one five eight four eight the american civil liberties union of florida versus the city of sarasota and michael jackson mr stevens that they are able to to do it is there a special order for this particular device that they have to get or is it just a regular old pen register order i am not confess i'm not sure this case obviously does not there's the first order to actually get the telephone company to pellet the telephone company to provide the neighborhood where they could deploy the sting right i will confess i'm not sure about the second order if i make my estimation is that it is necessary but i can't speak to address my second question is you've already obtained documentation on two out of these thirty force applications that michael jackson of the court he did that under procedures that allowed you to get seal court records i don't know what they are why if you can do that are we here on this case why can't you just employ that procedure and get all those records from the state court and i think there are two answers to that the first is that the florida public records law  mandate and this is the records law that applies to agency records who are executive records as opposed to a florida supreme court rule that applies to and discusses how a person might go about getting public access to a question these are hard legal questions if you can walk into the courthouse tomorrow and do whatever you did with those two at thirty why are we here why don't you just do that i would love to answer the question it's the public records laws not  by the availability of alternative routes nobody said it was ok why don't you do the other what i suggested the first and probably minor point is at the time we requested the records at the time we filed the lawsuit the records were held exclusively by an executive agency by i'm sure so to believe i got now there we couldn't have gone to court at that time which i think goes to your bigger question and i think that frankly is the the bigger question at the heart of this going to court but staying here is for attorneys no your honor is not about turns and i still don't understand why you don't do what i suggested we find something deeply troubling with a purported federal government is michael jackson detective jackson was a federal officer when he applied for and received the state court sting ray orders we find it deeply troubling that a federal agent is going to state court for judicial oversight and this is essentially what it is when you're going to get a pen registry order the mandates of the four to support the united states supreme court this is in the re a decision we cite in our brief is that the obligation of the federal agent is to a bay the federal court rules here we have what is purported to be a federal agent going to state court the question is why would he why would he want to do that what is the what is the benefit to be had do rule forty one does provide an exception when a federal magistrate is unavailable i mean it was quite shocking that the federal magistrate was unavailable every single time detective jackson sought a pen register order who were they looking for they were my honest understanding and we have a list of the cases that they sought these requests for and at least in some of the circumstances they were looking for fugitives state fugitives or federal fugitive state fugitives and the only reason why uncle sam was involved was because they have these memorandum of understanding that the deputy u s marshals can work on these task force looking for state fugitives otherwise they wouldn't be out there looking for him i think that's right right so what's the harm then in a state officer who's got this dual authorization to go into a state judge and if they go into a federal judge would never get him and i think that's precisely it if you went to a federal court you wouldn't because federal law congress has realized there are certain privacy concerns that people should have in their whereabouts that telephone companies have a tremendous ability to relay information along foresman about the whereabouts of their subscribers and for that reason congress has specifically limited federal agents authority and ability to get the subscribers information the locations of the subscribers location through a pen registry order and you have to have more most courts and i think the department of justice is perspective today is that you need a warrant it will forty one warrant so when faced with this dilemma of you're right they would never get it from a federal court let's and congress certainly has some deep concerns about offering up a subscriber's physical location upon mere proffer that it would be reasonable or related to an ongoing criminal act criminal investigation congress certainly wants more that you are not a state supreme court says you have your butt but here it's really not a criminal investigation they are looking for a fugitive who already has a warrant issued for that person's arrest and so all th doing is trying to track down where these people are located shorts i think that they are in a prove you know that he was the bank robber i think the standard under both federal and state law with respect to penn registry is that you have to prove that it's relevant to an ongoing criminal investigation and so i guess it comes back to the question why is it what is wrong with the state law enforcement officer going to a state court to get a state order there isn't but the government's contention is he wasn't a state law enforcement officer he was a federal officer when he did that this was stevenson we're talking a lot about what seems to me are the merits of your mandamus petition but the district court never ruled on the merits of your mandamus petition because it found that there was no jurisdiction well i would respectfully disagree i don't think they found of all the district court found that the deputy was acting as a federal law enforcement officer jurisdictional purposes yes correct and then refused to overturn the decision initially entered by the state court that there was no jurisdiction because the state public law didn't apply in that sort of circumstance and i got that right i would respectfully disagree i think but let me touch on this two points the first question is what did the state court judge say the state court judge said between failure to state something that's enough to attach jurisdiction and failure to allege enough to get you a claim on the merits but at the end of the day your claim was not dismissed on the merits right it is my understanding and i think it's a plain reading of the district court's ruling is that it was dismissed for failure state a cause of action continually in reference the district court references the state court order that says florida records law does not apply to federal agents and then he also at the district court also said the base is explain explicitly the basis of the dismissal because the plaintiffs cannot allege or the plaintiffs can allege no claim under state law they cite for access to the federal records they seek to hold on second please tony can you please a five minutes for him and then we'll give mr flynt and mr schultz an additional amount of time as well please reference jurisdiction i think that this is simply bearing out that there is some inconsistency in state law with respect to how a petition for records if it does not state a cause of action what should happen ok let's whatever you think the basis was my continuing and you had started to argue before we talked about the nature of these applications that you thought the district court had improperly resolved a factual dispute so you want to return to that yes the district court's ruling could be thought of as either a dismissal for failure state a cause of action a summary judgment ruling after fact finding or a dismissal for lack of jurisdiction in any of those cases in all of those cases it either should have accepted the a c l u s allegations as true or per minute it notice and an opportunity to discover facts supporting its position and i would note that those facts were nearly exclusively held by the government with respect to a dismissal for failure to state a cause of action is clearly black letter law that the court needs to look only at the complaint and our complaint clearly specifies that michael jackson detective jackson created or received the requested states thing or orders and applications in his capacity as a sarasota detective and you obviously think that in iraq the tories that the district judge the agency and the officer who makes the application must specify the agency in this is singular not plural the agency requesting the pendant registry order usually included in the first sentence of the application or many times in this right below the signature block we know as a detective jackson explained to us that he signed one of them for detective jackson sarasota police in fact the state court order specified in each of those that's exactly and what else do you want in that we would also want to know what was the lead criminal agency so what agency that's the same thing you just said it could be different and the reason why i say that is i believe a detective jackson submitted ten registry orders on behalf of like you know it's sarasota sheriff and i'm that's an example what out the governor and i think this of course would go to you know what's the point of this  sought to fact in already outstanding warrant why would that matter it would go to the u s marshals whether whether or not they sought them for the right purpose or wrong purpose what matters to you is on whose behalf they were sought sure that is not correct but the u s marshal does not seek it's not within its purview to assist local law enforcement agencies develop a criminal case it's their it within their purview to assist local law enforcement agencies to apprehend a fugitive so that this is probative to who is behind the wheel do you want paper discovery or depositions to we would like a deposition of detective jackson the third the fourth thing is the process and oversight of the federal authorities in these regards how's a case that dotted what happens who's carrying this it i mean it could very well be in a number of these cases where the sarasota police was seeking a fugitive it could be that they got the order and then they it was just the sarasota police folks who were looking for the guy and that the no one besides this they're going to have more if you succeed they're going to have more litigation just this process and i would otherwise well i tell seat number two you well i think the government has traditionally and consistently taken a very hard line about sharing any information about how to use a sting rays what the capacities are they have a lot of gag orders i know of certain cases where state prosecutors have dropped cases once the defense attorney asked for the sting ra know get a copy of the current memorandum of understanding of course the one that we have that's in the record specifies who retains custody of the records for the task force the u s marshal task force and it says purse the agency that refers it to the task force is the the responsible agent agency that's in page one and on page three it explains that the responsible agency retains the records by my reading when the sarasota of the united states of america and special deputy united states marshal michael jackson the simplest reason why this court should affirm was readily apparent from the face that petition the united states marshal service in accordance with department of justice to  regulations instructed special deputy u s marshal jackson not to disclose the information at issue here and the state court lacked terrorist action to compel him to do so contrary to those instructions for that was once you put once you put the case into federal court now it becomes a federal court matter well the failure is and you're essentially removing on federal officer grounds through thirteen sixty one and the balance of power shifts because under certain circumstances federal courts have some authority to require federal officials to disclose or comply with certain discovery requests correct your hon first if the court is exercising to derivative jurisdiction of the state board then the district court does not assume that authority but putting that aside if it if you know you when you removed when you removed you made it a federal question case correct right because thirteen sixty one buy used a permissible method given the language of thirteenth sixty one to get the case post judgment from state court to federal court and you've now made this federal question because thirteen sixty one says that the federal district courts have original jurisdiction in these matters so now this is sort of a mix of federal and state it's like a federal question case you know what it's like it's like a federal tort claims act case where you've got federal question jurisdiction but you're looking to substantive state law to figure out the answer to the question about liability and damages so this is not this is not a normal state court case where a state court might not have had the authority to compel a federal official to comply with state law no more  even if even a conceding that the district court has original jurisdiction of all it has to if not if not the case shouldn't be there right and we should send it back well no we were moved on to ground fourteen forty one and forty would too badly were but it will no no no no no no don't don't  let's not go there ok so you said that this court has jurisdiction under thirteen thirty one and thirteen sixty one correct and that you're removing pursuant to fourteen forty six correct ok what else is there i'm remembering incorrectly then your article as i recall to be removed on about fourteen forty one at the end of your last sentence says that you want it removed to the middle district of florida tampa division where the circuit court resides and then you cite fourteen forty one and fourteen forty two without any explanation of anything correct that mean we moved it based on four hundred forty one which which includes the original jurisdiction of the court is your hon in the body the removal petition why don't you say you're removing pursuant to fourteen forty two as well but again your honor as i recall that's what we've that's what we did that in there were the removal says forty forty two and we attached a declaration from a special deputy united states marshal jackson is supportive that ok let's put all that let's put all that aside ok but putting that aside let's put all this aside let's talk about this do you think that the dismissal was on the merits for failure to state a claim or for lack of jurisdiction or that it doesn't matter it doesn't matter and it was for lack of subject matter jurisdiction ok that procedural history of the case was that the state court very clearly dismissed for lack of subject matter stiction did i thought it said i thought it said that the statute just doesn't reach you it says in that of bill the hood problem that you can't convert a failure to state a claim into a jurisdictional dismissal lest unless the jurisdictional allegations are pa frivolous the state court said and i quote the court does not have jurisdiction over the petition has played a major pacific finding that the court does not have jurisdiction and what was before you that i was obviously that was obviously in correct at the time that it occurred right it that the court lacked jurisdiction the reason is very simple in my purse but from my perspective i don't perform to speak for my colleagues at the state court hearing no one presented any evidence whatsoever as far as i can tell of the deputy's status it was a mere representation of one or two assistant u s attorneys am i right about  about his status correct correct and our law is very clear that the statements of counsel at a hearing do not constitute evidence in my right about that that is generally correct unless the site does not and there was no no no no no no less the other side stipulates or agrees if the other side stays mute because it doesn't no that's not a stipulation or a concession if you're a nuke each you cannot proceed on a factual issue simply based on the representation of one side of a dispute in an adversary system about what the facts are well again it was more than that your honor because of the face of the petition but in addition to petition say in part that he was acting as a state law enforcement officer correct isn't that enough to create an issue of fact no no no because the united states pursuant to its two regulations instructed you're acting on behalf of the government or a private litigant make a representation contrary to what the other side is alleging and have the court accept your representation and deny relief to the other side unless there is a stipulation that those facts are correct there's no such concession or stipulation here your honor all we did was confirm what was already in the petition and the petition sets forth that the united states marshal service instructed that these documents not be disclosed that in their petition all we did was confirm that at the hearing and make that legal argument pursuant to the federal housekeeping statute five u s c three zero one and the department of justice is to regulations he has no authority to disclose that information contrary to those those regulations that next the question of whether or not he is a federal law officer only begs the class and he gets paid by the state so obviously there is some issue whether or not he is a fair law so there is no evidence presented well even in their petition they recognize that he was a special deputy u s marshals never been never been questioned in this case whether he is one the question is what had he was wearing at the time he created the records so what they're really arguing is that the department of justice overreached instructing him not to disclose these wreckers and there's there's a huge issue of you available for them in dish or cork not state court pursuant to the administrative procedures act that is the proper mechanism for challenging the department of justice is if structured if you if you establish all of the factual underpinnings of that premise yes but ok let's move to the district court now sure the district court dismiss on jurisdictional grounds or failure to state a claim grounds the district court how this case can proceed they failed to do so instead of articulating how they could proceed given that the court had already dismissed the current case for lack of subject matter jurisdiction they failed to do so instead basically tried to re argue what had already been decided by both that state court in the district court then the district court said you failed to identify how this case can go forward if you fail to articulate a claim for resume so you're saying that there was a dismissal by denying the rule fifty nine motion and that dismissal was based on jurisdictional grounds absolutely then why under our standards why wasn't jurisdictional discovery available to the a c l u well for a couple of reasons first  only have jurisdictional discovery if it matters it doesn't matter here is it ok let's give you a hypothetical that is far removed from this case ok sure if he's not a federal official and he's not  marshal service is there a dismissal for lack of jurisdiction in that so it matters whether he's a federal law enforcement agent or not when he's doing these things does it not know not when he's doing these things it matters whether the department of justice can instruct him not to turn over the tall kid then let's flip the question if the department of justice didn't instruct him to do this is their jurisdiction if the department of justice didn't did not attractive to he didn't apply because the two regulation is your department if the department of justice never told him anything do you get dismissal due to lack of subject matter jurisdiction if he was just a state detective is in dispute some of the applications indicate that he was not if you view them in the light most favorable to the a c l u now that we have some of them indicate that he was seeking them or may have been seeking them on behalf of state law enforcement agencies and not the federal government do they not that there is that you're correct but again it goes to that's a question as to whether department overreached by telling him he couldn't disclose these and this you know it goes to whether that the government told him anything at all you're asking you're asking a court to accept his declaration and his answers to the court's limited in iraq are tories as correct at face value without anybody being able to question them in any way shape or form and that it seems to me is very very different from the adversarial model that we normally encounter in court i'm not saying they win on the merits of their mandamus petition i'm questioning whether or not you can completely cut off discovery to them on the crucial issue of whether or not he was a federal law enforcement officer at the time he asked for these things right and whether or not the government told them don't disclose any of this stuff they've never asked for discovery on whether the government told them not to disclose it because in their petition it puts forth that the government told him not to  dispute that's never been if that's what they've been told that's what they've been told you can't allege anything else on the ruhleben then what you've been told so but they have to have a plausible basis for arguing that he was not he was told not to do it the first off the at the end of the let me ask you this doesn't the fact that the district court judge thought the facts were deficient he did in iraq the tories he didn't just look at a piece of paper he said answer these questions the fact that he did that meant that he thought there was some factual question here and the fact that he did that without giving the a c l u a chance and themselves to address the facts or to flesh the facts out that shows facts are important here downplay well i think there's an win based on some facts it presents without giving the other side a chance to have discovery and produce it's on facts bicycle rule fifty six law right and i do not believe this was decided on rule fifty six law but the court did permit discovery the court propounded his own discovery and there's no practical distinction between the dish or corporate running its own discovery or entering an order limiting the a c l u to discovery based on those issues they had discovery what they're arguing is that they didn't think that  enough and that's decided on a beach or discretion grounds to dish or court is empowered to determine how much discovery is permissible and what they were asking for is the merits of the case the actual applications and orders at issue here in the distributor is correct by limiting the discovery but no one is suggesting at least i'm certainly not so just saying that they get all the discovery that mr stevenson has said he wants at this point in time that's not the issue and we're not bound by what a party is asking for the question is whether or not they were entitled to get something beyond for example the district court limited discovery to the two applications before and one after what if what if there were problems with some of the ones of this record that nasco about  all of the applications who's to say that he'd be instructed not to answer those because he's already it intil he has authority start off with a problem you don't get to have authority but you don't get authority until you have a request correct so if they if you get a request  says tell me the same thing the district court ask you but tell me about all of the applications who's to say that the department of justice is not going to let him answer those in iraq or tories we don't know because correct we don't know but that's not what is what's been before the court but you're wrong about to have the department of the department justice to regulations say he's not authorized to provide information starts off with a promise you're not authorized he's provided some because the department permitted him to answer those because they were in iraq at tory's that triggered the department  making a decision about whether a let him answer but unless you have a request you're putting the cart before the proverbial horse if you go back to it you'd be in a different position if the iraq the tories ape their discovery they propounded the d o j told them no no no you can't answer you'd be in a whole different ballgame but that's never been done the o j has never exercise discretion on that point respectfully your honor it exercises question from the beginning of this case and told him not to a this petition for main damus to disclose information and those documents the united states instructed him not to disclose from the beginning that's what this is that's what this lawsuit is about not this other discovery that he wants to get into that's that's beyond the scope of the main damus petition it'll drunkard's records that he was improperly keeping right yes the original applications that order should have been filed with the clerk and then we had on sale you not filed this case heaven knows whether they would still would have been in the deput state court would realize that they didn't have them and could've instructed him to file them as he should have done initially which we concede and in fact the united states hasn't been hiding anything we voluntarily disclose if this is filed all these applications and orders intersil as soon as it was brought to our attention that our special deputy marshal neglected to do so the question is not whether or not he is required to turn over the things that the a c l u wants him to turn over the question is in your in your words whether or not there is jurisdiction correct and a question that is important in that point is whether or not some discovery should have been allowed and then you say you think the answer to that is a clear no the answers a clear no because the quote the question is in scott's backspin courts case united states versus to eat is why is that because he says so because of the apartment set so the department the department file anything in this case to say that did it first off the department file anything in this case to say that  in his application he did the department file anything in this case to say that if the answer is no well he filed it to demand he says the department told me x the department filed it on his behalf your honor the department of justice filed his collaboration is it it's his declaration and he's being he it's his declaration but he's a federal officer and he's being compelled or they're trying to tempt him to compel him to produce documents that the federal government says are their documents and he has no discretion to do that to florida public records law and you may be right about that at the ultimate form but there was no jurisdiction according to the district courts would never reach the merits of to eat but you don't need to read it first off you don't even get to two until there's a final agency decision correct and then they have to do it action pursuant to administrate procedures act but none of that of that's happened nothing that was been i would not be none of that was discussed by the district court below because they never did it your honor that's on them because they're not proceeding under two they're proceeding under florida public records law which you removed to federal court on federal question jurisdiction correct but you don't waive sovereign immunity you don't get to skirt the regulations by filing a lawsuit under florida law and that's what's happening here there's no waiver of sovereign immunity and it's their burden to prove that there's been a waiver of sovereign immunity do they look at how do they do that without discovery waiting that's to get to the ultimate relief not to get to the question of whether or not to even apply and whether or not even a federal official i know we probably have a disagreement on this point and i've taken you way beyond i thought you want to stay away from this mess as far as you possibly could but i guess not so welcome to the fire here in atlanta i'm thomas schultz for the city of sarasota and what i'd like to talk about is the forest the forest in this case is the fact that the records being sought by the a c l u and its warren mandamus petition are sealed florida judicial records they have stat said and sworn not once but twice in their petition and i'll quote from that the records they see are quote records of the judicial branch within the re within the meeting of the florida rules of judicial procedure and then they cite to the rule these are florida judicial records the florida supreme court has answered a certified question and times publishing that certified question was our florida judicial records subject to mandamus petitions or other really under the florida public agencies rec act that's what we call chapter one nineteen that's the act that they cited in their petition that's the relief they're seeking here the florida supreme court defendant typically answer that question no florida judicial records are not subject to chapter one nine hundred or under a mandamus petition under chapter one nineteen the problem is that that issue was not addressed below nobody asserted an exemption from chapter one thousand below on state law grounds and the district the district the the state jurisdiction over the pleading as play court records federal documents and federal criminal investigations are not subject to chapter one nineteen so judge williams first of all  his list of reasons why it did not state a cause of action said pointed out court records are not subject to one nineteen unfortunately these issues which i call the trees and the case not the forest about whether jackson was a federal or city officer have consumed the attention of the federal court below and your honor the state court also sided to the morris publishing case which i presented to the cork when it was talking about quo there for the act is not governed access to judicial records citation to morris publishing group  first district court of appeal case which ruled exactly on that point consistent with times publishing and your honor i must respectfully correct you from the outset on behalf of the city urged the federal court that this mandamus petition did not state a cause of action because it was seeking sealed florida judicial records so the dismissal of the district court in your opinion accept your argument to a rule and on the trees he'd if he ruled on the trees and he reached the correct result for what the a c l u states is the wrong reason but it i still the correct result i put before judge marriage day morris publishing and all of the arguments regarding the fact that these are sealed florida judicial records the court did not reject those arguments just didn't address them didn't pass on them did not pass on them simply and i i would disagree with the u s attorney for a moment the way i read judge marriage order as he's dismissing for failure to to to state a claim rather than dismissing for jurisdictional purposes the  gates to even be in his court you have to be a federal officer so he sort of stuck with that theory is and that's as mad as you're thinking it would have been a good idea never to remove federal court and we had and certainly the city didn't petition to remove but that that issue as as interesting is that is for an academic discussion consumed at the federal court and the arguments with the city being left continually trying to get the federal court's attention that these are sealed florida judicial records over which chapter one nineteen does not apply if you look at the transcript of the mad federal magistrate wilson's hearing on the a c l u is motion to conduct discovery i was urging it's all set out in the floor rules of judicial administration judge wilson he didn't allow that discovered he he did not allow the discovery in the federal k case because what the when we got a state court order sealing these applications and petitions and a federal magistrate saying release these sealed orders and petitions and detective jackson further testify about the content of the sealed orders and petitions the federal scuse me the floor rules of judicial administration address the confidentiality of sealed court orders i note in the reply brief of the you they try to make a distinction between sealed court orders and not disclosing information and seal clore court order they cite to a texas case in florida there is no distinction if the court record is sealed that information is confidential and till the court unseals it there are sanctions contained within rule of judicial administration four point two zero and i just cite to the provision its subsection i five would states that if any person party or non party reveals confidential information to the public that person shall be subject to sanction by the court so the a c l u is asking the court to issue a subpoena to detective jackson have detective jackson come to a a deposition and violate a florida state court order by revealing confidential information and that's why we have urged the a c l u for the last two years to file these petitions under the florida rule of judicial administration and in fact judge wilson said i'm kind of paraphrasing here but he did say why don't you guys do that and then he also said what's the answer to that the answer was no we don't have to do that because under warden  the warden the warden case worden be venit they say well we can do public records or we can do or we can do a judicial administration motion so we can do a public records request or we can do that but that's in can obtain those records through the collective bargaining process that was exactly wrong in the court district court said that's wrong they were public records bennett warden did not deal with judicial records times publishing dealt with judicial day based upon under close you have a case in this in this circuit called close which which stands for the proposition and i'm sure you're familiar correct reason in the record supporting the end result and in this case the correct reason in the record is that they are seeking florida judicial records this mandamus petition did not state a cause of action under one nineteen on the day it was filed and state cut judge williams recognized that and as i said on fortunately that the federal district court instead began focusing on all these other federal state officer issues that were being raised by the a c l u is your is your proposed russ aleutian the same if the dismissal was for lack of jurisdiction as opposed to dismissal on the merits for failure to state a claim i don't know the answer to that it's a harder question i think i just don't know  and he states quote because the plaintiffs can allege no claim under the state law they cite for access to the federal records they seek this action is dismissed i don't view that holding as a dismissal for lack of jurisdiction but rather for failure to state they claim the the other issue we've we've taken you way over your time i don't know should i conclude your honor sure but the other point is if this thing were remanded and this is another point we were trying to raise in the district court what are they asking the district court to do they're asking the district court to issue a petition to manned for mandamus to the clerk the sarasota circuit court to seven different florida state judges because the records have to be unsealed for these to become public they have to and the only way that you can do that is really under the rules of judicial administration but the a c l u as it is suggesting i suppose that the federal court can order state court judges to walk into their chambers and the federal court can order the state court dwelling on the question of the state court records obviously we're not asking the court to the district federal district court to compel a state court to end over its records these records are held by the agency but they're held by detective jackson  and so you're asking him to violate state law in other words you're asking there may be some records in the court that you're i don't know if you're asking why he doesn't happen or you're asking somebody who has a job it will detect a jackson or the folks at the u s marshal's office in fact they make that distinction specifically in the pen registry statute it says the records when filed in the court will be sealed and when you give a copy of this order to the telephone company don't disclose it it redundant entirely redundant if sealed records always couldn't be disclosed sealed records protect people from getting the record for not without your adversary just said the law gentlemen forget the telephone company says if something sealed that you can't turn it over i  or court records versus one nineteen and i'll rely on the brief for that what i'd like to do is get back to the allegations in the face of the petition did not call into question the jurisdiction  simple assertion that detective jackson was also cross worn federal agent doesn't mean that he applied for the requested records in that capacity similarly simply because we noted the reason why we hadn't gotten the records as big as relayed to us by the city of sarasota is because the u s marshals office has instructed the city of sarasota not to release them again is not our allegation we're just relaying what we were told with respect to i know there was a lot of discussion about two and frankly i am lost on this one the reason i'm lost is because a to regulate the statute my reading of it applies when the united states government is not a party by virtue of the remove by virtue of detective jackson claiming to be a federal agent i think by all accounts he is a party so this is not a state court action where we're looking for records from you know federal agent this is a now a federal action with the federal government involved as a party obviously we didn't frame it that way we don't view to as dispositive even at the state court level because we don't contend he is a federal agent when he applied for these records  could tell he was a state court or a i'm sorry estate agent but how can you have the argument both ways he is a federal agent but he's not a federal agent if he's not a federal agent and the records aren't federal records and what's wrong with judge mary day's dismissal of the case saying we don't have jurisdiction over here at let me address that because i think the question is dismissal on jurisdiction again it's a bit befuddling to me  the district court spent two or three pages explaining why it has jurisdiction i'm not sure how it's then turning around and dismissing the case for lack of jurisdiction that would be a very strange twist right after it found it had jurisdiction what i think it did is provisionally found it had jurisdiction to let the case proceed and this is what the courts have proposed most notably in a morrison that's what you're supposed to do make it a if it if the jurisdictional question is wrapped up with the merits and here it is whether the we get the records because he was a state actor under the state public record law is clearly germane to the question the jurisdiction of whether he's a federal act and we should be in federal court to have a federal court to resolve this question and so when the the jurisdictional question and the merits question are intertwined it's imperative what the district court do it's clear you  accept jurisdiction and then you resolve the case on the merits and so what we have is a merits decision without adequate and out of her record all right now you want more discovery but i think initially when it was removed you didn't think it should be removed you thought it  federal jurisdiction ever reason you've got is that what you want what do you want you know what i want is i want this court to take a serious look at what is arguably the most troubling issue in this case and it's the what appears to 'm not sure i can i'm not sure how you must know you've been doing this for a couple of what i was hoping to get to resolve today and have an answer that question but i will say this is does present i mean if you go back to state court what you've got left is an appeal right agent when he applied for the records i think we'd be ever pretty clear path i'm assured if you get that from us because you want discovery you think you need discovery to flesh out the issue short and has the record stands now i don't think you can say that as a matter of undisputed fact i think that's correct yes so i think what we need is discovery and frankly that's what they the court does propose when there is a a question of and otherwise by removing the government has given federal governments in you know your final case today