morning your honour's i don't want scott mcmillin i represent like her getting joining us today is my client dimitri karas he's in the gallery the first case that we're going i'm going to present on is the the order in independent action and engage in some litigation in the court in the district court in made an appearance the district court pointed out that there was there needed to be a further demonstration articulation of the reason sort of for good cause because the it is a strict scrutiny test whether an eye with her matter should be remain sealed and had less strict scrutiny test that there's a compelling state interest favoring disclosure can only can be overcome only if sealing serves a compelling interest there's a substantial probability than the absence of sealing this compelling interest would be harmed and that there are no alternatives to sealing that would adequately protect the compelling interest and what are you quoting their counsel i am quoting from this is seattle times comp company versus u s district court from western washington this is a was quite quoting from was decided under the public interest of the press interests and actually that was in search of google e mail accounts and it was citing the seattle times and that lot of cases your honor the comic con a case to some what and what what this circuit is that nice circuit ok and so you're saying that one of our panels three judge panel over ruled another three judge panel how can that be under miller versus gammy well i don't i th site is that is questioned and the the fight that i read from said that it's it's over ruled in part were questionable so i may be incorrect on that your honor and i don't want to say what i'm concerned about  sel is here we have a case where you've asked to have the the affidavit unsealed all of the information has now been unsealed except for the names of the agents involved you have a situation where allegedly your client had targets if you will of the images of some of these agents you put their names up on a website you ordered pizza to be delivered to the man's house and you had a bunch of people standing around in highly threatening wouldn't you say you know or i think i don't believe that the facts as recited are entirely picture and they put it into a large cut out cut out that you see like on the target range right well there was no target no it's damage there don't like cut outs on a target range it wasn't cut out on target range like like kind out on target range you're on a cut out on target range does not have a bubble where quotations can be placed with words for the person say but it was a similar size as a cut out of a human being that you would find at a target range i don't i don't believe it was a similar size it's certainly there's some what was the size of this kind of well it was a it was a life size cutout and that's why you have a target range because when you're at a target range you want to shoot at life size stuff and there are i've never seen a life size full color target a sitting where you say i'm not talking about the color i'm talking about size i don't believe that there's anything in the record that reflects that i mean that's an inference is being drawn and  three i think life size or are they smaller they bigger well they're three or four you know their life size of the state of the power so right and this cut out of the a t f agent was life size right the entire the entire body right so if you're matching up the torso as they were the same size sure and if you didn't have the picture of the a t f agent and the one that your client did and it was just a solo at it would be very similar to what you would see at a target range i would disagree with that because i the target range any everything i've ever seen a target range or a silhouette like that as has been different and this is a target range target ra silhouettes do not have a bubble for statements to be made and crayon to be hanging from them so you could put up little words in the bottle lots going to the next thing i want what about the listing of the folks  information on a website you deny that yes ok what happened that i don't know where that came from there was discussions about the names of the people that were representing the parties on a blog and it wasn't operated by lycurgus it had nothing to do with like her and that that is actually in the record that was taken from the news source and it was commentary from other members of the public discussing what these judges or what these attorneys what they were arguing and there was no addresses associated with them and what about the pizza now the pizza the pizza mr karr as for like  employees standing outside right i don't want to be i was delivered i don't i don't know about the records is that i don't know if that's true or not i'm just asking you i'm not familiar with that statement i do know that there was a pizza delivery man who delivered pizzas and was treated not as somebody who's bringing food but is somebody who was a threat and it was certainly taken out of remarkable i think for the agent to think it was a threat no i don't think it i don't think it was a reasonable fear isn't this doesn't this really get down to whether the district judge had reason to believe based upon the cutout that we've discussed and the pizza put aside the other that the names of the agents  involved were important to keep protected simply because there was a threat against them is that a reasonable assumption for the district court to make under an abuse of discretion and i don't believe that that was a reasonable suggestion because  the first amendment there was no truth there was no press amendment case counsel you're not a press person we're talking about we're talking about a criminal case where certain things were  and certain threats were allegedly made against federal agents here this is not a press case the question is whether the district judge in this case abuse her discretion and saying you can have all this information in here but the names of the agents are going to keep redacted for now because we think there's a threat what's wrong with that well because of discretion without is outside the bounds of reason in light of the nature of what the statements were now although that's your idea of a good time but if one takes the opposite approach which is the approach taken by the government and the district courts got it did make a determination and you agree it's an abuse of discretion review the case that i mean i i didn't see even in your brief that you challenge the ability of the court put the affidavits under seal then whether they're released from the seal or whether they're not retaining the filings under seal is abuse of discretion that schreier rock well at some point though and the cases that are cited in the brief and the cases that were acknowledged by the government they the  reasons the rationale for maintaining the identities under seal diminishes well but all i'm trying to do is get you to answer my question not go off on to some of their argument i'm trying to say ok i'm trying to give you credit for what you say trying to do what you've got to do but then it comes to the decision the district court's got to make a decision had in had in its mind the exact evidence that my colleagues have been questioning you  had in its mind all of the cases that you've told me about at that point they have to make a decision and it's their suppression ery decision and i cannot on do that discretion unless it's without foundation i'm having a tough time understanding that i'm just trying to make sure you agree it's abuse of discretion because you didn't cite many case to the opposite for that for the temporary maintaining under seal i would conce that the views of discretion let's go let's go a little further why isn't this moot where you the guys that argued this under thick in the trial court i was but i didn't and they didn't you request that the search warrant documents disclosed in their entirety or alternatively that the government disclose a limited redaction version of the documents that's correct and isn't that exactly what the court did it didn't it take your alternative request and when you requested in the alternative why is this not moot it's not moot why isn't it moot you request an alternative in the court  the awful as i remember being in your shoes of course i remember being down there in the trial and making these kind of requests one way or another i was always representing somebody who was being accused of something very terrible and they were suing him for malpractise or something else but when i gave an alternative to the court the court took and i was pretty stuck and i'm understanding why are you not stuck because of the passage of time has eliminated the roses for maintaining it i asked him time is not as eliminated if you allow that to be the case and they took it then you've got to say not capable of repetition but capable of are of you i have to look at that or i have to talk about voluntary says sation does not apply or whatever but i can find in those exceptions a there otherwise it's moot with respect to the moon yes we raised that again we weren't did not have an opportunity to do further briefing after the after the court after this was submitted it was simply came down with the court dismissing after the government had knowledge that there had been a release of the partial affidavit and that's why we brought the did you make a motion we did did you do anything to try to object to what the discord did yes i believe it  again i look through the record and i'm trying to see what you did because it seems to me that i could avoid all of this by saying they gave me what they wanted we made the record i believe reflects we made additional motion and we saw that request i believe there's a new trial motion i maybe i i believe i made neutral motions i'm all right my and in the heat of the moment my brain is going blank as the specifics of why my procedure and the lower court but all of that happened we get we understand that but we're what we need to understand here though is our current situation and i join my colleague in wondering at this point on what basis can you proceed forward you've got what you requested in your alternative the only issue open is the issue of the disclosure of the names not sure why even need those at this point but the reality is the district judge determined there was a danger not going to change that is not an abuse of discretion is it i believe based on the found on the record that was objected to and there is we did make our objections to i know you made your objection i'm just saying that's not an abuse of discretion by the district judge you have reviewed the record based on what each of us has pointed out terms of the cutout in terms of the pizza and the people standing out there and so on may determination that that was a threat under the circumstances the prudent thing to do was to keep the names there you seem to have agreed with that as my colleague has pointed out why is this not moot what else could you ask it other than what you asked for well i do believe that we renewed it and requested the entirety of the the un redacted that that is in the record i believe that you're going to find that it's it is there and the reason that your honor you asked why we need it and we had also requested judicial notice of the first case had been filed the case that where the temporary restraining order was requested in march of twenty fourteen which was granted and that that case is still pending it's been amended and there's a bit of ins action now based on the the the misstatements the about the other third case but let's get to that other case i think your time is is used now so we'll hear from the government and then we can proceed with the second case how we thank you i want to thank you very much alternative for a limited redacted version of the search warrant documents and that was the motion and seal right yes your honor and response the united states provided the plaintiff with essentially what he was asking for which a limited redacted version of the search warrant as a result there's no live case or controversy for this court to review and the appeal should be denied as moot have the names of the agents been disclosed and ar bivins case they have not your honor as has the plaintiff issued written discovery or taken depositions directed at identifying the agents interesting that your honor last night the plaintiffs filed a motion with the district court in areas one for emergency discovery of the names at issue in this appeal so that's where it lies in that case  but he has not yet received them but is essentially working on it the only potential issue that is even conceivably not moot would be the question of whether the redactions went too far or whether they were different than what the defendant wanted he did file a motion for a new trial about a week after the court dismissed it as moot but as your honour's discuss that that that decision has to be reviewed for abuse of discretion and there's no question that the district courts conclusions were  not implausible or in not illogical given the the various pizzas web sites and and other potential threats against i want to find out more about the website i read what the what i thought was in the record at the first hearing the parties discussed the essentially the internet coverage of the raid it wasn't specifically lycurgus and posting those on the internet it was more the sort of the internet stir that had been caused by this and that on on certain blogs again not related to like irgun there were specific listings of the prosecutor and the judge's name and as a result of e r seventy three plaintiffs even filed a declaration outlining his efforts to contact those blogs and have them essentially take down the information about his case because even if it was hard i think it could have a district judge in her discretion have taken into account existence of the blog information even if it wasn't put there by like kurgan in terms of her analysis of whether there was a threat to these agents could the disregard have gone online and then no no no what i mean is the district court had before her the cut out the pizza incident and knew that there was information online we now know i know now that it was not placed there by like kurgan but could she have taken what a third party placed online into account in determining whether there was a threat to the agents yes it was a drug that the atmosphere the environment in which this occurred yes the findings she made was that the feeling was necessary to protect not just the safety but the privacy of the agents and that finding necessarily depends on the overall internet coverage of the individuals specific names involved in the first hearing so that alone but in combination with the piece incident in the cutout that this was certainly a plausible decision for the district court to order the name sealed i mean let me ask a couple questions i think you're an events for them but they were in my mind as i came down here  it's my understanding that the they were having a hearing on the motion to unseal and the government put an affidavit in that said we're going on seal in the future and so frankly they put off the hearing as my understanding and then they government gave them a copy of the affidavit with the officers names removed right correct at that point then we had another hearing and it was on august twenty first and the district court denied the motion said it was moot because they got what they wanted least one of the alternatives saying that's of some worry to me and i guess i don't understand they filed something called a motion for new trial as i understand it this was just a motion for reconsideration of the district court's denial honor i think it's my understanding is that there was only one hearing that the parties filed briefing the court held a hearing said i'm taking it all under submission and ordered supplemental briefing a few weeks later the united states then turned over the search warrant with the redactions and the court then issued an order that the entire thing was moot and then about a week after that is when the motion for new trial was filed and what they were really seeking in this new trial was just reconsideration of the district court's decision on the motion done seal yes what they were essentially moving the goalposts and now saying that the trying to argue that the reactions were not  enough understood and then the court denied that after in another in and then wanted attorneys fees as well remember a judgment never a consent decree never a settlement agreement we've got all of you know all the procedural stuff is right now in front of me i've asked for all of it if there's anything else i need to know about i just wanted you to know your honor it's there was there was no final judgment and it's our position that the catalyst theory that they're relying on has been the directly over rule by the supreme court and in any event  the united states position in sealing the affidavits was substantially justified even if there had been an order happy to answer any questions yeah i was wondering if you could if you could give your thoughts on counsel's argument that the sending of the bitter litigation with the a t f the idea that after a search warrant sending a pizza to a specific name of an agent involved in the search was done and good fun i think is is not a reasonable interpretation and i think the district certainly within its discretion and treating it as a potential threat as the court has any further questions not believe so thank you counsel so we thank both of you on this first case first the first cases submitted