ok mr smith represent good afternoon made please the court on behalf of the sierra club my name is joshua smith the lawsuit underlying this appeal is a reverse foyle lawsuit in which entergy seeks to set aside and enjoy under the administrative procedure act and e p a decision to release information to sierra club that it requested nearly four years ago almost a year and a half ago when sirup one e p a made the determination that sierra club was intitled to discrete subset of documents under the freedom of information act entergy brought this lawsuit seeking to to enjoin not only that discrete subset of documents but a much larger set of eighteen thousand documents for which e p a is still reviewing still withholding as c b i and for which no release determination has been made i have a question i'm a little confused about what is before the court and what that letter from pm to energy reflects still being reviewed and agreement with with the state i don't know whether you all have different positions on this and so i invite the other side to also clarify this for me but is there any requested information from you all you all made the request that is not  ard party confidential review be conducted by the e p a in other words this latter and then what is been told to the judge about the stay is their use you use the term discreet portion that that you are supposed to be made available to you is that discreet portion also subject to an inquiry as to whether those things whether whether arthur there might be subject of third party confidentiality no no law no they are not your honor so what's yours so and i'm going to ask opposing counsel the same thing i got the impression from them when they were talking about rightness and that kind of things for bearing on the issue that we have before us today that all everything is being reviewed for the third party and your position is e p a has said it's final we're not going to review the our decision on this and your position and it's not been subject to third party that's correct with respect to the three thousand six hundred eighty five documents so why so then your argument then with obviously follows as i have i cannot understand why if you're supposed to have this and it's not being subject to review why there is a stay for a file determination unless their lawsuit is is is both of the what is not subject to third party that that you are also requesting i think your honor the three thousand six hundred and eighty five documents are right and final for review right now and this really reflects the fundamental difference between sierra club and and e p a in this case not only is there is that's final and determinative you're entitled to get that exactly  there's not just a reverse screw diverse or a reverse lawsuit but you're also entitled to have an enforcement of what they finally determine that your entitle to i think that's exactly correct and what do you can't have it both ways and neither one of you can have it both ways neither one of you can say well it's final and it's all over and there's been a release of all information and at the same time say well it's not really final there's still an e a administrative procedure going on as to what's going to be released and what's not going to be released i think these are all important questions that go to the merits your honor but i think what's really important here is that e p a s interest energy's point is that those three thousand whatever it is six hundred is not written in stone that they're still contesting some of that and some of that is i mean that's just not beside it there is a final determination of release determination which is the subject which is the agency action under review if that's not final and right for review there's no action at all in this court to to to review and already the party that answers the question is not before us today e p a is not here release of those three thousand documents but the other eighteen thousand documents so not only has e p a precluded our ability to protect the prompt disclosure of the three thousand documents but it's effectively insulated itself from of course action intervention in texas the united states is directly applicable here and provides guidance and makes clear that where the government's interests diverge from the proposed move and intervene or in a way that concretely impacts the litigation and adversely affects their interests the government does not represent that party's interest and here e p a has a candidly admitted that its own interests in ministry of efficiency taking the review process taking its time to review the third party documents are higher priorities than sierra club's interests because the law they can't disclose confidential business information to third parties with notifying them that that's exactly correct but they have made a final determination which is the only determination that subject to review in the court below that there is no confidential business information in the three thousand documents that really are before the court and in a ceding to the injunction e p a has directly impacted sierra club's interests in a number of ways it's precluded as i said precluded the sierra club from asserting its own so action with respect to either the thirty thousand or the eighteen thousand documents and it's also implicitly conceded that the court has jurisdiction over all of the documents at issue interest in this case and it's legally protected interest under is the prompt disclosure of the documents that e p a determined are right for are ready to be disclosed they don't have any confidential business information in them and no of whether it be energy or any third party and so this case name a single argument that you would make the e p a would not make we we dispute the district court's jurisdiction to enjoin the eighteen thousand documents that it has enjoyed and that is a substantive content concession that a agreed that an injunction was necessary and appropriate that is contrary to sierra club's interests in those in the prompt disclosure of those documents and what do you say how can e p a do that without violating how can you ask for documents that are in violation of for you because they are confidential business information and the parties have not been notified and had a chance themselves to intervene there is really one you know how the court chooses to manage it docket i mean suppose it were one document would you be up here arguing about one document if they decided that only one document was was subject to disclosure it's not a dispute over the courts the court has first backing up just a moment the court has no jurist no discretion in the interest of its own efficiency to ignore jurisdictional defects in the in the in the case but before it and here we have a set of documents that are ripe for review we're not saying we're entitled to the now that's a merits question is whether they are an adequate representative of your interest your interest is to try to get those documents now they have supinely on their backs and i've not done anything about delivering those documents to you now and there's no reason for they're not doing it in your view and they say there is a reason and that creates an adverse interest and the opposite of yours and i don't see why there's any argument that they are an adequate representative of your interests when there are been there are effectively advocating an injunction and you're fighting me and i'd rather i don't see  how you there are an adequate representative of your interest when over there job is to try to be to work the thing out with energy and your job is to try to get as many documents as you possibly can so i don't see how they can possibly say that your applies in these cases a presumption that the government adequately represents a proposed intervener and in this case the district court and entergy in our view take the only question before us is the motion t no issues related to that is why my question is what does that order mean and what is the original appeal about i don't think if everything is subject to a review including has been finally determined and there's been an order of release at hand and it has it looks like it has then you obviously have a different interest than than e p a when  a agrees for what it's what you're entitled to have right now they agree well we're not going to turn it over to you and they're saying it's a final decision and not going to review it so it's either a mixed bag raises your honor because they're trying to have it both ways because obviously they thought it was final enough to file all along that's just got a question i was just going to say you can't be in the position of saying there no order because when there is no case and you don't have any case to be able to intervene on the other hand they can't take the position that it's all being reviewed and this is same time say that there's a final order if it's all being reviewed there hasn't been a final order so so you don't want there you you have to insist that there's a final order and they don't want you to have what you're entitle to have right now so they're saying there is a final order but it's still all being reviewed and it's not right ok let him make you feel ok great i think this is an important point your honor because if the case is dismissed in its entirety or in the judge injunction is or is lifted sierra club has its own affirmative foyer a claim that it can make against e p a and right now under supreme court precedent we cannot assert our own claim because the supreme court has held that the withholding of docket public records pursu a court ordered injunction is not improper within the meaning of the of the law here one minute to sum up what your position is one to three from without interruption in light of the e p a s explicit admission that its own institutional interests diverge with and are bigger concerns than sierra club's interest in the prompt and timely disclosure of the only documents that are ripe for review the agency cannot me please the court like to go directly to judge benevides question about which universe of documents is being reviewed because i do i think that's important it's probably not dispositive in our view we still think this is a docket control issue but let me go directly to that question if you look at the e p a s final determination on the foyer request of the sierra club it's a page for a one in the record they say there's twenty one thousand six hundred eighty five pages and they say that enter asserted a c b i defense as to all of those pages and then here's what the final determination says it says up and i'm quoting from page four zero one of the record upon review of a sample of the relevant documents a significant portion of the information contains third party confidential business information so at the time e p a made their final determination they just looked at a sample now th confidential business information that's a final determination the e p a standing by those pages in the p s u do not contain any of our information now where they're getting this number of the three thousand six hundred  eighty five that they claim is a final discrete subset that number is also in the final determination but it's derived from a sample they're extracting they're extrapolating from their sample that there would be about thirty six hundred eighty five documents that only have entered g s c b i and there would be some eighteen thousand documents that would have entergy c b i and some third party c b i and the final determination says there will need to be a review of all the documents and that's what's ongoing right now and i want to walk the court through some of the record because as judge penetrators mentioned the e p a is not here but the e p a said before the district court exactly what it was reviewing and it's that page eight sixty nine to eight seventy three in the record the e p a s lawyer showed up at the in the motion to intervene hearing in the district court and the district court ask some of the same questions this court is asking a has lawyer said quote what we have to do is still go through those twenty two thousand documents so they have to go through the whole universe of documents there has not been a review of those documents to determine which pages contain third party c b i now e p a is under a legal obligation under its regulations to review every single page of those documents before it releases any pages because it cannot release a page i mean every the there's twenty one thousand pages that contain entergy c b i there's a subset we don't know the amount because it hasn't been fully reviewed yet at least at the time of the intervention it has it they're using their pinning the number thirty six eighty five on it that they that is some subset is entergy only c b i it doesn't have any third party c b i now why i say they're just putting a number on it if you continue to look at the transcript before the district court the lawyer also makes clear that now they are going through that whole universe of twenty one thousand documents and now they have gotten it down to twenty one hundred eighty five pages as entergy only c b i so this is not some number that's set in stone in other words they're going through each page if they see that there's not a third party c b i audit tell me why did they separate themselves by the number of twenty one thousand and thirty six hundred how does that review of all of those pages to determine whether third parties have some confidential business information and i thought that was with respect to the twenty one thousand they made that yes and the such the thirty six hundred number that the sierra club is using is a subset included within the twenty one thousand university is right or why did they separated again what what make tell me what makes sense that they would separate the thirty six hundred from twenty one past sure because once they determine the actual number of doc of pages that only have entered the c b i then those can be adjudicated and released but first they have to go through the full universe of the twenty one thousand to determine that exact number i know as i did now this is confusing but it's because  they're they've created artificial certainty about this thirty six hundred number and in fact now that the e p a has gone through and reviewed it's down to twenty one hundred that that eventually will be able to be adjudicated one hundred out of the thirty six a says it's reviewing all twenty two thousand documents to determine which ones have third party c b i once it determines the universe of documents that only have entergy c b i and maybe twenty one hundred maybe thirty six hundred maybe somewhere in between then they then a district court can adjudicate entergy is claim as to whether that actually is c b i or not but it has to complete the review by law to make sure that it doesn't release any documents that have third party i on them i mean i'm just trying to understand the facts here now energies position is that all of these are energy energy  with that claim are they still and that they're only looking at two third party whether it might be somebody else's third party and waivers and things like that and that that's what they're doing i just want to find is that what they're only and that's what i'm asking them is not the only thing that they're doing now yes that's exactly what they're doing is they're going through all the twenty one thousand pages that we can claim contain our i and they're noticing that a lot of third parties also have claims on those pages so before the court can identify before e p a can identify what is the discrete subset that only has entergy c b i it has to do that full review now i understand there's some confusion about how is that a final order and maybe are there jurisdictional questions and i think it's very clear that it is a final order because it's a final legal determination that none of those twenty one thousand plus pages have entergy c b i it now there is going to be a delay between that order and the actual production of the documents but that's that's hardly unusual for an agency action to have some time to take effect me happens all the time and pre enforcement challenge is to rules and constitutional when it is still subject to review as to what i think will be released because there's a difference between a final order on the legal question of whether entergy has protected will c b i and whether it can be released because of third party issues there that are independent of entergy yes but the question is can it be released or can it not be released and that's and you're saying that even though they say it can be released with respect entity there are other matters that would prevent its being released so it can't be released even though it's releasable is that what you're saying it cannot be released until the third party please refrain russian because there's a third party interest involved so the third party is not a party to the foyer request they're not a party to this litigation there's one hundred fifty some third part very possible they haven't done that yet but there's there's a final decision between the only two parties in the case entergy an e p a does entergy have a valid c b i claim or not now i understand why it seems non final in some sense it's certainly finalized between the parties and between the legal issue in this case the fact that there are some other third party interests that have to be protected by law doesn't make the decision non final and that's where the the c r e w case comes in that i talked about which so i could just mention talks about specifically in the foyer context there is oftentimes going to be a difference between a decision to release the document and the ability to actually release that document and it doesn't make the decision to release any less of a final order so i think that's an important distinction to you know decision to release there has been an adverse seemingly there has been an adverse decision as to your confidentiality claim but there has not been a decision to release any of it so my question is what makes the order final an order to release on or an order that partially determines one person's me yes and with respect to the only legal substantive question before the district court which is whether entergy has c b i in those documents sierra club and e p a are on precisely the same page sierra club has not identified a single argument they would make that is any different with respect to whether these documents are entergy c b i have a different interest sure i have a different answers your honor there's there's different ways of looking at that question i think this court looks at it in two steps whether the intervenor has the same ultimate objective and if they do then a presumption arises that there's adequate representation certainly they have the same ultimate objective they want to get out of that  mean you can tell me if i'm wrong but i mean that position is to give as many papers as they possibly can and that is not necessarily the e p a and they have injected this business of the state in which they take opposite positions with a on that and it sounds like to me an adequate representation of their interests and why set up the first of all with respect to the full universe of twenty two thousand documents they are on exactly the same page e p a says they have to be released if they're sierra club agrees now yes they have disagreements over the tactics over how the district court controls its docket over whether some subset gets litigated first before a different subset but this court has said many times and we collect the cases on pages twenty nine to thirty of our brief that mere differences over tactics are strategy or procedure case they have no more right than e p a to to publicize or to get release of documents that are subject to third party c b i right yes thank you very much judge jones that's exactly right and so i think judge sol you're saying they have an interest in getting as many documents as they can as fast as they can but when the you energy disagrees then you send those documents to the court and the court makes an in camera examination right so that's the part that is not hasn't been done here and when the court gets to that when after each e p a focuses the issues on the documents go to the court who will probably ask for an extra law clerk and the court will have to go through them and decide who has th and then so if some point there they would be that the sierra club well right to intervene will arise so we're just doing this all over again i mean no i didn't have the right to  intervene and they may never have the right to intervene or it may wipe until the right to intervene or to position and i don't see any reason they would ever have a right to intervene so long as they agree that the twenty two thousand documents don't have entergy c b i and that now you're talking about a dispute over the disagree well you're just going to disagree with we disagree with that but but e p a and the sierra club are on exactly the same page with respect to that question now you're i think you may be suggesting  sometime in the future that they could have a dispute over whether some third party has a valid claim or not now is the third party intervened in the case and then sierra club took a different position than the e p a asked a third party yeah that's possible you could have an intervention but so far none p a shaz let's say you get a waiver from a third party or the e p a it's it's not a third party confidential thing you're still going to make the claim aren't you that all of them are your confidential thing so yes it doesn't make it so i don't know where the third party rights have any bearing on this this this question that we have before because your position has been and will always be that regardless of what their determinations are about a third party there are determinations about it not being your confidential material in wrong and you're saying that that original order  enough where they say that you're wrong so that you that made it right in just issue for you to file your lawsuit yes that's correct and that's all that the court should be focused on is whether there's a disagreement between the whether they're good or whether they're not good you're still not given up your position monitors everything in limbo for four years or three years or however much longer it takes when they've made a determination that they're entitled to some things that they haven't and that and and and they're rejected your claim but they're not releasing anything for a different reason they don't have anything to do with you to want to you first of all it's only fifteen months since this lawsuit was filed the rest of it is has to do with machinations and pretty litigation foyle between sierra club doesn't have anything to do with this but you're talking about is there some subset of documents that can be adjudicated and released now and that's the point i was trying to make at the very be all of them can they question is directly within the district courts discretion to control the docket that's the exact argument that the sierra club presented in you'll recall procedurally that the sierra club one intervention before the magistrate judge so they weren't intervene or in this case for a period of months they made that exact same argument just go ahead and make the legal determination as to entergy and the district court said it doesn't make sense to do that sort of a piecemeal approach where i'm adjudicating documents that i might not otherwise have to now they've already made this argument as an intervenor but yet they're coming before this court today saying that we need to intervene why do they need to intervene i think the court has to ask so they can go back and make the exact same argument again that the district court rejected  docket control discretion they haven't identified any other substantive argument except have district courtship control its docket and time again right miller the case is a page twenty nine to thirty of them are brief so that differences over tactics g strategy and timing are not the sort of substantive differences that lead to an adequate representation thank you ron are there just a couple points i'd like to make in response this court has held that under under the district court has no jurisdiction to enjoin documents that have not been ordered released i want to that is binding black letter law the court has no jurisdiction over that the eighteen thousand documents that the the e p a hasn't ordered released and i want to draw your attention to the record on appeal at page four hundred one because that's the final determination in which he said it will release approximately thirty three thousand five hundred documents and a second determination that added another one hundred eighty five documents to that release determination those are the only issues properly before the court where you get the number twenty one hundred eighty that number came from a an e p a the e p a analyst who not potential there is there is some set of documents that is final otherwise the court has no jurisdiction to enjoin all of the documents that it did what would we would this is a f order barring release any of the of any of the documents at issue so it is a formal injunction it's an order precluding the release of the documents we disagree that the court had has jurisdiction over the case were to be remanded what argument would you be making at it if it is correct that there are third party interests at stake that that review process is ongoing and that by law you don't have a right to see those until third parties consent what argument are you going to make to the district court that you have not already made your honor in the court below we we inform the district court that we are prepared offer expert testimony going to whether the part whether the documents in question are actually competitive business information we would also offered evidence regarding the public interest in those documents but your honor you do that and suppose the judge decides those questions and then she's look she has to go over the twenty one thousand documents ones because that's what the range of the dispute is between you and energies twenty one thousand not three thousand so she's got to go over all twenty one thousand of them and then e p a says but wait a minute we don't want to be held in contempt by third parties for violating the law you've got to go through these again and find the c b i for the third party and that is that it illustrates exactly why interests institutional interests it's not institutional it's the law because you don't have a protectable interests in receiving those documents we have a protectable interest in the thirty five hundred documents the thirty five page for two of the record on appeal your honor is a determination that's giving giving sierra club a legal right under foyer to the release of the three thousand five hundred documents at issue that is our legal right that we seek to thousand those documents are irrelevant that's a red they're relevant because they're not challenged in this case by entergy and i think i'd like to make one final question one final point here that i think illustrated quite nicely by entergy is that there is a fundamental disagreement as to what the scope of of the agency decision is under under review we are seeking to intervene to protect our right to prompt and timely disclosure of the documents that have been ordered released and e p a has made clear that it has no interest in pursuing that that interest under this court's binding precedent and glickman we are entitled to entitled to intervene that's all i have your honor ok thank you our next case of the day and that's bill is shannon versus