests are as to percentage of ethnic ancestry well i don't know if there's any evidence specifically in the record in regard to this particular d n a test there's been arguments one way or another that it is or is not accurate and what it may be to some degree but i don't think there's any hard factual evidence in regard to this specific test but certainly the test is out there and even if you consider that there's a range mr taylor's in within the range of  having this d n a and the statute itself does not provide any specific minimum quantum of what am i supposed to do with for example is a birth certificate where both parents are described in the birth certificate as caucasian  mr taylor's birth certificate now says he black and native american law he sent something into the state of california but his birth certificate remains unchanged well as birth certificate was changed it was and the state of california is now willing to certify that he's that he's black they have issued a birth certificate this says he's black a native american that's submitted in it's in the record and in regard to the native american like i was talking about here with the a o r i mean again getting back to this is about whether there is a question of fact as to whether he was treated in an arbitrary and capricious manner of fornia and undertaken in the independent investigation or they don't entirely upon his say so there's no evidence in the record in that regard but it's a it was the public record it seems to me pretty clear that whatever the state of washington did he did so on his date of california did it on on his say so i mean there they did not they perform no independent investigation well he requested it i don't know what if any investigation they did but it is in the record he has a birth certificate that indicates he's black a native american now but again i'm just getting back to the the issue the issue is whether he was treated in an arbitrary and capricious manner for purposes oh i think i've used up my you're in to your four and you basically submitted an affidavit representing that he his father is of a certain racial makeup based on what we don't know but what we seem to know is that the state of california simply receives those  correct your honor the original birth certificate the contemporaneous record of his birth represents that his mother and father are caucasian and he is simply sought to amend to put in a document that amends that but from what i can tell the state of california does nothing but receive that the important thing to also is that this it occurred entirely after the district court's judgment in the matter there's been no effort to supplement the record and so this isn't even before the district court when it makes its ruling so the record is the original birth certificate this is all after the fact the graben of this appeal is appeal is a claim under the administrative procedure act the department of transportation acted within its authority in not arbitrarily and capriciously in determining that there was not substantial evidence in the record to support the appellant's claim that he is of the groups the minority groups that provide for a question that i want to ask mr rosenberg which is what is the interaction between the summary judgment standard and the arbitrary capricious standard the night circus been very clear about that your honor and i'll cite you to occident the occidental engineering case seven fifty three fed second at seven sixty nine and basically what that case holds is that because district courts are not finders of fact in the in the setting they are simply making a determination of what based on the administrative record and are bound by the administrative record which is the body of evidence in the case and they're making essentially a determination of law whether or not there's substantial evidence in the record whether or not  the decision is reasonable under the law whether the agency considered things it's supposed to consider did not consider things it's not supposed to consider and made to receive reasoned decision on mr mr rosenberg's arguments as well it's not just that whether it's arbitrary abuse of discretion is otherwise whether it's contrary to law and since there are other statutes that might be in play here at discrimination standards are discrimination statutes and the equal protection clause then because those things come into play  i i i get that i get to say well the record is indeterminate therefore it has to go to a jury under summary judgment a strange overlay and i had i haven't i haven't i can't say that i've seen it before well he has made from what i can tell the appellant has made certain claims outside of the a p a based on the constitution those are still questions of law so i'm not quite sure how you get to a jury on that the the equal protection argument as far as i understand it is argument as i've put enough in the record that a jury could decide that i am that i am black and ought to go to a jury to decide whether i'm whether i'm black or not black well the problem is that under the unconstitutional activity by the government that's within the court's jurisdiction but the body of evidence is still the administrative record that's before the court that's very clear in the a p a they can seek to supplement it and they did seek to supplement it however the district court determined that they had not shown grounds under the four bases bases that this circuit allows for supplementing an administrative record if they're bound by the record your honor that's that's our that's our position so having considered the evidence the the department transportation made a correct decision that there was not substantial evidence in the record to support the claim that the appellant belonged to the minority groups he claimed the only evidence has been pointed out here that he seems to be relying on are these d n a by incest retests there's no evidence in the records the reliability of these and i think what's what's occurred here is that the appellant is trying to create these tests as equivalent to stating somebodies race d n a by incest he is very clear and it's and it's on his website but that's not the case what it is measuring is an estimate of biographical incest or in the other words where someone's genial logical ancestry comes from what parts of the world but they're very clear and in what percentages and they cite them as estimates but they're very clear that's not a measure of race so to say because i am six percent of  estimated come from sub saharan africa means that i'm an african american simply is not based on anything in the record and i would say if ancestry by d n a if they were here would not stand by that either it's very clear on their website same with his claim to be native american yes history by d n a says that the test is measuring indigenous americans which means according to their website north america south america central america but under the department transportation standard test to a measure of race simply doesn't hold up it's not a it's not based on the record now maybe it's some evidence and that it wasn't rejected by the state in considering mr taylor's claim to have these group memberships but there was no other evidence that he came forward when he was asked to legitimately that would sustain that claim and by the way your out of mr rosenberg is not going to find any regulation that the certification by washington state correct what consequence does that have i think it would be something that the department transportation would consider but it isn't equate to a certification that the party transportation recognizes that someone is part of a racial group that it's decided under a completely different evidentiary standard i think my colleague from the state is going to talk about that a little bit more but so less strict stand that that's not itself evidence and i don't see anything that's because of on the feds correct the regulation is not set up that way at all so i'm just about out of time so i will let my colleague from  morning your honour's assistant attorney general mike throckmorton here on behalf of the washington state office of minority and women's business enterprises i want to begin with where you left off judge fletcher which is what precludes of effect if any does the state's determination have in federal determination the answer is none whatsoever the state regulations make very clear that state certification doesn't count for anything else but state certification the reason for that is because it unlike the state program the federal program requires consideration of whether an applicant has held himself out as a member of a presumptively disadvantaged minority group and whether he is regarded as a member of that group by the relevant community this prevents i think yeah i mean i think that skips over a couple of steps in your opponent's argument and that's why we're anxiously awaiting to see statement to that effect the provision you're talking about is forty nine c f r twenty six sixty three and that that provision only kicks in under a one if the reviewing official it says has a  founded reason to question the individual's claim of membership right and then you go into have you held yourself out to other people regard you as a member of the money group he's saying that the agency erred by even getting to that point so maybe you can address why he's wrong on that yes your honor and i have the regulations here before me the regulation that we're relying on is forty nine c f r section twenty six sixty one subsection e which the civically says that in making determinations as to whether individuals have met their burden of demonstrating group membership the state is required to consider all the facts in the record viewed as a whole they're not limited to the declaration that is provided otherwise as you accurately point out somebody could meet their burden by simply declaring that they've met their burden that's not the regulations regulatory system that we have  indeed even the presumptive the regulation that defines the presumption as you pointed out twenty six sixty seven subway contemplates more than just a bare bones affidavit saying i am for example a member of a presumptively disadvantaged minority group well the presumption that that the reg set up has nothing to do with your membership in a racial group that's i think the mistake your opponent is making yes i give you a presumption if you have shown yourself to be a member of a minority group that you are socially and economically disadvantaged that's the presumption you get  thank your honour's and i do apologize i do not have an additional cite i would request the court to look at the briefing because it is in the briefing look at what was the one you cited six twenty six sixty seven  your time to check it out and then you'll let us know were in the reg that it's about you know a page long ours the court inviting me to submit i thought up to me well let me ask you this you're relying on that particular regulation or you're relying on some other regulation in order you can't now remember that is one of the regulations we were a lot relying on as i recall it was in conjunction with other regulation reefs with you you know i've i've argued in quite a number of times before this court and my in my experience if you're sitting there looking at different pages in the brief you really don't have time to argue it and you're the one trying to have it repaired so no i do not have it or them or that or the regulations you're relying on i did not know it would be an issue today before the court and i apologize well listen unless we send out an order with a request to you to identify anything more and to the briefing you don't need to respond leslie send out an order a status quo stance i understand your honor but i am going to get back here and i haven't gotten a chance to make most of my arguments i appreciate the court's questions and the opportunity to answer them but it does come down here to a summary judgment standard in a twelve b six standard and under four sixty three u s forty three the supreme court the united states supreme court says that an agent's decision agency's decision is arbitrary and capricious if it relies on factors congress didn't intend fails to consider an important aspect of the problem or offers an explanation for its decision cruncher contrary to the evidence and i believe all of those are are true here it was contrary not to certify him as black when they had already certified him as black you just mixed up the i mean i'm sorry to sort of fight it was black and white now we're talking about the feds well the state acted as an agency for the feds it was the same people looking at the same evidence think that maybe is most most inexplicable is not why they didn't follow the first as to why they didn't follow the decision when they made it pretty o t it's why they made the decision from washington in the first place well that's done and they've never questioned that and in fact they recertify him while saying they had but why is that why is that binding on their on their subsequent decision well it indicates that they're not looking at the evidence before them because the evidence before them is that they time i'm sorry if they do look at the  time the case was going on for a number of years before they made that decision he was under review for quite a long time anyway your honors it looks like my time is running out i thank you very much and i would request that you do look at the briefing arguments orion insurance group versus washington office of minority and women's business enterprises submitted for decision