court erik macarthur for the petitioners and i would like to request two minutes for rebuttal you may the district court clearly abused his discretion and authorizing discovery outside the administrative record in this  and then compound that error by ordering the deposition of acting assistant attorney general gore although the gore deposition is what precipitated the government's mandamus petition i would like to begin with the threshold issue of extra record discovery it is black letter administrative law that a p a review is confined to the administrative records that where the agency has issued a contemporary contemporaneous explanation for its decision the decision must rise fall on the basis of that explanation and that court should not probe the mental processes of agency decision maker what if there's reason to believe that there are other considerations of the agency hasn't put forth so the narrow exception that courts have recognized the principles that i just outlined is where the plaintiff makes a strong showing of bad faith or improper behavior and you don't think the showing with regard to mr ross is no more and overly  any issue of bad faith that most of the supplemental memorandum shows that secretary ross had reached a preliminary view that this data could be useful in forcing the voting rights act and wanted to know whether it gave a different he gave a different explanation to congress so whatever when he testified before the hearing on why he was ordering this addition to the studs as if that in the title seven cases that looks very much like pretext when you change your reason for doing something your honor i respect respectfully but strongly disagree with the assertion that secretary rice has changed his explanation i'm aware of the testimony that secretary rice gave to commerce and i would be to to congress and i would be happy to address each of the three instances that has been cited in one of those three instances do i think it is fair fair to say that secretary ross was misrepresenting the record to congress and i think the key can textual issue there is that in one of those cases were the questions focused on who as between the department of justice and the department of commerce initiated this discussion the questions were not anywhere near that neighborhood and i think if you look at those transcripts in context you'll see that those statements are rather easily explained over the summer of two thousand and seventeen right that is correct your honor is there anything in a good trade of record that reflects communications between the department of commerce and d o j prior to that yes your honor there is and one of the dates of those communication i don't have the precise states at my fingertips but there are a number of communications that are reflected in many to september november apologize i didn't mean to interrupt you go ahead but no go ahead you're on  e there any that are there any that predate secretary ross's memorandum of feb two thousand and seventeen secretary ross's memorandum of letters a statement of twenty seventeen which becomes the focus of the requests for the extra record discovered i'm not aware of that iran but didn't secretary rice tell the congress that he was wanted to include the citizenship question to help enforce title two of the voting to x isn't that the reason he gave to infant force the voting rights act yes and that is the reason that he gave in his memorandum as well there has been no shift in that explanation the only confusion i think as between the original memorandum and the supplemental memory memorandum has to do with whether there were discussions between the agencies that preceded the memorandum the plaintiffs have tried to make out a case that the original memorandum was misleading because it began its re recitation of the procedural history with the department of justice's formal letter requesting the reinstatement of the question but that argument has no merit whatsoever i think we need to be very clear about what secretary ross's original memo did and did not say it did not say that he had never considered adding a citizenship question before he received the department of justice's letter and it did not say that there had been no communications between agencies prior to that formal request what is more it is not reasonable to draw those inferences from what the memo did say and you say that all this is so absolutely clear that the extraordinary remedy of mandamus which applies don't think the mandamus standard requires that no reasonable argument can be made otherwise it has to be clear case of an official refusing to do his duty it has to has to be a clear case of indisputable error and this court has outlined a number of circumstances that could meet that requirement it could be where the district court bases its decision on an erroneous view of the law could be where the district court reaches an erroneous finding of fact or the district court reaches a decision outside the range of permissible decisions and we think that the district court did all three of those things here so there is one counsel i'm concerned that the scientific staff of the department of the census bureau seem to argue that adding this question would depress turnout not increase it and so that's sort of you wonder why it would help with force one of the voting rights act if it would depress turnout rather than increase it can you speak to that that is the issue that secretary ross addressed head on in his original memorandum and he reevaluated the basis for believing it that would happen and found that there was not significant empirical support for that now that's an issue that the plaintiffs contest on the merits absolutely they can test that against the a p s standards for reasoned decision making but that is not a basis for finding that faith here that is one of the factors that the here was that secretary ross had overruled career staff but the district court committed clear legal error in treating that as an industry i'm a bad faith the supreme court in wisconsin versus city of new york expressly said the mere fact that the secretary's decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision and that is particularly true here because secretary ross explained why he disagreed with the recommendations of career staff and because the ultimate issue is one of policy whether the benefits of reinstating this question outweigh the potential costs and as the supreme court explained in wisconsin it is the secretary not the career staff to whom congress has delegated its constitutional authority to make those policy choices there are a couple of overarching points that i would like to make here that framed this entire discussion separate apart from the four specific factors that the district court relied upon in finding that face and the first concerns the lens through which the secretary's actions should be viewed here the district court appears to have accepted plaintiff's invitation to view the secretary's actions in the worst possible light the district court even said that it accepted as true plaintiff's allegations for purposes of the bad faith inquiry that approaches deeply misguided this is not a motion to dismiss where we take the plaintiff allegations as true and draw all inferences in the plaintiff's favor the a political presumptions and principles here all run in precisely the opposite direction for at least three reasons the presumption of regularity requires courts to presume that executive officers act in good faith principles of second principles into brent's comedy counsel caution before imputing bad faith to an officer of a co ordinate branch and that principle should apply with special force here where we are talking about a senate confirmed constitutional officer at the cabinet level but but the just took explained why he found bad faith he gave all the reasons why he he didn't feel that he had to accord a person a presumption of regularity to the commissioner he did and i would be happy to address each of the factors that he relied upon but i do think at the threshold it's important to understand that he didn't hold their feet to the fire in the way that he was supposed to this is a discovery issue and you so we're talking about what's allowed to be looked at no ultimately what what's determinative and so why is it that why is it that he has to have a mini trial and make specific findings of bad faith but then you know as opposed to kind of that there's sufficient showing here of bad faith for me to go ahead allow dish and discover to go forward i mean isn't you talking about this is a discovery matter this is not merits it is a discovery matter but the a political standard is that the plaintiffs must come forward with a strong showing not simply an allegation in that passes a bare minimum threshold of plausibility but a strong showing of bad faith or improper behavior and the district court did not do that here district court did not give the secretary the benefit of the doubt as the legal context here requires for the reasons that i've just explained if there's if there are if there are plausible innocent interpretations of what the secretary did here and there are for everything they have pointed to the secretary gets the benefit of that doubt in this waited too long there is a concern as to what timeliness of an application and then doing this is there are those that undercut the your argument of the severity in the necessity of this i don't think it does here your honor the the decision to seek mandamus from this court is a weighty one it is not one that the department takes lightly it is one that requires high level approval within the department and these circumstances two and a half weeks to deliberate attain the necessary approvals prepare and file petition i believe is reasonable promptness there is a second overarching factor that i wanted to discuss which is that secretary ross or the district court never found that secretary ross did not actually believe the rationale set i think it follows directly from a p a substantive law of what counts as bad faith or pretext if the secretary believed that the grounds cited in his memorandum justified the decision taken there is no basis for finding that he acted in bad faith it is not improper or uncommon for an agency had to have a favored outcome before full deliberation and final decision on an issue or to consult with his staff or other officials within the government about possible legal and factual justifications for that preferred outcome and there is no bad face when the decision maker believes the rationale on which he ultimately chooses to rest the agency's decision even if he was inclined in the first instance but isn't there bad faith when he says he relied on something and he made a decision before he relied on that very thing he said he relied on the opinion of d o j but he had that opinion before he even got the opinion of g o j isn't that correct is not your honor he had a preliminary view i think that is how this record should be fairly construed that when he reached out to the department of justice he had a preliminary view that could be useful for enforcing the v r a ok and there's you know there's a difficulty your book because the because the telecommunications were so tell me where in this record that pollution or a view is reflected short of mr gore's statement in december of two thousand and seventy so i think it's reflected in this up and tell me exactly where i want to see it i want to read it with you well i think the key point is at a dent in one seventy eight and this is in seventy eight and  changed here and it just doesn't support that he said as part of the deliberative process my staff and i consulted with several federal government components and inquired whether the department of justice would support and if so would request inclusion of a citizenship question as consistent with and useful for enforcement of the voting rights act now the district court looked at that sentence and said this could be read to suggest that the secretary had already decided the issue before he reached out to d o j but setting aside for the moment that could be read to suggest is hardly the stuff of which a strong showing is made that is simply not a fair reading of the supplemental memorandum but i guess what i'm wondering is is that how does the secretary know the department's views until ms to do or goes on the record do we know what the secretary knew from the department i mean i direct your argument is that the secretary is allowed to gather all this and i totally agree with you i mean i've had i've had secretaries serve the case in cases on a g w and in the department of defense matters so i understand and makes and that makes perfect sense to me but what i'm asking you is where in the record does anyone is anyone glean that the department of justice was consulted during the deliberations in which the determination to asses the citizens of quote citizenship question it was i don't have the exact citations at my car give them to me it is certainly your honor that there were standing here with the court room full of people asserting that those things were done but i want to know where in the record that that's there because i have to determine a long with my record that show that the department of commerce and a department of justice discussed this issue before the department of justice sent its formal request letter that is what the plaintiffs are trying to make hay out of they think that the original memorandum fairly read means that the  in the secretary's discretion is the secretary able to keep from the record to review those pull him and married discussions in which the department of justice is views were solicited with regard to the implications of the voting rights act and the ability to enforce section two of the voting rights act and the necessity of the citizens ship question up until the time that mr gore reaches his memorandum that was our position in the district court yes your honor that those sorts of pre decisional deliberative discussions should not be part of the administrative record the district court disagreed with that and that is not the subject of our current mandamus petition we are so that is water over the bridge as we say back in livonia well it may not be water over the bridge there may be an appropriate time for us to seek appellate review of that determination but that's not part of our current mandamus petition we are not here to quibble about what is and is not properly part of the administrative record we are we are here about once you draw that line can you go beyond  opened with what we could and what could or couldn't be considered in the ministry of record so i was wondering how far you want to write well the question is whether you can go beyond the administrative record and start deposing agency officials about their government point of sere i'd like to begin with the district court's bad faith finding i will note that we have our threshold objections to mandamus in terms of timing and waiver will rest in our briefs arguments for those points the government dramatically understates the degree of the secretary shifting rationale in the issuance of a supplemental memorandum what the secretary's second justification revealed was that the initial rationale for adding the citizenship question concealed commerces direct involvement in d o j is december twenty seventeen letter and treated what commerce had done as merely a response to an independent agencies for a freestanding judgment about what data they needed from that essential census and what the supplementals memorandum proved was that both of those were  was not an independent judgment from d o j this was done at converses request with commerces direct collaboration all the details remain uncertain and again with the motivation of commerce rather than sort of organically within the department of justice itself and the reason that matters is two things first of all for discovery purposes what this shift in position shows is that the secretary's sort of record before the court is not a reliable record in the first instance found there's a rebuttal of the presumption of regularity that attaches to the government's public justifications for its actions and i think that's highlighted by the fact that when the government first appeared in the district court the record they produced to the district court contained nothing proceeding december twenty seventh as though as secretary testified in congress they had done no deliberation on the subject before the department of justice letter now we know that to be false with the supplemental record they have produced i mean that is again a reason express your friend opinions and but when the agency comes to its decision what is the motive what is it we're going to do and what is the reason we're going to do it is a do or position that that the the the department is required to include in the record all of the preliminary discussions in which different people express different views and and prior to the time when the department focuses on what is its reason and what supports the the decision we think it does i mean the general rule for administrative record review is to include in the record everything that directly or indirectly was considered by the decision maker and there's no cutoff in time from when that happens everything that motivates or factors into that decision and certainly what is telling about this case is that the justification that they relied upon which the department of justice letter there were misrepresentations about the origins of that letter and the nature of the secretary's response this was again not a situation where commerce only began active consideration of this question following receipt of the d o j letter which is what they said in the justification this is not something that was done solely in response to the d o j letter which was ross's testimony before congress and i think what's important to note here is that we now know in part because of the discovery order that the government challenges that there were substantial discussions both internally at commerce and between d o j and commerce proceeding december twenty seventh the secretary has admitted he began pursuing this question in february of twenty seventeen after his appointment we know that he had e mail discussions with and phone conversations with chris colback and other outside stakeholders and early in two thousand and seventeen where they raised this question without any reference to the v r a we know that his senior staff members tried to solicit they were shopping around for a justification for this question in the middle of twenty seventeen they reached out to d o j which rebuffed their request they reached out to the h s which rebuffed their request and it wasn't until september when it was clear that all those efforts had panned out as secretary ross personally intervened and john gore entered into the picture from the department of justice all of those facts were excluded from the initial administrative record they are part of the secretary's deliberation in this case and what they highlight in particular finishes well i mean what i highlight in particular is that the idea that the secretary was responding because of a v r e enforcement rationale there's at least a apprehended and we are isn't that in the record so i think we have two answers to that one is we don't entirely know i mean part of the purpose of both trying to depose john gore who was involved in this collaborative effort between commerce and justice is to determine what information was exchanged between them and the second is we still don't know in part because we have yet to depose secretary rice which is a battle i'm sure will have in a week or two but that is the reason why discovery is important in this case and what indication and we have in the record is troubling i referred to the communication with chris callback that occurred early in two thousand and seventeen well before d o j slighter the rationale that callback gave for adding a citizenship question was to exclude non citizens from congressional reapportionment which has been illegal since for about fifty years at this point and so it's it's again we don't know what basis there is but because of the secretary's concealment of the underlying rationale because of the limited indications of his bases that we have in the record again as a district court found there is concern that this dissembling is really concealing what would be improper purposes for adding to citizenship question  to start off picking up on the question that judge pooler just asked which is why do we think this happened in of course in our complaint we have alleged that one of the mood feeding factors here was animist directed look in the supplemental a denim this is was included in the in the supplemental administrative record the basis for these allegations is there in black and white all the way back right after secretary ross gets confirmed in march  and he's forwarding a wall street journal article talking about the census and about the fact that non citizens in the words of mr comstock in this article are undocumented residents aliens in the fifty states included in the apportionment population counts yes all people are counted and what happens the sequence of events is that this gets raised second ross is aware of it there are  communications between secretary what ross the white house and in particular the president and then chief political strategists mr bannon connex secretary ross and kris kobach and then the kansas secretary of state later in the sequence mr coe back actually fall words an e mail to secretary ross that proposes a citizenship question includes proposed language and the transmittal email includes the discussion about the fact that the census is is counting non citizens and that that factors into a portion of your honor to your question but the apportionment problem arises  room for missing the question the question's been asked before number of doesn't it so so it used to be so from one thousand nine hundred fifty until two thousand it was on the the so called long form census which only one to a subset of the population and the allegations at least significant subset such that you could make projections but as your honor noted before the i think it was you i apologize the the scientists the experts at the census bureau the ones who actually evaluated this have said that adding the question back to the descent census the one that goes to every us citizen will materially harm the results that you get from the census this is a supplemental a is we have a number of different ways that we can go about resolving the d o j inquiry and what he says is the absolute worst way to do it to get the the the census block data that d j supposedly needs will the worst way to do it is by adding a citizenship question to the descent census and what the census bureau says is if you really want this information there are other ways we can do it we have administrative records that we can look at and we can pull that information and the amazing part here is that the staff at the census bureau they reach out to the department of justice and they say folks if you really want this information why don't we set up a meeting and we can talk about ways that the census bureau can get this for you and you know what happens john gura shuts down the meeting he says no we're not meeting and he plows ahead they plow ahead with making the request is d o j requests that we now know was the result of that was kept originally out of the administrative record that was heat in from the public hidden from congress until the supplemental memorandum was issued weeks after these initial lawsuits are finally filed i the supplemental in ministry of record so in other words after this litigation started the government was directed to submit the administrative record by judge firm and they did that i think they produced about thirteen hundred thirty pages or so and then after the drill at right and then at the july third hearing judge firm in order that the administrative record had to be supplemented he again issued very detailed findings  amazing absence of any documentation any information from before december two thousand and seventeen he noted the absence of documentation to support conversations data and other facts that are reference in the ross memorandum and the the administrative record subsequently was was supplemented by the defendants and the documents that we're talking about here i believe all calm principally from that supplement secretary ross's decision we know if you look in the in the in the supplemental of denim again and i think this is thirty one in may of twenty seventeen secretary ross is asking his subordinates he's asking i'm mystified why nothing has been done in response to my months old request that we include the citizenship question so in may of two thousand and seventeen secretary ross already has this idea that he once this is a cinch a question in the dissent senses that certainly doesn't sound at all like they're just toying around a couple of different ideas and they're going to wait and see what the the facts show and further compounding this if you look in the last page of the supplemental a danda this is from the deposition transcript of earl comstock he is the very senior who's part of that e mail traffic that i just mentioned on supplemental adenoma thirty one and what mr comstock testifies to in his deposition is that the way that he approached this task is that he got an instruction and then what he says is you go forward you find a legal rationale this is not the way the administrative process is supposed to work so the notion that the defendants put forward that as long as secretary ross believed what he was doing that that ends the a p a review that is simply number one wrong as a matter of law but moreover even if we accept what they are proposing even if we accept their test we meet that test here he didn't believe what he was saying the record shows that this was all made up well in advance and we submitted this point in time all  is the right to conduct that extra record discovery in order to determine whether we're right or not judge firman has has treated this case incredibly carefully he's been moving incrementally step by step making s to keep the plaintiffs within the bounds of what is permissible discovery he didn't open the door to standard rule twenty six discovery he limited the number of depositions he barred us from taking any third party discovery other than from the department of justice he has denied several of our motions to compel he has affirmed a number of the defendants in vocations of deliberative process and other privileges here so secretary judge firman has handled this case very carefully this is not a situation where you have a judge that is so out of control that you cannot wait for final judgment such that mandamus would be appropriate the petition should be not denied thank you your honors are the just a few quick points your honour's first judge leslie you had asked for citations the records showing the discussions between the department of commerce and justice you can see those beginning at the government respond appendix page eight eight eight  you first point there are are no misrepresentation misrepresentations and no concealment and to be clear the basis for these various serious allegations is the simple fact that in secretary ross's original decision memo he began his recitation of the events with the department of justice's formal request letter there is nothing improper nothing misleading about that this process unfolded in two stages there was an informal process of intra and inter agency deliberation and consultation that was followed by a formal process that was kicked off when d o j sent a formal request letter and secretary ross commissioner ross says he was doing this to help enforce the v r a and yet all the evidence supplied by the census bureau and other departments is that it would have the exact counter  effect that it wouldn't help and force meant that what it would do is depress response rate can you speak to that and he disagreed with that on the merits because he found a lack of empirical support i do think that is a merits issue and not a discovery issue there has been no finding made by those it goes to the bad faith that the district court never found that secretary ross did not actually believe that reinstating this question would help the department enforce the v r a never found that secretary ross acted on the basis of impermissible motive the the district court focused on the fact that secretary ross it's clear from the record wanted to add a citizenship question to the census even before he reached out to the department of justice but there is nothing improper or nefarious about that agency officials like the rest of us are human beings they come to their jobs with preexisting views and inclinations and dispositions they are not blank slates that is why they promise is the question is whether the can keep them well that is why your honors that the tenth circuit held in the jackers case that we've cited that it is not bad fa a favored result after finding a valid basis supporting it they have no answer to that case they say number one that it's not binding they don't explain why it's wrong they say number two well that doesn't deal with discovery it deals directly with what constitutes bad faith it was there was no valid basis to support this pre this view that the secretary held before he started getting information there was no valid basis to support his view that's just what you said what's the valid basis everyone said don't do it i did not say that he did not have a valid basis i said that he had a preexisting inclination to want to go in this direction for all we know that may have been just based on the fact that he thought having a sort of information would be useful for policymakers and social scientists but ultimately he decided the rationale on which he wanted to rest his decision was a enforcement rationale and there has been no showing here let alone a strong showing that that was insincere or not believed and that should be the end of the matter for the purposes of this inquiry into whether there has been a strong showing a bad faith an impermissible motive would you say the should the district court have because him and the legitimacy in the sense of the provability of the court did examine that your honor the district court said this was the fourth of the factors of the district court relied upon he said that to his knowledge the department of justice had never previously suggested that source of citizenship data finally your honour's on this the arguments that we heard from mr weener about the equal protection claim i think there are a couple of points to emphasize one the district court expressly declined to rely on the equal protection claim as a basis for extra record discovery here number two that claim is subject to the same a p a review all a p a record review rules as other a p a claims including other a p a claims where the decision makers intent is relevant such as prejudgment or personal bias the district court made no finding and none is remotely supportable on this record that secretary ross acted on the basis of any impermissible anim