morning morning or honors as your hours are no doubt aware there's a debate about the value of oral arguments and of thinking about what remarks were addressed your honour's this warning i want to do try to do two things in addition to answering your questions one is to crystallize what the issue is that we're seeking relief on in this case and the nd is to give some general context because there are a lot of facts overlaying what's happening here in this case there was a search warrant plan a search warrant execution that could not have done anything else then result in the over seizure that resulted there were they could not have done anything else then result in the over seizure of documents that did result in this case this was an investigation out of wisconsin by the i r s criminal investigative division there was a search warrant plan put together by agent schrader who is the defendant here and that plan called for fifty seven people to come into this corporate office environment simsbury connecticut and to seize documents related to four hundred and nineteen dollars plants which is a tax code there was a sense that there was no abuse of tax shelter that was what the allegation was the process of doing this the items to be seized the list not only does not clearly define what for nineteen plan is nor is it clearly defined in the affidavit or in anything involving the the warrant or in the  itself but the affidavit includes a catchall line in there that says that basically any documents from any entity on site could be seized if it had something to do with a foreign one thousand plant so it was critical of the outset that the people who a an appeal after judgment in the criminal case and that is i think going to be heard by this court in december but that this particular issue was not addressed in the motion to suppress there were issues concerning the facial validity of the warrant which we also have concerns about  the question of whether agent schrader planned for and over seizure and then also failed to properly supervised the search so that an overseas are would be prevented and those questions were not address claiming that age is sure he did anything in terms of his written operational plan or his advice to the agents that was inconsistent with what the magistrate judge authorized right but i believe it was inconsistent in the sense into a general warrant i don't think necessarily in writing or orally your honor what i think it was in the implementation of the plan and in the design of the plan itself fifty seven people missed a generator doesn't know who these people are he's pulling them from the boston office and some people from connecticut the difference it makes your honor is that is especially given that catch all provision in the warrant as signed by magistrate judge smith it was necessary for these people these agents to understand what four hundred and nineteen plan was so that they didn't just sweep up every document in the place no correct your honor and so you could be the most brilliant or something agency in america you still might not know and it was incumbent i believe on agent schrader and on agent and strong as well who is his motion to dismiss is also part of the question here it was it comes even assuming the search was excessive was there clearly established law to indicate that indeed it was excessive and why doesn't qualify why i think for two reasons one because it's black letter law that one has to accord to the confines of the warrant and the search did not do so because there were three hundred and twenty two dollars boxes seized we were here two years ago in front of your  honor judge chan and some other panelists regarding all this evidence that's been seized and still has not been returned there were also a levin computers and servers that were imaged they brought down an eighteen wheeler truck from wisconsin and planned for fifty seven agents to come in and  seems to of the trial court seems to assume that that was proper and therefore said well you needed thirty nine agents because you needed to seize all these documents but that's not but these documents were not responsive to the warrant so if you're going to do a search that isn't within the confines of the to conduct when you were arguing it was too broad a search would it take you more time to conduct the more detailed search that your version it's possible your honor but and i understand that that computers are imaged in these sorts of things happen so that they do they can do some more searching after that and there's there's some leeway in the law parrot lee for that but it does not appear to be necessary if they have done the proper preparation if these people knew what they were looking for because you don't open up all these other avenues if they know what for nineteen plan is they don't they don't go into all these other businesses document noted that you seem to argue to the district court that it was so obvious what a four thousand nine hundred plan document was and was not that the agents who were doing the search should realize that on their own and that's inconsistent with your arguing more generally about agent surely you're and sponson that i think you are multiple times the district court noted that and far be it from me to to say anything about judge under his interpretation but when i said that in the brief what i was saying was that looking at it now from the legal perspective of the judges looking at it in the lawyers looking at the search warrant we can understand looking at it what's responsive to it and what's not and so in looking at what was seized we can clearly see that there were items seized that were not responsive whether that would be sufficient for an agent who's on scene who has by the way not been given instruction the night before as the evidence showed that they ran over the items to be seized without any discussion of what the four  that ought to be concerning the court thank you thank you good morning your honor will finger for the individual defendants agents and strong and schrader opposing counsel did not discuss the claims against agent and storm whether they were limitations and whether they appellant's would like to rely on has not been accepted by the circuit in the circuit certainly shouldn't accept that exception because it can't be met in this case with regard to bivins liability for agent schrader i'd like to make argument is that there's a different issue being raised here is that true or not i don't think it matters the validity of the warrant has already been upheld so questioning whether it's a general warrant or facially overbroad is as i said not before the court had versus humphrey would bar the court from addressing that in any event regardless of the arguments that are raised about the warrant with regard to agent schrader the district court found that he was not a supervisor and also was not my boss under any  other theory of liability number one he wasn't there until the very end of the search so wasn't participating in or aware of any alleged constitutional violations number two there was not a failure to train he held a pre search briefing at which all the agents were present including his supervisor they went over the warrant they went over the items to be seized and in fact agent as from said they went over exactly in her deposition exactly present and case there were any questions about whether there are legal material was to be seized i would know that opposing counsel talks a lot about overseas or and documents that were improperly seized but doesn't identify what those documents were other than mentioning boxes with legal notations on them he certainly can't mean that all three hundred some boxes were improperly seized with regard to the number of agents that were present at the search the district judge found that agent schrader's plan it was reasonable based on a number of factors and the information that he knew at the time it was an extremely large building to be searched with a number of offices in it there was also a number of employees present who would have to be supervised and gathered in one place the search warrant plan provided for videographer a supervisor for the taint team and there was a large volume of documents to be searched so the fact that there were a large volume of documents and several hundred boxes were seized in what was a fairly long indicates that the search warrant plan was reasonable and light of everything known at the time i would also argue that most importantly because this is a big case that it was not clearly established at the time of the search that a number of the number of agents was clearly unreasonable or per se violation of the law in fact we cite in our brief a number of cases that indicate that courts are very reluctant for obvious reasons to come up with a per se approach to what number of agents are  so just to quickly address a couple of points from counsel's argument st off the supervisory liability argument under cologne does not apply to the planning claim the planning claim is a direct participation claim resolve formulator of those of a plan has direct liabilities is there clearly established law that you can point to that would say you know having fifty seven agents involved in a search building of this size is unreasonable or excessive your honor there is a reasonable miss test that's what's clearly established in the law there's no number and the courts that have addressed a rotten bergan mountain pure have rejected even judge underhill said it's impossible to come up with this was a good number because the circumstances will change not it depends too i think on the amount of force that's expected and there was low risk here whereas in rothenburg mountain pure state of red these are situations in which force was expected and in fact there was there was some indication of that happening also for lead with overseas or you're saying it's reasonable force a lot of agents in this particular situation because it wasn't necessary for any of the three needs force means a number of eight or number of agents means force yes which is so that's the question that was wrestled with and ruttenberg red mountain pure as well and there are a couple of others are that are side in the briefs that i can't recall at the moment so anybody ever say that is a law no but what the courts do is they leave it now because the test that they say what they say your honor is that there is no specific number that we can say because every circumstance is going to be different but the hallmarks are reasonable ness so there is there is the situation in which would be unreasonable to have the number of agents that could be brought it just wasn't any of those particular cases except ruttenberg in the number be reasonable not based upon a concern that there's going to be violence but again going to the number of employees that are there the square footage of the building you know all the different cubicles have to be sourced can't that justify leaving a lot of agents oppose as opposed to the city believing that there's going to be some violence yes your honor and that's the question we'd like to put to the jury  and just with respect to the supervisory piece judge underhill did find that held that mr rader was not a supervisor i know that there's no test actually that i could find that clearly states what a supervisor is in the context of supervisor liability if you go to title seven cases in employment there's clear tests out there for what's a supervisor and what's not here we have agent schrader having formulated the entire plan being the person there who is supposed to have acted he was essentially the knowledgeable person on