has ordered the ceiling of the cia as fun and as i understand it that file largely overlaps with a file that's an issue here  can answer that but i guess the question for you is should we await what happens in that case because if you get the material there we don't have to decide it seems to me all of our hard issues you presented to us we have here so what is your sort of practical response about whether we should wait for the ultimate conclusion of that proceeding so i have i have to practical responses and one legal response first practical response is that intel records are actually disclosed you know our position is there is you know the kansas proceedings have no effect on this case so we are still interested in material we have a legal right to them and cereal so from our from our perspective it doesn't change anything second of all i don't know for certainty i know the government is represented that there is a large over lap in the material i don't actually know that i've never seen the informant file that sealed in the kansas case all i know or you know and i've never seen any of the files that are at issue in this case all i've seen is the government's yvonne index describing some of the files i think it's likely that there is some overlap but it may not decide all the issues that this case presents and then third from a legal as a legal matter i don't see how the on the ceiling would actually change the government's legal position in this case they're pushing it it might not but it would seem to me that it would be moved to let me have it for the purpose of this the same transaction if you get the material in one context why do we have to decide anything because you already have the material because the ultimate relief that you're seeking is the material i federal statutory right to this information and you know i think just because practically speaking but if you have the information there be no longer a case or controversy if your if your position here is i need  that's what i'm trying to get it if they did it pursuant to a court order somewhere else based on whatever theory i would think this would be my it's possible and i understand i understand that the courts you know hesitant about wanting to address some of these issues but i should also flag for the court that information has been on the sealed front in the kansas case already and the government has just not released it so the fact that the district court has ordered them to client i don't read this i guess i don't understand why well and the government hasn't given it to me so it's not a problem i have the same kind of questions to judge graber did about this seems to me that i mean i veining to some extent what's happening in a kansas criminal case i'm doing it totally on foyer and i'm saying to myself if he gets what he needs in that kansas criminal case why am i going to go in here so should i wait so until that kansas criminal case gets done before i do anything here so two more i do absent my worry such to address your question about why we haven't gone to kansas and asked for my client she i don't represent him in kansas he right now i believe he is he is representing himself he has requested that the material that was unsealed be filed on the docket so he could get it and as far as i know that never happened so that's that's a first a first response a second response is that there is actually an order in kansas barring my client from seeing the file  interesting but your client is serving a life term and in some ways this whole thing seems extremely have struct in the sense of what's he going to do or he doesn't already know i mean he knows the name of the individual well at all and to say well i know his name but tell me his name seems a bit hard so that's just me speaking completely understand the court's surprise looking at yeah the practical questions the court has but the fact of the matter is my client requested this information a decade ago he has been stonewalled at every step of the way in more in two  different forms for right here through foyer and in kansas the unsealing was a result of him is inability to get the information through foyer so if i could i'd like to actually turn see the merits of the case oh it's good it's my understanding that you're not challenging the determination that these are law enforcement records or information correct oh we haven't so we're really talking about wh skinner's a confidential source that's right and whether the d a waived the right to protect the information one are we really looking at that well one way to look at it is whether or not it was a waiver i  think if i could encourage the court to to analyze it in terms of the assurance of confidentiality that was provided to skinner at the time he provided the information i think that's the best analysis to kind of reconcile compete to everyone about his work as a source the evidence that shows that the assurance of confidentiality was invalid is the fact that the government compelled skinner to testify there's no way to reconcile that contradictory and smart i don't understand that if you know on day one they say you know we're going to ensure that you're confidential and two years later they come to a different conclusion i'm not sure why that back casts to what they did or didn't say originally well i think it goes to the legitimacy of the assurance well it may show that the government is you know trying to have it both ways but it doesn't prove that they didn't make the assurance initially they a source is later public testimony could be evidence that the assurance of confidentiality provided by the government was was invalid or incomplete or was meant to only encompass  providing information up until the point that that information was disclosed at at trial so so let me ask you question do i only deference to the district court in its determination that the d explicitly assured skinner confidentiality no  novo but is there no factual determination where i would have to say the district court cannot be overturned from its factually terminat consider what the decision is after determining that there was no factual finding that the that the da assured skinner confidentiality that this record did say that that happened and they cited to the government's well i thought after we've pretty much of factual finding whether there was no weighing of competing facts we have the source agreement that skinner signed because he filed it in another case and i don't again i don't really know how to reconcile the fact that skinner you know the government said that they would try to protect skinner's identity in the source agreement and then the district court can find eleven case record we said when the information has been either officially knowledge to officially confirmed an agency is not precluded from withholding the information pursuant to an otherwise valid exam so then it seems to me that we're bound by that and so we're really trying to find out here is is this a valid exemption certainly an assurance of confidentiality and so if there was one are we looking to see whether it was an expressive surance are we looking what are we looking coded source is assured confidentiality is inadequate for exemption seventy purposes and that was all the district court cited to determine that surance of confidentiality had been provided so this court has already held that as a matter of law that's inadequate so but that's not all of happened near it is actually all the district court said was well if it's to noble review i get a look at the evidence here it was a confidential source agreement and there was a confidential file in both of those as i understand it the usa said they will strive to protect my identity confidentiality and then be forced to publicly testify that's a contradiction that that it's it doesn't seem like this and that it's i don't understand why it makes the original comus maybe not fulfill but it doesn't make it any less express if i promise to bring you a cup of coffee and i don't do it it doesn't mean i didn't promise if i just didn't do it makes a promise invalid and i submit that the courts should not be sanctioning invalid promises made on behalf of the government i see i'm treating him like asking me to sanction the government for what they did i don't think you have any right or any standing the even do that is going or might but you know what you're really asking us to do is say because the person has testified someplace else now you could release the government sure sure and i don't find any law that says i can and i'm trying to find far as what they're asking this court to do i am not familiar with a single case where the federal informant has testified publicly and then the government has been able to withhold all of that information from disclosure in both testified publicly did not release the information the foyer exemption that the court held that it did not reach the hypothetical scope of cross examination ok so it said that information revealed in public had to be disclosed but that information within the hypothetical scope of cross examination which is you know far broader obviously that did not have to be this close i will just give you some may please the court in london on behalf of the government i suspect the court would like to start with some questions about kansas yes yes issue of whether the case is going to the tenth circuit is  as far as i know i have not heard that the solicitor general has made a decision yet so we don't know if it's going to be appealed but as of now i think there's a there's a green it's in a strange interlude where there's an order on sealing it but the order and stay where it stay pending appeal your honor and i believe the solicitor general has thirty days in a criminal matter so so if i understand your answer if they go decides not to appeal the stay will be lifted and the material the material must be that's correct yes ok now in terms of what that means for us what does that mean for us i don't believe it changes anything for this case as a practical matter as was discussed with picard's counsel obviously if the solicitor general decides not to appeal the case and the documents are unsealed for practical purposes he has the vast majority of the documents that are at issue in our case it's up to him about all of them not one hundred percent i am happy to provide if it's all for the court whatever details around the edges of the differences of the files but my understanding having i have not seen the kansas files is that they it's pretty much the same with some minor exceptions so as a practical matter it would be up to pick at that point as to whether to continue this for a case from the government's perspective you know the case we go forward or not depending on his decision and it wouldn't change the legal position as counsel pointed out other than the fact that he would have the documents if this court were to reach the public demand exception issue which the government not believe it should obviously the facts are a little bit different in terms of him actually having the documents so if you have if the documents were identical wouldn't still moot this case because of what relief  quest seeks information and if you have the information already wouldn't i don't i don't believe it would actually move the case because of the way that seventy is structured and the waiver issues such that if there is a release of the documents under seventy if there's a release in another forum  ruling that some of the categories of information had been abandoned i honestly didn't understand that because our and i may be misunderstanding the record so i hope you'll correct me if i'm wrong about this it seemed to me that there were several categories requested and then the plaintiffs sought partial sommelier judgment as to some that happens a lot in that it doesn't mean that you've abandoned all your other claims it just means you want a ruling as a matter of law on a couple of them and the rest of them will continue on so why did the court hold that that when it's abandoned and was right that and that is something that is a judgment of the abuse of discretion standard because it is within the management of litigation which is obviously a very generous is that a true if the if someone files you know which one to claim a contract claim and they ask for partial summary judgment on their contract claim the district court can just say well they've abandoned their other claim i mean isn't that just wrong as a matter of law with a district court judge in this case has a rule against syria summary judgment motions and what all that means  know get another summary judgment motion it doesn't mean you don't get a trial well there's no basis for a trial in this case so i think the only option of going forward practically speaking would be another summary judgment motion which is predicted by the judges rules but but magistrate judge issued a ruling but specifically compelled release of the three categories and said the government may reject the rest of the information the government objected to that ruling picker did not at that point waived his rights to continue challenging those other documents simply because on that particular switch in that particular situation the magistrate had made a ruling pickert abandons his right to challenge for the other documents where the magistrate judge made a ruling as to all of the documents and pick or chose not to object ok you're saying the family ok so you're saying something a little different than actually what the district court judge takes a decision in front of it which would normally be made by the district judge gives a recommendation and because the party doesn't object to that the party judgment and then just submitted the documents to the magistrate judge for review that's correct are they just a court judge had made it clear that he was sending the entirety of the file to the magistrate judge to be fair the magistrate judge did say i am only ruling on the three categories that are going to me it seems to me in this particular matter he didn't really make a final order well he did say the government isn't i mean it's clear it's clearly written at the end of his order the government is entitle to re the remaining information well what would have objected to as far as the magistrate judge's ruling if the magistrate judge ruled on the three issues and concluded that that he could was entitled to that information what was there to object to to object to the rejection of the remaining documents and said that we need a ruling on these documents these remaining categories and it would have been clear to him that he had to do that because it seems to me that it would have been ok we got we got this decision we're going to go up on this decision but these others issues are left to the side they're left to be determined of the down the time i don't know how he could have got the idea he had to do something about that appealed to us then decision would we still have that in front of us i mean he doesn't have anything to object to the magistrate but he appeals the district court's decision and that part of the district court's decision that did what the magistrate said i mean my worry is that we've lost to your you're requiring the person who has a magistrate judge's decisions some parts of which he likes some parts of which he doesn't like to object to the ones he doesn't like all the time even though it's going to go to the my district court and all of that's go come ahead because he must preserve yet he could say well i don't want to object to are some parts i like some parts i don't but i won't and then you go to the district court and the district court does what the magistrate does then he appeals that seems to me he's appealing everything it's not going up and down up and down every little yes i've got to look at that i've never thought about that in my practice i'd never so i look at that and i understand your argument i just don't know whether i agree and practically speaking depending on how this court was on the seventy issue as judge perry pointed out if the three categories are exempt it's difficult if not impossible to see why the other categories would not be so sending it back would be i mean there's some some sense that sending it back would be  futile exercise i'm depending on how this court rules on the underlying issues would because we appear to have been over a review would we consider the we get to the first issue you're causing counsel says all you got to do is look at irons and the decision is pretty easy i should give you the documents or give him the documents what do you say about our irons is also our best case i would say that's why i didn't ask him about it i wanted you to give him his as the reasoning and rationale of irons this clearly supports a finding of no waiver information that's what every circuit has held since then circuits that have held that there is no waiver and even if there are subsequent testimony  there should not be a waiver of seventy  i'd like to address the express versus implied issue of let's accept the court this was clearly an express assurance of confidentiality there is evidence in the record to sixty six and the declaration that judge gra we have clear evidence in the record that  of the rosenfeld case the rosenthal case is distinguished here because in rosenthal they found there was not actually evidence put in by the government of the assurance of confidentiality which again we have here in the record  if i could all like to make two points the first is to address the question of waiver i'd recommend page twenty one of our reply brief i think that plays out kind of the scenario that arose after the crux of it of the issue is that we didn't know what information the government would disclose as a result of that order so it's it was impossible for us to or it was it didn't make any sense for us to appeal and that's exactly what the district court recognize but i'd like to actually spend the majority of my time talking about irons and before you get to that what is your response to my question about whether if we agree that there was no abandonment of the additional forms of information whether that's something that we can or should decide to novo now so the court absolutely should decide if you know  required i think if the court determines the that no withdraw occurred of the claims that and this court could absolutely order the information disclose if courts review is entirely the no so we could do it the court could say yes that we have withdrawn our claim to that information oh you misunderstand my question if we agree with you that the claims are still it's because there are so many different exemption claims at issue and we've only brief exemption seventy you know i would so that the courts are probably remanded to the different chord so that we can brief easy to look at irons and the side this case i don't mean to suggest that it would be easy what i think is important to know is that the government none of the cases that the government relies on go is for as far as what the government is asking this court to do what what i think the best way in kind of synthesizing and making it coherent and mid leave the cases are a little confused i think in some of the rationales but i think the best way to make a coherent analysis of all of them is looking the iron's irons holds that exemption seventy applies when  of a source testifies at trial the government can withhold information that was not actually disclosed that trial but that was within the hypothetical scope of cross examination that hypothetical scope of cross examination is not what we're asking for here we're asking only for the information that was disclosed at trial and that is also contained in withheld records so that is entirely consistent with irons it's also  to find that exemption seventy does not apply the information that was publicly disclosed at trial thank you counsel the case just argued is submitted and we want to express our thanks for taking on this issue pro bono pro bono coun