good morning your honour's may it please the court i'm veronica rosman with the federal public defender on behalf of mr blake and this appeal challenges eat district court's decision to keep mr ba one thing that i find a little frustrating about this case is looking at the district court record no one ever asked judge knew for to unseal that record that asked him to strike it and the test different for striking her and ceiling and there was never any argument to judge new for that this was a ceiling issue that brought in the common law presumption and so how do you respond to that well your honor the request in the district court was to remove the sealed supplement one way of understanding that certainly is a request to strike but really  the substance of the request here was that the presence of the sealed document caused mr bacon a couple of problems one was the presence of the the ceiling itself so striking it from the docket would remove the word sealed presumably but also because the document was sealed mr bacon could not access it or use the information in it to disclose the truth about his non cooperation so it certainly could have been framed a more explicitly as a request to unseal or more explicitly as a request to strike what it was presented to the court as a request to remove the sealed supplement well there was a motion to strike in the district court there was a motion to remove the seal supplement that's that's essential and i think that it is a semantic distinction because really i think what this court is getting at is the preservation question that if we did other the words common law right of access in the district or is the issue preserved and if the court finds that the issue is not preserved we think that there are several reasons to find that it is preserved here the two being that mr bacon made a request of the district court the district court denied his request that is the subject of this appeal so it's not like a brand new issue of where but we're playing error here aren't we i mean all of these arguments now that been made briefing pertained to it shut because we satisfy the requirements for plane air and i'd like to say to start that that player is properly invoked in this case as an appellate matter as well we assumed in the opening brief in good faith that we had a reason back to judge mchugh's question did the district court treat this as a motion to strike a motion to seal what was the district court's response to their request well the district court's response was to not remove the sealed supplement from the dock you know but in its ruling wasn't its discussion geared to and looking at sealing it was indeed it we know that it was because the rule that it relied on the only law that s and that's the only thing that the court relied on in this case to make a decision and if we were at a motion to strike versus a motion to seal either my either issue would be abuse of discretion standard of review  or any there is a difference does this matter we don't think the standard of reviews dispositive because the law is well settled here but the standard of review for making a decision about whether to c e o or strike is an abuse of discretion standard but implicit within that is if there's a legal mistake if the court uses the wrong legal standard then the review is to nova so that's why there's sort of a bit of a conflation when it comes to what the standard as we do satisfy all four elements of plane air here  air is that the court was all the ceiling issue by relying soley on its local rule without reference to the balancing inquiry required under the common law right of access doctrine it assumed that local will have and dash one was the only source of law that applied  it automatically required snowing and there was no case specific analysis and in done in this case indeed the district court's adjudication of the issue referenced the opposite of case specific facts issues  preservations not so good for us for preservation but the discussion of the legal principles is the most robust discussion that i've seen recently of this court cites all of the applicable cases into what pertaining to the presumption of access yes that the common law right of access certainly the common law right of access is not an absolute right the interest can be overcome when there are counter veiling interests that heavily outweigh the presumption the public to know and here we're talking about an individual does the individual take on the cloak of the public here well you sort feels like a standing things sometimes it does it does although the the way i think the court should understand it is it's an interest balancing analysis mr bacon invoked the request at his request to remove the sealed supplement from the docket invoked the district court's obligation to consider the issue under the presumption of access rules which require a balancing test so the balancing is a balancing of interests on one side you have the presumptive right of the public to access judicial records on the other side you have the government's interest and here the government's interest it asserts is in the integrity of the local rules and in protecting coopera and certainly the interest in cooperator safety that the government advances is i missed on this idea of treating all dockets the same and that idea falls apart when not all dockets are treated the same and there's no longer the case they experimented with it was it was experimented with and discussed and vetted with the eye toward making a national a federal rule on this and that was rejected and the reason why one of the reasons why was it's going to raise constitutional and common law right of access problems and so the notion that the government's interest in cooperator safety i'm standing here as a federal defender i certainly appreciate the laudable goal of protecting coop ors but the value of judicial transparency should not be sacrificed for a goal whose achievability is dubious in the universe that we live in and so just risk getting back to your point about where does mr bacon's interest fall he's the one he is a party but his interests are relevant to the balancing inquiry here let me interject when looking at whether these this error was plame we have a rule that was adopted through congressional authority and we have other instances where for example federal rule of criminal procedure forty one point one  says that you redacted certain information that identifies people we we redact victim child victims names victims of sexual assau we file him under seal for a period of time i mean there are all kinds of rules that don't do a case by case balancing that we routinely allow to violate the common law rule of access public access and it seems to me that where we have a rule in order for you to show that this error was plain you need more than the common right of access because it does a yield to  committee process of notice and comment that are nationally implemented and here we have a local rule where one judicial district has decided to essentially employ a docket disguised practice and treat the information about cooperation in a way that references the interests of cooperators by giving misleading information about non cooperators so the rules that you identify are on our our our federal rules they're not local rules moreover time of them are local government sites the eastern district of virginia and that they they seal off social security actions i mean that's not national federal it's a local but that local rule seems to be consistent with the national role here there is no national rule by which to assess the local pool there's no national benchmark and the reason why there's no national benchmark is because the  capcom committee concluded that creating a federal rule in this area would create constitutional and federal common law right of access problems just one more point in response to your question your honor and that is that even in the situations where you just identified where the presumption is secrecy not openness you still can address to the court in its discretion a case by case argument for perhaps not invoking that rule plane air i mean i'm trying to get you sort of the points you made on plane air one is you're suggesting that the fact that there's a local rule is not doesn't it doesn't help a or any because it's not controlling on a national level and  other is that it that the context doesn't matter the fact that this is an individual essentially asserting public rights also doesn't matter in plain air analysis that's correct can you point to any case law in terms of what you know we could look to th law this is a judicial record that should be presumptively open in fact it is where there is in play a blanket sealing policy in a local district which is very different from how ceiling decisions are made they're supposed to be case by case individual eyes not permanent so they have a very sort of temporary specific quality to them and your honour's just i want like this to say they're made of my time but just very briefly we do satisfy the rd and th promise here and the only good thing about plain error in this case is that it highlights the th prong that openness is truly one of the cornerstones of the american judicial system that this court's job is not to take a position on should we protect cooperator should we not it's to take a you on the rule of law and the rule of law in this case is the presumption of openness and i want to challenge you for a minute on the rd prong because if we did the balancing on your client now you've got the sealed records that they can't get to but you now have a docket full of motions from your client to open that record and in those documents that are public indicating he did not cooperate with that change the balance here it would not your honor because there is this this also sort of relates to perhaps questions of standing or mootness under the rd prong he needs to show a reasonable probability that but for the error claimed the result of the proceeding would be different  the fact that there's all of the stuff in the open now doesn't undermine just the shipbuilding anyway and the fact that all of the stuff is in the open now is actually the animating reason it's a reason to support works access it's a reason that undermines the government's interest in secrecy that's how the courts should understand it it's one of the factors that in this case undermines the interest in secrecy so if you prevail here what what would you like to see a curry man do the district court district court for further proceedings so that the court can assess the sealing question under the correct legal standard thank you thank there's various rules and statutes in our brief in which congress and the rules committee have set aside certain kinds of information so that they're going to be categorically sealed or redacted and i think the importance of that list and there could have been more but i think the importance about list  this it's a recognition of those rule makers it's recognition by those rule makers there are certain kinds of information that are so categorically sensitive that we're not going to require an individual district court to engage in a case specific analysis before ordering them to be sealed just use any of those examples if a party in a criminal case files a motion or pleading that includes a minor victim's name do we really want the district court having to engage in a case specific analysis before ordering that district court but are we talking there about federal rules are we talking about local rules here we're talking about a local that's true and so then the question would be whether the difference is there huge difference i think there's a difference a push back a little bit on the huge part of it  i think there is a difference but i don't think it's a difference that matters here and the reason it doesn't matter here is there's two reasons one the local districts are specifically empowered by congress to make rules regarding the practice before their courts this that applies a presumption of closure which is contrary to the law we don't think it is contrail i mean if you get to that sort of that the nd question which is whether this is justifiable under the tests it's very justifiable under the law the test as set forth in a number of cases is whether the interests favoring closure outweigh or heavily outweigh the interests of the public can access the information and there isn't that require a case by case determination and we don't have that here we have the district court saying you know this is a good thing for you because we the committee has looked at this and we see the general good of this idea we gyration those thoughts but it has nothing to and this is where the two issues come someone circular reason that the district court gives here for and for sealing this information is because of the local rule and the local rules justified by concerns that the district court refers to whether the reasons advanced by the party seeking sealing information outweigh or heavily outweigh even the interest in the public in accessing the information and so so long as the district court here can point to sufficient justification for sealing this information categorically in our view is that it can rely on the rule and it doesn't have to engage in a case of sufficient alice in every instance it can just say this is our rule it's official unjustified we're going to do time is it is it appropriate to look at whether because it's a local rule unama national rule it really can't it can't perform in the way that is hoped meaning that it's appropriate to look at it because this is a balancing and nixon speaks it is a balancing the other cases because of his ability but here the district court didn't look at the district court just said you know the defendants trying to make their argument in the district court said w this rule and i'm going to follow the rule i've had that is what it said i think it goes a step beyond that if you want to that portion of the transcript at the sentencing that the district court specifically refers to the national studies that were underway it says on the record why it's doing this w consensus on it even without a national in our answer is yes i would certainly agree that it would be better it would be more effective if this were adopted nationwide i mean the interest in closure in terms of protecting cooperate hers they would be more pronounced if this were nationwide but the question in front of you is not whether this is the best rule the question in front of you is whether this is permissible and the way that i've come to think of this is a very this argument is you simply have something of a spectrum here on the one hand you public's interest in access but it would benefit the corporate or system or you could have something in between and the different districts have gone in different directions on this and so the question in front of you under man and cart and nixon and all these cases is nation what it but it has to get down to this defendant doesn't it this case by case requirement how else will become this presumption you have to have weighing you have to have the real facts at issue here right and to just put this general gloss is just trust us it's good for you because we're doing this nationally and we have a global idea that's a positive idea that protects cooperators i mean his that's not enough is that we think it is enough i think there's two components to your spirit question one none of the cases cited from this quarter for the supreme court have held that this presumption has to apply even in the face of a binding categorical so if you were national impact and then work my way down it's true that it would be better for if it were nationwide but it doesn't have to be nationwide there's evidence even within this record that shows that even on a case by case basis that this is effective on some level we've cited on page fifty one of our brief to the f c c supplemental report the f c c supplemental report which was issued in two thousand and sixteen reported a survey done of district court judges and that survey this is the report quote results suggest that districts adopting steps to protect property and information often seen lower rates of harm than those that do not and quote districts that adopt a policy and is referring to a uniform policy see less harm than those that do not so even if this is just done on a district by district basis there is some evidence that suggests that this has an impact a positive impact on operator safety and so so that would be our starting point on on the nationwide question but then there's another interest which adds on top of that which is this isn't just a function of cooperate or safety versus non cooperative safety there's also the systemic component as well which is that if you if you create a system that protects cooperators you're going to make it easier for a person to cooperate and that's a pronounced public good the cooperation system has benefits and help solve it helps solve crimes it helps prevent future crimes thereby preventing the creation of future crime victims and so if you if you have a system that not only protects cooperate years and again the data suggests that it does but it also makes it easier for the cooperation system to function effectively and if you come back to the test this is really my response to your question just briscoe if you come back to the test which is information can be sealed even under the cases it can be sealed if the if the reasons for doing so outweigh the public interest and there is evidence here that shows that want to protect squatters and to it enables a functioning cooperate or system that's enough i mean there are cases that  permitted the sealing the information if you permits you information nixon from it's the unit information and so there's enough here for the district court to look at this and say on this spectrum here's our solution and there's reason to think it's effective and so then this comes back to this question this is the sort of chicken and egg part of this argument can it do it by a uniform rule and the answer is yes you can do it by uniform rule because no supreme court case has said that it can't well is that a plane error are human and that would fold so if we disagreed with hume we thought there was air here your position is any error was not plain yes and why when or because there's got nixon saying case by case supreme court case saying that a local rule can overcome in this in this context i'm not aware of the the the presumption in favor of opening in keeping the records open i'm not aware of a case that's wasn't that's really what the pla it's obvious that he establishes what the presumption is and he says it's plain it's plain air for a for the courts to adopt a local rule that turns that presumption on its head there's no authority for that right which is that if you if you're assessing obviousness you're looking at at the cases and you're looking at how the systems work and there is a there's a broad scale understanding in the wall that there are some kinds of information that are categorically sealed despite the presumption despite the common laws by st minute the  whole list of statutes and rules and so if a district court is looking at this and preserved objection and saying can i do this can i enforce this rule and then it sees this large number of other circumstances in which courts are required to do this sort of thing the answer would be it's not obvious that i can't the other thing that we would point to there is what the supreme court did with vs ours we cited this in our brief this is the julian decision the supreme court in julian flips the presumption to use your phrase judgments flips the presumption on its head and it does it does so by judicial action it says this kind of information is so categorically sensitive that that ordinary presumption is we're going to reverse it in the party that wants it to be unsealed has to overcome that the information  a judicial exception here and now we have a local rule except that that applies and right but the slide in a blank sorry except of the argument that the defendant is making here is a common argument and so he's having to say he has to convince you this is up on plane or he has to convince you that the common law for bids a district court from adopting and or following a local rule and our point is if the supreme court has already fought the presumption by case law and of congress and the rule makers have already recognized the wanderlust circumstances that can also look the presumption why would it be obvious that it is a local district court can't do this to under its congressionally delegated authority particularly where the reasons for categorically stealing this information are consistent with the reasons for the p s r as being confidential and particularly where the unique reasons for sealing it's information almost depend on the introduced strict uniformity i mean that this is really a unique circumstance because that system sort of rises or falls based on it being followed uniformly within the district and so well and that's only one district and there are many in these united states i mean we did not have uniformity across the nation on this issue and as you know the bus pulls up to the penitentiary every morning and moves people out to different penitentiaries all across the country so what happens in this district really i mean there's a lot of other districts at play and for uniformity to matter it has to be literally uniform absolutely and it's not my red light just yet to my c and as long as there's reason to think that this is going to help and there is then we think that the common law doesn't forbid this thank you thank you for your argument this morning thank you both