not in this case petition or see a writ of mandamus to compel the department of transportation to initiate a complete the rule making your seat belt warning system as required by congress in june of two thousand and twelve the statute that was inactive by congress in two thousand and twelve states that the agency shall end this year at this rulemaking proceeding no later than two years i mean so i will tell you that's the proposal for a study which is what the government is relying on certainly is not the initiation of rule making and that federal register notice that they rely on for the proposed study doesn't comport with any of the requirements of and he she had a role making as defined by the administrative procedure act and in fact we don't even know if that study was ever initiated or even approved by in the year with the sadness of it is that in any event proposing a study certainly falls out of the category of what constitutes initiating lawmaking do you really mean that or you i mean i would have thought had they done a study t i suppose there might be a circumstance where the notice is proposed rulemaking could say here's the proposed rule as part of it's part of the will make a record we're going to do a study in that in that in that situation that might that might satisfy the requirement but our position is that congress demanded that they initiate woman making on a two to promulgate a standard for the rear seat belt remind with no later than two years after not going to the statute which they haven't done those two years are long gone and to complete the rule making within three years no later than three years after the stack she was inactive unless they gave certain records to congress which didn't happen so that hasn't been done filed a petition for rule making with the agency or initiated any procedure for the agency my clients didn't your honor but but but several other organizations did file a petition who before the statute was passed yes yes and no neither you none of the petitioners here has done anything to initiate it and there's no pending proceeding in any way shape or form that's correct nancy that's correct so how do we have what you're stiction are we protecting there's no case that exists yet for us to protect there's no agency proceeding there's nothing going on now that exactly and that's why we see years after an act of the statute and to complete that will making no later than three years after an argument of the statute and neither one has occurred and therefore particularly because all of the track factors which are used to to decide whether or not the agency has a committed on reasonable delay within the meaning of the administrators procedure act apply they were to decide i don't they didn't here if they were to decide that we can do this you know the language in congress is not consistent with the standards of the motor vehicle safety act and they were december letter to congress saying that would that be a reviewable finally agency action terminations they can't do it and they would send the letters to co think it would be your honor because they have to the statue requires him to initiate a close role the escape valve for not actually issuing a standard because it doesn't comply take into account the factors that apply to all motor vehicle safety standards applies to a final and therefore we will howl and we will have a proposed rule we will have some kind of a placard the agency will then make that decision and i think if the agency reconcile that with public citizen which that decision to decline a petition for well making would be reviewable and just i think it's because final standards that are if safety standards what was going on public citizen options for the secretary here were to take a measure that would only be reviewable in district court not here how would we then be in our version because there's just as much chance that there's nothing that would ever come here well you rule or decides not to make a rule it's coming here and so we have mandamus jurisdiction and track but this is different this is an odd statute where if they do one thing issue a safety standard that comes up to us anything else they do seem sarah seems to go to district court and so i haven't seen a case that has a sort of split jurisdiction where we've concluded that we can we have  authority to issue or to rid of mandamus and eight of our potentially partial jury well i haven't either your honor but i but i sort of there seems to me there should be no question that you have jurisdiction an absolute minimum to to compel the agency day we have to address whether what we're doing is an aid about ultimate jurisdiction and i guess it is a little bit so interesting that it's an eight of jurisdiction that we might have it's also it would have to be it's  jurisdiction that we might not have depending on which tribe the it is the ultimate the tribe or course our position is there has to be a rule and there will be a role and it's all making and the rule making record that will be developed after the agency issues the proposed role fusion something about the so the dynamic between the final rule and the initiation of rule making so the statute definitely says that there are circumstances in which the agency doesn't have to issue a final rule does not have to issue a final rule the statute of its own force says a final need not be issued why doesn't that track back to the initiation of rule making also because it seems a little bit odd to say you have to initiate  making even if you're never going to issue a final rule well the circumstances under which they don't have to ever issue a final rule is only if it doesn't meet the requirements that apply to all motor vehicle safety standards under the motor vehicle safety act and that would though those standards are whether or not it's reasonable practicable things like that our position is we're going to have no trouble demonstrating those in the room making records the roll making record will show once we get on with the only thing that's been required and it's way overdue that this rule is is is practical it's reasonable it's already in place in european cars and australian cars we're not going to have trouble we don't believe showing that a final rule is consistent with these considerations that have been taken into account and therefore there's not going to be any problem with  this court having jurisdiction to review if someone wants to challenge that final standard that but that there would be a final standard to be shown to the agency concludes that those considerations mean that they're not going to adopt  ok so your position is that at least that process the statute requires a process began even if the agency i'm just hypothesizing you to the agency by hypothesis thinks it's very very likely that no fin that these considerations are not going to be met right i mean that's always going to be true in a situation where an agency is required to conduct a rule making proceeding that at the end of the process they may decide there shouldn't be a role and i don't think that necessarily dictates whether or not this court has jurisdiction over a petition for mandamus when it's clear and track makes clear that if a if a final rule issued by that agency would be reviewed by this court then this court is the proper court to decide a petition for mandamus and that's where we are that's that's exactly where we are now in fact we actually  them either fish or cut bait is that right either you can do the role or to say you can't the processes of the statute prescribes that you're supposed have done something and these intervene we certainly get we certainly are our position runners we're certainly entitled to at an absolute minimum mandamus to get a proposed role and that's going to start the process and once we've got the process started we believe everything's going to fall into place and there will be a final role because these that that agency shall not later than two years after the date of the next one of the act shall and the shooter rule making proceeding to amend the standard you know and then the standard with the study young men the standard with a pro statute requires them to initiate the world making and then require them to do that many years ago and they haven't done it and therefore they should be compelled to do so particularly when the health and safety of the public and particularly children who are the ones who sit in the back seats of these cars and need to be protected their lives are at risk i take it that you really the report provision is only applying to fi report before it does correct yes these are separated out in two separate sections one is called initiation of room if you proceeding and that's where this you initiate the rule making can be found and then there's a second so part b which that they can if they determine at that point in time that it doesn't meet the requirements of the motor vehicle safety as i say can send that report to congress none of which has happened by the way with rights type rights i don't i don't disagree with you that that's really the statute reads i mean already sent out that the agency could sum it a report to congress in connection with the final roll that explains the reasons that a final rule is not going to be issued because the statutory standards especially predicates for for regulating in get public comment and inform the agency about about what kind of a standard there should be and how it comports with these requirements of that apply are generally  motor vehicle standards so you can't prejudge that before you have a rule making record and therefore it makes perfect sense the way it was written that went after you've completed the war making if in fact the agency does not believe that it the requirements of of the motor vehicle safety act it should submit a report to congress and maybe the reason for that is so the congress can take whatever for the record it needs to make sure this standard goes into place having decided that it is an important standard that is needed to save the lives of many people and in particular children my time is running out of one more impact on the  doesn't tell us what the timeline is and all that is there's nothing that says after all mike has been initiated that they can delay the final it just says sta that is one we think because those all the deadlines have already passed they don't get to use this provision at all but my second answer is if they are allowed to use this provision for it to get an extension on the issuance of the final  well i guess i'm out i mean we have many cases where the seas pastor guidelines yes right when that happens sometimes we were them to do something but it's later but you're telling me we actually don't even have the authority to order them to do something later because the deadline has already passed that's the end of it if we have you on your time we have your door to do that why doesn't congress have the authority to let them extend but that he does have that them that option and it laid out how it should happen and we believe when it should happen and it didn't happen now is it possible i understand where you're saying that you can read this as you have no temporal limitation i get that date you know we can see when that what that new date is that does not get them out of their obligation to initiate rule making and if if the new date is something that they and they were supposed to be for violation of a clear duty yes of the statute is ambiguous about whether the data like can be extended by a secretary we have authority of course we're talking about a hypothetical that hasn't occurred because they haven't done th how behalf of the department of justice at this point we think that this case is about the department of transportation's compliance with a reporting requirement to congress the statute is essentially set up it it doesn't talk about the reporting requirement these are viewed initiation of rulemaking right it's that the way the statute three one five zero three is structured that provision about initiation of rome if you proceed is doesn't say anything about a report to congress and then there's  rulemaking i think so you're right i think in context for you sort of look at the way the statute is set up i mean the end result of this process and some of the question to earlier i think suggest is the end result is either going to be a rule or a report to congress explaining that they don't think that the proceed and then it would be more difficult to come up and say the statute and the way this is supposed to get worked out is between hunger sent the agency to the entire exclusion of judicial involvement i think that would be more difficult initiation of meeting proceeding if i'm just looking at that provision separately you've got your argument that as his study it is an issue in a moment what else you have on down her i don't think that the argument is that a specific study is the thing that element that the argument is that what congress was telling the agency to do was get started on looking into this agency undertook sort of a number of regulatory steps to get started i'm going to direct the court not only to the fact that in other provisions  the statute congress uses much clearer language when it wants the agency to do a specific thing i don't sit around i just trying to ok says all of that it sounds like all of what you're coming for with has to do with satisfying the requirement to initiate will making proceedings it's all an argument that the steps that he didn't see it has taken in fact constitute initiation over making proceedings i just want to make sure i'm understanding you have a little framework of your argument so that's that's where your argument is that sure that's not argument i mean that the stepping back more broadly we also don't think that there is any indication that congress intended this sort of a requirement to be something that gave you no private private citizens the ability to come into court and enforce these particular deadlines so we don't sort of you know even setting aside the definition of the phrase initiate a roommate and we don't think that this happened three speed sets out the kinds of clear essential differences are lots of other statutory  the standard has been met but i'm just asked but in the lead in the nature of the mandatory directive language and deadlines there's nothing about that that's different than any case or a lot of cases where congress knows mandamus is bailable when it's test standards have it was and when you say that's one which that all you're talking about because thirty one final five speaks in terms of quote deadline for issuing a final rule and there is a deadline for issuing the final roll but it doesn't appear to be the same as the deadline f context you know it wouldn't make much sense to have a scheme where this sort of intermediate step of the process wasn't forcible when the agency actually has the express authority to establish the deadline for the ultimate action that we're talking about and that ultimate action is very likely to read or it could certainly possibly be a report back to congress and not even a rule i mean it seems to me that in your brief you said some deadlines that were information is that that's still the anticipated at a time when i want to be clear that that's not a an absolute guarantee them but our current information that they are has because you all have done this before with week and under months ago in april i have continued to maintain the same anticipate ed and timelines that were set out in that october report so the you know and that's where we are right now again that's not a guarantee but that is the be making the argument that because the statute provides for extending the deadline for a final roll by issuance of a letter or slash report there's that necessarily trust back and also informs initiation of rulemaking in the same reporting obligation can result in the next reporting option can result in an extension of the machine rule making deadline to get in that i missed that i'm not sure we expressly framed the argument in those terms i do think it makes sense to sort areas talks about they had this proposal to do the study but never says it was actually executed i don't believe it's been finalized but i'm not i don't think there's a public report from it but the agency has been sort of taking steps on this in this area but is your position i think is that the study what you've done what the agency had done in connection with the study is the initiation of remaking proceeds right if that is one of our position and i would also say that is true there is something i knew before the agency well there's not a there's not something over which we think that this court would necessarily have jurisdiction for instance if the agency declines to issue a role here i went back to notify congress about that i certainly don't think there's any clear indication that there would be jurisdiction to review that notification back to congress i'm not aware of and i guess my question is if there's if there's a requirement that the predicate for our jurisdiction is that there has to be something active before the agency to sort of train and one way to do that obviously would be a petition for only that were issued a process but your position is that there's been an issue  i mean there's been a there is a proceeding and i'm not sure if how exactly that would square with kind of the protective jurisdiction down the road given that the outcome of that could very well be just to report back to congress that wasn't all that proceeding and shaded by these parties that  usually normal for congress to give this kind of an insult me this morning it's quite normal for congress to work or reports on how agencies are going forward with their case it's not this is this is not particularly unusual it's its  placement in the middle the statute years but it's not unusual for congress to want to know what happened to that will make sure i mean when we read the statute it suggests pretty strongly that congress rule after there's been a notice a proposed rule making we do those under the a p a the fact the congress said we also we want to know what you did what you did and why you did doesn't necessarily mean that it cuts off the normal but i think that the basic principle that this is a statute that sets up a sort of back and forth to congress with respect to both the final outcome and the timing suggests that this is an area where congress is going back and forth with the agency about both the tim substance and you know again congress has exercise oversight about the many requirements throughout the map twenty one act and that leader fast tracked you know it's come up at hearings it's come up about oversight hearings we don't think that the statu suggests an intent to first sort of individual plaintiffs to be able to come in and sort of have the one of the many requirements that their priority in front of all of the many other requirements that were imposed in this same seri about the might be wrong i'm not saying that any was bound to that but yeah again i don't think i would just not read too much into sort of the statutory interpretation based on the way that the agency filled out that particular document agency is understanding of its priorities and how quickly it was likely to be able to move on this changed and i think you know in two thousand and fifteen the statute to build this regulation was for the first time they recognize that it would be economically significant that something that would require sort of extra levels of review and make a more complicated at the agency has sort of periodically pushed back its anticipated timeline i'm not sure that there's been any kind of a sort of internal it interpretation that that these documents are supposed to be getting to about the initiator roomy but we certainly don't think that that initiate a room anything language was intended whatsoever to create a sort of judicially enforceable deadline for this intermediate step in a that it can't do overall making and where to send the statutory required letters numbers so it would just make it just a final decision that we're not going to do it will make you know some of the letters to congress where with that final decision could that final decision be challenged and in which court transportation says looks at this studies and says no hands do we can't do this type of regulation given the motor vehicle safety act requirements standards i'm going to comply with my obligation under the statutes and my letters to congress explaining to them why federal laws now doesn't allow us to do it so we put the ball back in their court we do not think that anybody would have the ability to petition for if you have not a session we think about would be a notification to pursuant to a statute and there's no basis for thinking that anybody intended for a you know a private group to be able to come in and get review of that decision it would rather be back in the hands of congress to decide whether it god had a further rule was it was necessary  harsh to file a lawsuit challenging that final agency determination not to engage in all making we think that the agencies are sorry like kids in hers or private citizens recourse would be to go to congress in that circumstance what we have here or both with respect to the timing and the substance between congress and the agency and we think that congress is amply able to enforce any dissatisfaction it may have with the agencies compliance with the reporting requirements to congress we think of as it is  i guess i'd have to think about the a little bit more i certainly think it's much easier case here where the final decision the final thing that would come out of that initiation is a report to congress or of the lack of hands on and reading of the statute that's the only thing that's required statute i don't think we're saying that it depends i mean i think what our argument here is that this entire statutory scheme suggests you know just taking a step back here we're talking about a statute that imposed dozens of  statutes imposed dawson said usually we don't say this is just a matter between or some agency because by the way determines that a second later congress can overturn what it earlier congress wanted done so if the first congress wants this kind of regulation and the second congress people because of changes in the majority or whatever size it doesn't your reading would mean that the second congress can be shaped the results a first congress which we normally say can't be done without a new statute but you're saying that everything is up to whatever the congress at the time should do decides to do with respect to enfor i don't think our argument is about sort of congressional in force and it is about the agent it is sort of congressional and for some of the timelines here and ultimately notification of congress in the statute does also you know we don't dispute of course that the statute does tell the agency and so you know i don't think this runs into precisely that type of problem because the agency you know if it meets all of the requirements of a safety standard will i have the time to determine by the secretary if she will rule that we would be able to know  that the next step the july deadline when it goes phelim be will be public i am not completely sure whether the first talks about those obligations compelled by this statute and gives dates for when the notice of proposed rule making was going to be published and when the final world was going to be published the idea that proposing a study would somehow satisfy those requirements simply just doesn't fly and with respect to this study that has been proposed i've been on the link that was provided by the government nothing's happened at all since as far as i could tell since two thousand and thirteen they sent the study the request over to o m b the proposal for the study doesn't even cite this the statute we're talking about it does not cite the rule we're talking it talks about just doing a study and as far as i can tell no study was ever done no study was approved there were a couple of comments in response to that federal register notice and that's the end of it number three  letters to congress those letters to congress that the agency is relying on like the proposed study it's relying on they don't address the statute we're talking about at all they were sent pursuant to a different statute they do not discuss this standard at all and therefore they have they did they do not satisfy any of the requirements of the statute and the last thing i want to end with is under the track factors what's particularly egregious in this situation we have all of the fact  factors in our favor the only thing the government ever came up with and it's pretty was it has competing priorities at the same time this is agencies since last october has been asking the public through a formal federal register notice to cleese sandy and the list of safety standards you would like us to rescind that's what they're spending their time and resources on at eighty two federal register four five seven five zero zero the october second two that calculation citation for you right here your honor i'm a look and try to give it to you but what is your take but with respect to what the government has said we're still talking about hundreds of lives that would have been saved had they met the deadline that was imposed on them hundreds and this this this number second point doesn't even talk about injuries at all and we're also talking about serious injuries every single year they're suffered by people who sit in the back seat and aren't wearing the seat belts and the third thing i'll say about this provision that you're looking at is there's a note here that says these are preliminary estimates they have not been reviewed and they could change so it maybe could very well be higher again it doesn't talk about injuries at all so it's pretty clear that congress believed that there was a problem here that needed to be resolved that people were dying in the back seat because that in their seat belts are principally children