yes since you ran a race you know our position i'm sure you have questions based on what i've seen today but i would like you to sort of perhaps do the following a little bit of a different approach from what's in our brakes well in this case there because i can't figure out what you're appealing from preparing from the final order of the two issued by the judge and in this case which direction his can come to comply with the prior orders of the judge judgements have to be self contained yes i have to have their own terms in them and a document stating you must comply with my opinion is not a judgement i agree i mean so you're correct and absolutely  well the you agree but it's beyond dispute did anybody notify the magistrate judge in this case that nothing remotely looking like a proper judgment had been entered no i think your honor it's more than that as you say this is probably designed to be an injunction if you look at federal rule of civil procedure sixty five d d it says that every injunction must stated terms specifically and describe in reasonable detail and not by referring to the complaint or other document the actor acts restrained or required so i've looked at this document i can't figure out what acts are restrained required refers to another document it violates the first precept of injunctions and we now have a jurisdictional problem because we've said that you can't appeal from a document that is unenforceable this document couldn't be enforced by a motion for contempt it doesn't do anything it's utterly ineffectual and therefore how is it appeal this is this is the situation and i see it it's clear that that that throughout the course of these proceedings the judge was issuing a bunch of orders for example he knows you do you're the judges issued a bunch of orders and he's not clear that the magistrate judge has issued even want to order that he's capable of being enforced oh that's not true you can't enforce the order and the language i've quoted from roll sixty five makes clear that there is nothing in this order that's in forcible what do you peeling from and i suppose you don't you're not to put it otherwise mr katzenbach your client is not under any legal obligation at all as a result of this order and therefore what's to appeal from appeal and we would merrily reverse because there is no enforceable judgment in this case now it may be that what you want to do or perhaps maybe what mr wakes wants to do with mr w compelled this this document is not an injunction it doesn't appear to be a judgment it's because the district court clerk hasn't entered the proper documents going to tell the judge and ask for a proper judgment rather than waiting for the judge or the court of appeals to point this out to you six months right start on rule fifty eight federal superior applies given the pristine procedural posture of this case before mail for fifty will be entered contemporaneously with this order i don't know what you do in the face of the judge just telling you go on obviously if that's the panel feels that that's they do propre approach that's the way we would approach i mean obviously we can't i'll be asleep don't have any any problem with doing that and coming back up here again that's the way it's going to be well you getting was the problem here is i see it apart from the problem the court identified was that in throughout this case this a w a had been attempting to assert the rights of other parties earlier today the court noted the lexus the lexus case in the supreme court about constitutional standing the three and the three standards on that and the problem that this case exemplifies a little bit of the problem namely a w e doesn't have a contract he's asserting the rights of of these funding agencies it has suffered no injury in fact because it's not putting up many of its own money is not regrettable because any claim that we would have against any claim for breach of these other contracts would be a w we couldn't result in a case where a w is the only party so that in terms of looking at this case use real words that would help us find somebody alliance for water efficiency lines i'm sorry real words were general s clients would be a lot that there aren't present even testifies to themselves so one of the problems and impacts on the entire case is that the court the lower court had didn't have jurisdiction because of the problems associated with the fact that there that alliance is trying to assert rights under contracts to which the other parties have the right to decide if the work was done right or not and the other problem with the judge's approach on the settlement is the judge assumes and says this case needs to settle with my client removing things from his report because these other parties are in set it would be are almost beyond satisfied where there's no evidence of such i'm satisfied action it creates a huge problem where there's no evidence of the predicate for the judge's position and it seems to me that the case can't go forward on the theory that he's his position has any support it seems to me that then we're in the situation where on a bigger and broader level you're saying wouldn't go into a settlement conference if they thought that a judge after telling you on one day that if you don't agree to a certain a written document what we say on the record is the limit of what the agreement is to then find themselves embroiled in litigation or things are being added to th agreement again and again and again who did go to a settlement conference under those circumstances and that really in our opinion undermines the whole process of settlement in this court or and run the lower court so you know our so to to put it in the simplest terms this is a case where it starts out where there is really no dirt no subject matter jurisdiction whatsoever just second place where we are in a position where the where we are being told that we have what we can include and not include in a report which violates i think my client's first amendment rights in a simple and straightforward way particularly after the most recent case in the supreme court on the reverse of town gilbert and so i think there are when you can't down to it that's the problem with this that is perhaps not the problem you identified but the problem with this whole situation so the court has no further questions rosa data that was ordered to be turned over by a magistrate judge kohl as of june tenth when he specifically entered an order that said they're required to turn that that data ota over and then in october he issued a memorandum an opinion order that specifically set forth his findings in his rulings with respect to the parameters of the settlement agreement and that that those two orders set forth exactly what the v if you know the injunction quote is this mystery order saying comply with my opinions right and you agree i assume that that's utterly ineffectual but i would agree that what judge cole was doing was saying that he didn't need to enter that order in the first place pursuant to rule fifty eight and that he well he really is or he was wrong about that and he was wrong about its contents and i can't see anything that there's nothing that remotely satisfies will sixty five  satisfies our repeated conclusion the judgments have to be self contained what why didn't you tell all the magistrate judge that he might have to take a look at rule sixty five  one and you what it says your honor obviously i did not to appreciate and think that that was an issue and a real sixty five position like i said was that the january seventh two thousand and fifteen order wasn't even necessary because there are already been a proper judgement ruling in and the october twenty second two thousand and fourteen order and in the june tenth two thousand and fourteen order but i understand your honour's position on that efficiency so you would agree that he removed all the references to write the alliance well in the draft report that started this off he did not but he's claiming that he will yes but that but in the agreement it doesn't say he had to remove quote all references to other funding sources those words are not there so what the rest of the agreement was on the record on march thirteenth two thousand and fourteen was that mr fryer would not solicit seek any input or contact any of the project advisory committee members which we've been calling the pac members who of the alliance was doing its report for he was only and same with the alliance the alliance wasn't going to contact the w r which is the department for water resources who mr fryer was doing his report for and the implicit and the only way that you can interpret that is that mr fryer was a green that he wasn't then going to in his report put on his acknowledgment page that he was doing a report on behalf of all of the pack members when he's already agreed that he would not solicit any input from the news day in just putting it in context he agreed but those words and i quote were not in agreement well if the words are quoted absolutely but i think you've got to look at the end tire transcript from march thirteenth two thousand and fourteen and that's been the stir fries position which i disagree with is he he looks at those four words or five words whatever that sentence and says that's the extent of the agreement when if you go beyond that for that day was over and we put everything on the record there is a clear discussion and agreement that mr fryer is not going to solicit this kind of input from these people and by then he's sort of going around the entire intent of the settlement agreement by coming back and then saying well i know i agreed that i wouldn't solicit them and i wouldn't work with them and i wouldn't get any input from them but i'm now entitled to put in my report that i did this report on behalf of them and that was all consistent with the first whether a federal court can order somebody not to do something there may be lots of things people can agree with that federal courts can't order i can agreed to play left tackle for the chicago bar that they would want me but if i don't or can't order me to play left tackle for the chicago bears understand and i don't believe judge cole ordered him not to talk to anybody at the well it would be interesting to know what the magistrate judge call thought he was ordering but that's one thing we don't know well and that's why the honor of that's why i had always looked at that october twenty second two thousand and fourteen memorandum opinion in order as the driving force as to what judge call was ordering and in that order he's merely saying that mr fryer had agreed not to list the pack members and well that's but suppose he actually wrote that down suppose there is a provision in a contract between your client a federal court in force either of those terms i can imagine a warning damages right if i sign a contract with the mayors to play left tackle and i then refuse damages can be awarded  thirteenth amendment precludes a federal court from ordering me to engage in specific performance of that contract right one would think it works the same way with the first amendment maybe there are damages but how can there be specific performance judge and he actually enters this order which says i forbid you to mention any of the sponsors in your report how can that be consistent with the first amendment well i don't think it in any right but i don't think that it is necessarily entering into a provision that is covered by the first amendment is not a horse it's covered by the first amendment the first amendment applies to everything a federal court or a federal legislat or a federal executive jobs there's no contention that this report is outside the scope of the first amendment because you say it's obscene so the first amendment applies there's no doubt what that well i would go back to and i understand your honour's frustration that it's not in the record but i would say that what judge cole would be ordering is not that mr fryer is prohibited from doing things but this is what mr fryer agreed to do and so far do you think that if i agree with the chicago bears to play left tackle a federal judge notwithstanding the thirteenth amendment could issue an bears were play for no one but it can't order me to play for the bears right so that's my question your you seem to want the equivalent of an injunction that says you sign this contract i'm entitled to specific performance of this contract this settlement agreement it's not i don't want damages i don't want to negative injunction i want specific performance well it's my question how specific performance of an undertaking to speak we're not speak could be compatible with the first amendment i don't i think that outside of the first amendment i think it's certainly permissible for mr fryar to say i  not covered by the first amendment is a private party so are you the judge is covered by the first amendment that's why i'm asking these questions i  understand your honor and i still believe though that the judge kohl without getting into first amendment issues necessarily has to make a determination as to what the parties agreed to and i defense in the end that this is a declaratory judgment and not an injunction well i do know that the case law says that motions to enforce a settlement in the rulings on those is the equivalent of an injunction so in that respect i guess i would have to agree with you but i think that what was really being sought in this case was a determination as to what mr fryer did or did not agree to and when judge cole took the motions to enforce  settlement that was filed by the alliance as well as across a motion by mr fryer and he analyze what was on the record heat to a common sense into consideration he understood  all of his involvement and all of the subsequent actions by the parties wherein they were dealing with a settlement agreement that specifically defined all those issues that mr fryer agreed to and he properly came to a clue conclusion under contract interpretation that this indeed was mr fryers agreement that's what he agreed to do and thereafter if he breaches that then i agree there would be a breach of the settlement agreement that the alliance would have against mr fryer for not abiding by what he agreed to but we first have to get to the point of what is it that mr fryer agreed to and i think that is what judge cole was was doing with respect to the cross motions for enforcement  agreement as for the turnover of the data only go to that real quickly because that's the only other issue and i think once you get if we can get over to the other judgment aspect of it magistrate judge cole in determining what the scope of the parties agreement was did not abuse his discretion there was no clear error of law in that regard there wasn't a clear erroneous finding of facts with respect to that decision   and making a determination as to what mr fryer agreed to during the march thirteenth two thousand and fourteen settlement and real briefly on the data the whole agreement was based upon each party going their separate ways and doing their own report and as part of that mr fryer agreed that he would turn over all the data that he had obtained because there was a dispute the whole dispute started as to who owned that data and who could use that data he agreed to turn that over he said in the settlement agreement i've signed releases of confidence or i've signed confidentiality agreements with all these utilities you're going to have to get releases we said fine turns out one of the utility santa rosa did not have a confidentiality agreement with mr fryer and there's no issues with regard to any breach of confidentiality with regard to that and so again the intent of the whole agreement was that a the alliance would have all the data it needed to complete its report and i believe there's no abuse of discretion by judge cole to order mr fryer to turn over that data to the alliance when there wasn't any issue with respect to confidentiality and it was ins you asked about in response to your question who's the counsel indicated that there was some agreement not to solicit but i think went far broader in the what the agreement actually was what it was that he wouldn't solicit until they first or the  funding agencies first contacted them and he had to end the alliance would advise the funding cost agencies that if they wanted to have additional input they need to contact mr fryer and he couldn't contact them so when you read that context it's clear that he's not saying i'm not going to put them in he's just simply saying if they want to have additional content produce an olympus has now been a very long time that you know they have to contact him first that's hardly an agreement not to do it to exclude them a hardly even implies that doesn't even or even imply that with regard to santa rosa we've gone over that in detail in our briefs help deigning to appreciate but i would say this the deal was that he would tell them who needed releases from and they would get releases from them it's not up to judge cole to decide if he really needs that release or not the deal was he gave them a list of what part he felt he had confidentiality obligations towards and they had to get something from them each of those parties saying that we agree you can give this information to the alliance i just had a quick question on the first amendment argument you know you never raised that in the brief right no we did i think i think on the oral argument in was no violation i don't think the court addressed it so i can't say i would imply he was i guess it's another implied decision ok all right you know not this what happens at oral argument is public yeah you know i understand that you can even give him a copy of the audio file you can download it from our web site and file it in the district court but we may do that your honor i think that would be for argument this morning