1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 1:20-cr-183-RCL

CODY MICHAEL TARNER,

 Defendant.

MEMORANDUM AND ORDER

The defendant, Cody Michael Tarner, seeks release from federal custody and dismissal of 

his indictment for alleged violations of the procedure and timeline established by the Insanity 

Defense Reform Act (IDRA). Because Mr. Tarner is no longer committed for competency 

evaluation or restoration, his motion is moot. Therefore, the Court will DENY Mr. Tarner’s 

motion to dismiss. For the reasons discussed below, the Court will also DENY Mr. Tarner’s 

motion to seal his motion to dismiss, and will DENY the Government’s motion to file a sur-reply. 

In addition, now that Mr. Tarner has given notice of his intention to present an insanity 

defense, the parties agree that the Court should order a psychiatric or psychological examination 

and report of Mr. Tarner. However, they disagree on whether the Court must order Mr. Tarner 

committed to the custody of the Attorney General of the United States for that evaluation. The 

Court concludes that committing Mr. Tarner to the custody of the Attorney General will likely 

result in lengthy delay, and therefore orders that Mr. Tarner be evaluated where he is currently 

housed, the D.C. Correctional Treatment Facility.
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I. BACKGROUND

A. Factual and Procedural Background

The Government alleges that on July 15, 2020, Mr. Tarner approached three government

vehicles parked at the United States Supreme Court, doused them with liquid, and then lit one of 

them ablaze. See Compl., ECF No. 1, at 2. However, the fire spread to Mr. Tarner himself, 

resulting in burns to about 40% of his body. See id. For these events, a grand jury indicted Mr. 

Tarner on one count of Arson, in violation of 18 U.S.C. § 844(i), and one count of Destruction of 

Government Property, in violation of 18 U.S.C. § 1361. See Indictment, ECF No. 6. The 

magistrate judge ordered Mr. Tarner detained pending trial. See ECF No. 5.

1. Mr. Tarner’s Commitment for Competency Evaluation

At a status conference on February 12, 2021, the Court granted defense counsel’s oral 

motion for a competency examination. See ECF No 9, at 1. The Court ordered that Mr. Tarner 

“be committed to the custody of the Attorney General of the United States pursuant to 18 U.S.C. 

§ 4247(b) for a period not to exceed thirty days for placement in a suitable facility for a competency 

examination.” Id. The Court also required the Government to update the Court every ten days on

Mr. Tarner’s placement and his transportation to this facility. Id. at 2.

On April 15, 2021, the Government reported that Mr. Tarner had been transported to the 

Butner Federal Correctional Complex in North Carolina. See ECF No. 14. In a letter filed under 

seal on April 22, 2021 (but dated April 15, 2021) the warden informed the Court that per C.D.C. 

and B.O.P. guidance, when Mr. Tarner arrived he was put in quarantine that would “last 

approximately 21 days.” See ECF No. 15. The warden requested that the 30-day evaluation period 

begin on the date of Mr. Tarner’s release from quarantine and be extended 15 days. See id. At an 

April 22 status conference, the Court granted the request for an extension of time. 
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2. Mr. Tarner’s Commitment for Restoration

Another letter from the warden was filed under seal on July 21, 2021 (but dated June 9, 

2021), along with Mr. Tarner’s competency evaluation. See ECF No. 17. The evaluator found

Mr. Tarner not competent and recommended that he be committed to the custody of the Attorney 

General for restoration to competency. See id. at 13. Mr. Tarner was then transferred to the D.C. 

Jail. Def. Mot. for Immediate Transfer to Butner FMC, ECF No. 18, at 2. 

On August 6, the Court held a status conference. On August 9, the Court issued an order 

in which it, “[a]fter holding a hearing, and with the consent of the Government and defense 

counsel,” adopted the medical opinion in the competency evaluation report and found Mr. Tarner 

not competent. See ECF No. 18, at 1. Pursuant to 18 U.S.C. § 4241(d), the Court ordered Mr. 

Tarner committed to the custody of the Attorney General, to be “hospitalize[d] for treatment in a 

suitable facility ‘for such a reasonable period of time, not to exceed four months, as is necessary 

to determine whether there is a substantial probability that in the foreseeable future he will attain 

the capacity to permit the proceedings to go forward.’” See id. (quoting 18 U.S.C. § 4241(d)(1)). 

From the date of the Court’s Order until November 17, 2021, the Government filed nine status 

reports on Mr. Tarner’s pending transportation and evaluation. 

On November 18, 2021, Mr. Tarner objected to the delay by filing a “Motion for Immediate 

Transfer to Butner FMC.” See ECF No. 18. Until the present motion, this was the only time Mr. 

Tarner objected to the timing of his transport, evaluation, or treatment. Finally, on January 14, 

2022 the Government reported that Mr. Tarner had been transferred to Butner the previous day. 

See ECF No. 31. In May 2022, the warden informed the Court that Mr. Tarner’s restoration 

evaluation was complete. See ECF No. 32-1. Although the attached competency report assessed 

Mr. Tarner to be not competent, the evaluators reported “some improvement in [his] symptoms,” 
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stated that he would likely be restored to competency in the future, and asked for an additional 120 

days to restore Mr. Tarner to competency. See ECF No. 32-1, at 14. The letter and report were 

filed on the Court’s docket on July 8 and on July 29 the Court issued an order granting a 120-day 

treatment period, see July 29 2022 Order, ECF No. 33. It did so pursuant to 18 U.S.C. 

§ 4241(d)(2)(A). That provision authorizes the Attorney General to hospitalize a mentally 

incompetent defendant for treatment in a suitable facility for an additional period of time until 

defendant’s “medical condition is so improved that trial may proceed” if a court finds a “substantial 

probability that within such additional period of time [the defendant] will attain the capacity to 

permit the proceedings to go forward.” 18 U.S.C. § 4241(d)(2)(A).

On November 10, 2022, the warden informed the Court that Mr. Tarner’s competency had 

been restored. See ECF No. 34. On December 5, the parties submitted a joint status report 

requesting that Mr. Tarner be returned to the District of Columbia. See ECF No. 35. On January 

11 the Court held a status conference and on January 23 it issued an order finding Mr. Tarner 

competent. See ECF No. 37. Currently, Mr. Tarner is housed at the D.C. Correctional Treatment 

Facility. Def. Proposed Order, ECF No. 64, at 2.

B. The Present Dispute

On August 22, 2023 Mr. Tarner gave notice of his intention to present an insanity defense 

at trial. See ECF No. 47. On October 2, the Court held a status conference in which it vacated the 

trial date and ordered the parties to submit a proposed scheduling order concerning Mr. Tarner’s 

insanity defense. On October 18, the Government requested that the Court order Mr. Tarner to 

be committed to the custody of the Attorney General for an insanity evaluation pursuant to 18 

U.S.C. § 4242. See Gov. Proposed Order, ECF No. 63. Mr. Tarner filed an opposition, objecting 

only to the commitment of Mr. Tarner to the custody of the Attorney General and instead 
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requesting that he be evaluated at the D.C. Correctional Treatment Facility. See Def. Proposed 

Order. The Government filed a response. See Gov. Response to Def. Proposed Order, ECF No. 

67. Mr. Tarner filed a reply. See Def. Reply to Gov. Response to Def. Proposed Order, ECF No. 

68. 

In addition, on October 20, 2023 Mr. Tarner moved for his release from federal custody 

and dismissal of the indictment for alleged violations of IDRA’s procedures and time limits. See 

MTD, ECF No. 65. He argues that the Government held him at Butner for longer than the 

permitted time for both his initial competency evaluation and his later restoration. See MTD at 

10, 13. He also contends that the Court found him not competent and committed him for 

restoration without holding the “hearing” required by 18 U.S.C. § 4241(a). Specifically, he finds 

fault in the August 6, 2021 status conference. At the status conference, counsel for the Government 

and defense agreed that the Court should adopt the finding of the competency report, which the 

Court later did in an order. Mr. Tarner argues that although he personally “object[ed] to the finding 

of incompetence,” the Court failed to afford him “an opportunity to testify, to present evidence, 

to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at 

the hearing” as provided by Section 4247(d). See MTD at 12. The Government filed a response. 

See Gov. Response to MTD, ECF No. 66. Mr. Tarner filed a reply. See Def. Reply to Gov. 

Response to MTD, ECF No. 69. The Government filed a motion for leave to file a sur-reply. See 

Gov. Mot. for Sur-Reply, ECF 70.

The matters are now ripe for review. 
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II. ANALYSIS

A. Mr. Tarner’s Motion for Release From Custody and Dismissal of the Indictment Is 

Moot

Since Mr. Tarner has already been evaluated, restored to competency, and released from 

competency-related commitment under IDRA, his motion is moot.1 

“Under Article III of the United States Constitution,” a federal court “‘may only adjudicate 

actual, ongoing controversies.’” D.C. v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010) (quoting Honig 

v. Doe, 484 U.S. 305, 317 (1988)). “Under the mootness doctrine, we cannot decide a case if 

‘events have so transpired that the decision will neither presently affect the parties’ rights nor have 

a more-than-speculative chance of affecting them in the future.’” Reid v. Hurwitz, 920 F.3d 828, 

832 (D.C. Cir. 2019) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en 

banc)). Indeed, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the 

outcome of the lawsuit,” at any point during litigation, the action can no longer proceed and must 

be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting 

Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990)). The D.C. Circuit has explained 

that “[t]he party seeking jurisdictional dismissal must establish mootness, while the opposing party 

has the burden to prove that a mootness exception applies.” Reid, 920 F.3d at 832 (citing 

Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)).

In a criminal case, challenges to alleged constitutional violations that occur before trial 

may be mooted by later events. For instance, in United States v. Sanchez-Gomez, the Supreme 

Court recognized that defendants’ challenge to their pretrial detentions was moot because they 

were “no longer in pretrial custody.” See 138 S. Ct. 1532, 1540 (2018); see also United States v. 

1 The Government further argues that “[t]he defendant’s acquiescence in, and failure to object to, specific periods of 

delay in transporting and evaluating the defendant operate to bar his claims here” under doctrines of judicial estoppel 

and waiver or forfeiture, as well as mootness. Gov. Response to MTD at 15. Because the Court concludes that Mr. 

Tarner’s claim is moot, it declines to reach these alternative grounds.
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Young, 428 F. App’x 9, 10 (D.C. Cir. 2011) (“Appellant claims that his pretrial detention violated 

his First, Fifth, Sixth, Eighth, Ninth, and Fifteenth Amendment rights, but appellant has been 

convicted and his pretrial detention has now ended. Consequently, these issues have been rendered 

moot.”); Maydak v. United States, 98 F. App’x 1, 3–4 (D.C. Cir. 2004) (concluding that the 

appellant’s claims for injunctive and declaratory relief concerning his treatment in BOP custody 

“are moot as he has been released from BOP custody”); United States v. Askia, 893 F.3d 1110, 

1122 (8th Cir. 2018) (holding that the defendant’s challenge to an alleged constitutional violation 

at the pretrial detention hearing was moot because the issue “will have no direct consequence on 

[the defendant] now” since “[h]is pretrial detention has concluded”). Similarly, in Murphy v. Hunt, 

the Supreme Court concluded that the defendant’s “claim to pretrial bail was moot once he was 

convicted.” 455 U.S. 478, 481–82 (1982). The Court explained that “[t]he question was no longer 

live because even a favorable decision on it would not have entitled Hunt to bail” and “Hunt no 

longer had a legally cognizable interest in the result in this case” since “[h]e had not prayed for 

damages nor had he sought to represent a class of pretrial detainees.” Id. 

This general principle applies to the competency context as well. Courts of Appeal 

including the D.C. Circuit have held that a commitment order entered under § 4241(d) is 

immediately appealable precisely because by the time of a final judgment, it would be moot and 

thus effectively unreviewable. See United States v. Weissberger, 951 F.2d 392, 395–97 (D.C. Cir. 

1991) (“If [the defendant] is declared competent and the trial proceeds, post-confinement review 

will provide no relief for the loss of liberty associated with the competency evaluation.”); United 

States v. Gold, 790 F.2d 235, 239 (2d Cir. 1986) (“If the defendant were eventually found 

competent to stand trial and were convicted, the commitment order could be reviewed on appeal 

from his conviction; but the matter of the relief to be granted if the order were found to have been 
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erroneous would be moot.”); United States v. Friedman, 366 F.3d 975, 979 (9th Cir. 2004) 

(“Several of our sister circuits have found that a commitment order entered pursuant to § 4241(d), 

like the one at issue here, would be effectively unreviewable on appeal from a final judgment.”) 

(citing United States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003); United States v. Filippi, 211 F.3d 

649, 650-51 (1st Cir. 2000); United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir. 1997) 

(en banc); United States v. Davis, 93 F.3d 1286, 1289 (6th Cir. 1996); Weissberger, 951 F.2d at

396; Gold, 790 F.2d at 239).

So, just as a defendant’s challenge to pretrial detention is moot once the defendant is “no 

longer in pretrial custody,” see Sanchez-Gomez, 138 S. Ct. at 1540, a defendant’s challenge to his 

competency-related commitment is moot once the defendant is no longer committed. See United 

States v. Calderon-Chavez, No. EP-22-CR-01664-DCG-1, 2023 WL 5345582, at *1, 13 (W.D. 

Tex. Aug. 18, 2023) (finding a due process violation when nine months had passed since 

commitment order under 18 U.S.C. § 4241(d)(1) without hospitalization, but concluding that if the 

defendant is evaluated in compliance with the district court’s order, the due process challenge will 

become moot); United States v. Hatter, No. 14-CR-1811-GPC, 2015 WL 1511015, at *2 (S.D. 

Cal. Mar. 19, 2015) (“Hatter was transferred to Butner . . . and is currently receiving restorative 

treatment. As such, the Court finds that any due process challenge based upon any delay while 

Hatter awaited restorative treatment is moot.”); United States v. Berard, No. 22-CR-088-01-LM, 

2023 WL 3178793, at *8 (D.N.H. May 1, 2023) (“Berard has already been hospitalized. Therefore, 

the government has provided the remedy — hospitalization — that courts most commonly order 

when the government has failed to timely transport a committed defendant to a hospital. And 

neither this court nor Berard has been able to identify any case where a court has dismissed an 

indictment for lack of a timely transport after the government has admitted the defendant to a 
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suitable facility.”); United States v. Vanarsdale, No. 22-10103-JWB, 2023 WL 5094011, at *3 (D. 

Kan. Aug. 9, 2023) (“[T]he remedy routinely issued by courts is an order requiring the government 

to admit the defendant to a suitable facility within a specified time period . . . . Such a remedy is 

not necessary here as [the d]efendant has already been transferred to the facility.” (citations 

omitted)).

Here, the Government has met its burden of showing that Mr. Tarner’s claim is moot, as 

he is no longer hospitalized for a competency evaluation or restoration, or awaiting transport for 

either. Nor is he seeking damages or to represent a class. See Murphy, 455 U.S. at 481–82. He 

thus “no longer ha[s] a legally cognizable interest” in the outcome of his motion, id., and the Court 

is powerless to act on a merely academic question. At this stage, it is “impossible for a court to 

grant any effectual relief whatever” to Mr. Tarner. See Chafin v. Chafin, 568 U.S. 165, 172 (2013) 

(quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)). Even if he is 

correct that IDRA was violated, the Court could not provide relief by ordering his immediate 

hospitalization, since he has already been hospitalized, or by revisiting its finding of incompetency, 

since he has already been restored to competency. 

Although Mr. Tarner bears the burden of establishing an exception to the mootness 

doctrine, Reid, 920 F.3d at 832, he has made no attempt to argue that an exception applies. His 

motion for release and dismissal of the indictment must therefore be denied as moot. 

B. The Court Will Order Mr. Tarner to Be Evaluated at the D.C. Correctional 

Treatment Facility

Applying the plain meaning of 18 U.S.C. § 4247(b), the Court must order an examination 

of Mr. Tarner, but it has discretion to order him committed to the custody of the Attorney General 

or another entity. Given that committing Mr. Tarner to the Attorney General presents a significant 
10

risk of delay that might jeopardize his mental health, the Court will not order him committed to 

the Attorney General’s custody.

18 U.S.C. § 4242(a) provides that upon the filing of a notice of insanity defense, “the court, 

upon motion of the attorney for the Government, shall order that a psychiatric or psychological 

examination of the defendant be conducted, and that a psychiatric or psychological report be filed 

with the court, pursuant to the provisions of section 4247(b) and (c).” 18 U.S.C. § 4242(a). Such 

an examination is meant to establish whether at the “time of the commission of the acts constituting 

the offense,” the defendant was “insane,” § 4247(c)(4)(B), meaning that at such time “the 

defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and 

quality or the wrongfulness of his acts,” see § 17. Section 4247(b) provides that pursuant to the 

Court’s order under Section 4242, “the court may commit the person to be examined for a 

reasonable period . . . but not to exceed forty-five days, to the custody of the Attorney General for 

placement in a suitable facility.” 18 U.S.C. § 4247(b). The parties agree that the Court must order 

an examination, but they disagree about whether the Court is required to commit the defendant to 

the custody of the Attorney General or whether instead the Court may order an evaluation

elsewhere.

Mr. Tarner’s reading of the statute is correct. The Fifth Circuit has considered this precise 

question and held that “[r]ead in context, the statutory language commands the district court to 

order an examination but permits it either to commit the defendant to the custody of the Attorney 

General for that purpose or to order that the examination be made in some other manner.” See In 

re Newchurch, 807 F.2d 404, 410 (5th Cir. 1986); see also United States v. McKown, 930 F.3d 

721, 729 (5th Cir. 2019) (reaffirming the holding of Newchurch). This conclusion follows from 

Section 4247(b)’s “use of the permissive word ‘may’ as to the manner of the 
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examination . . . compared to the use of the mandatory word, ‘shall,’ in directing that an 

examination of some kind be made,” Newchurch, 807 F.2d at 410. The plain meaning of Section 

4247(b) is that the Court must order an examination, and it may order commitment to the custody 

of the Attorney General. But the Government has dismissed Mr. Tarner’s argument without 

offering a single reason to depart from the plain meaning of the statutory text. See Gov. Response 

to Def. Proposed Order at 3. It instead offers ipse dixit. See id. (stating “the defendant’s arguments 

are without merit and border on a fundamental misunderstanding of applicable legal principles and 

constitutional mandates outlined supra” without providing any reasons for why that is so).

The Court therefore has discretion to commit Mr. Tarner to either the custody of the Bureau 

of Prisons or some other entity. When the choice is between commitment to the custody of the 

Attorney General and examination on an outpatient basis, several circuits have held that a court 

should not lightly choose the former. See Newchurch, 807 F.2d at 411 (“[B]efore committing a 

defendant, the court [must] determine, on the basis of evidence submitted by the government, 

subject to cross examination, and to rebuttal by the defendant, that the government cannot 

adequately prepare for trial on the insanity issue by having the defendant examined as an 

outpatient.”); United States v. Deters, 143 F.3d 577, 584 (10th Cir. 1998) (“In ordering 

commitment pursuant to 18 U.S.C. § 4241, a ‘district court should make findings of fact 

concerning the need for commitment’ . . . .” (quoting Newchurch, 807 F.2d at 412); United States 

v. Neal, 679 F.3d 737, 742 (8th Cir. 2012) (remanding because of the district court’s failure to 

“require the government to present evidence to justify the inpatient commitment, seriously 

consider the defendant’s alternative request for an outpatient examination, or make findings of fact 

concerning the need for commitment”). Indeed, “courts have ordered outpatient evaluations where

the government has failed to articulate sufficiently compelling reasons to order a custodial 
12

examination.” United States v. McDonald, No. CRIM. 09-656-01 SDW, 2012 WL 4659242, at *2 

(D.N.J. Oct. 1, 2012) (collecting cases). In this case, the choice is between commitment to the 

custody of the Attorney General or examination at the Correctional Treatment Facility in 

Washington, D.C. But the principle remains that in issuing an order under Sections 4242 and 

4247, the court should “fetter[] [the defendant’s] freedom in the least restrictive manner.” See 

Neal, 679 F.3d at 742.

The tortuous history of this case indicates that if the Court committed Mr. Tarner to the 

custody of the Attorney General, months of needless delay would follow. When the Court recommitted Mr. Tarner to the custody of the Attorney General for restoration, he languished for 

five months awaiting his ride to FMC Butner. See ECF 18; ECF No. 30. Now that Mr. Tarner has 

been restored to competency, he warns another lengthy delay may jeopardize his mental health to 

the point that he becomes once again incompetent to stand trial. See Def. Proposed Order at 3. 

Indeed, Mr. Tarner’s competency evaluator “strongly recommended that once restored to 

competency, court proceedings are scheduled closely to his restoration” because of a “concern that 

Mr. Tarner may decompensate if his return to court is prolonged in holdover facilities.” See Tarner 

Forensic Evaluation, ECF No. 17, at 15. Against this risk of delay and a return to incompetency, 

the Government does not offer any reason to commit Mr. Tarner to the custody of the Attorney 

General. For instance, the Government does not suggest that Mr. Tarner cannot be evaluated at 

the D.C. Correctional Treatment Facility or that FMC Butner would be better in any way.

The Court will not roll the dice on Mr. Tarner’s mental health when it does not have to. It 

will therefore order that Mr. Tarner receive psychiatric or psychological examination to be 

conducted at the D.C. Correctional Treatment Facility.
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C. The Court Will Deny Mr. Tarner’s Motion to Seal

Mr. Tarner filed his motion for release and dismissal under seal “because it references 

numerous documents pertaining to Mr. Tarner’s competency and mental health that remain sealed 

on the docket, as well as the transcripts from sealed proceedings pertaining thereto.” MTD at 1 

n.1. The Government objects on the basis that neither Mr. Tarner’s motion nor the Government’s 

response contains personal identifying information or confidential mental health information. 

Gov. Response to MTD at 2. 

The D.C. Circuit has explained that the “common-law right of public access to judicial 

records ‘is a fundamental element of the rule of law, important to maintaining the integrity and 

legitimacy of an independent Judicial Branch.’” In re Leopold to Unseal Certain Elec. 

Surveillance Applications & Ords., 964 F.3d 1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc. 

v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017)). There is therefore “a 

‘strong presumption in favor of public access to judicial proceedings,’ including judicial records.” 

Leopold, 964 F.3d at 1127 (quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980)). 

In an appropriate case, “that presumption may be outweighed by competing interests.” Id.

But while Mr. Tarner’s motion generally refers to the fact that he has been treated for 

mental health issues, it does not include any confidential information about his treatment or

specific condition. And the fact that Mr. Tarner was found incompetent and later restored to 

competency is already public, as the Court has issued unsealed orders finding Mr. Tarner 

incompetent, ECF No. 18, and then restored to competency, ECF No. 37. Accordingly, the Court 

will deny Mr. Tarner leave to file his motion under seal. 
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D. The Court Will Not Consider the Government’s Sur-Reply

The Government’s purported sur-reply addresses Mr. Tarner’s arguments concerning 

whether the Government violated IDRA and, if so, what should be the appropriate remedy. See 

Gov. Sur-Reply, ECF No. 70-2. The Court will deny the Government’s motion for leave to file 

the sur-reply because it addresses the merits of a matter that is moot, and would therefore not be 

helpful to the Court.

Although sur-replies are generally disfavored, “[t]he decision to grant or deny leave is 

‘committed to the sound discretion of the Court.’” Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 

85 (D.D.C. 2014) (quoting Lu v. Lezell, 45 F.Supp.3d 86, 91 (D.D.C. 2014)). “A district court 

should consider ‘whether the movant’s reply in fact raises arguments or issues for the first time, 

whether the nonmovant’s proposed surreply would be helpful to the resolution of the pending 

motion, and whether the movant would be unduly prejudiced were leave to be granted.’” Doe, 69 

F. Supp. 3d at 85 (quoting Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012)).

Because Mr. Tarner’s motion is moot, the Court will not reach the merits of his IDRA 

argument, nor will it determine the appropriate remedy for an IDRA violation. The Government’s 

sur-reply therefore would not ‘be helpful to the resolution of the pending motion.” Id. 

Accordingly, the Court will not consider the Government’s sur-reply.

III. CONCLUSION

For the foregoing reasons: 

It is hereby ORDERED that the Defendant Mr. Tarner’s Motion [ECF No. 65] to Seal his 

Motion for Release from Custody and Dismissal of the Indictment is DENIED, and it is further

ORDERED that the Defendant Mr. Tarner’s Motion [ECF No. 65] for Release from 

Custody and Dismissal of the Indictment is DENIED, and it is further 
15

ORDERED that the Government’s Motion [ECF No. 70] for Leave to File a Sur-Reply is 

DENIED.

As the Defendant gave notice on August 22, 2023, pursuant to Federal Rule of Criminal 

Procedure 12.2, that he intends to present a defense of insanity in this case: 

It is ORDERED that pursuant to 18 U.S.C. § 4242, a psychiatric or psychological 

examination be conducted by a licensed or certified psychiatrist or psychologist, and it is further 

ORDERED that the government shall ensure such an evaluation occurs within twenty days

of this order, and it is further

ORDERED that a psychiatric or psychological report be filed with the Court, pursuant to 

the provisions of 18 U.S.C. § 4247(b) and (c), and it is further 

ORDERED that the examination shall be conducted at the Correctional Treatment Facility 

in Washington, D.C., and it is further 

ORDERED that the examination shall determine pursuant to 18 U.S.C. § 17 whether at 

the “time of the commission of the acts constituting the offense” —July 15, 2020 — “the 

defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and 

quality or the wrongfulness of his acts,” and it is further

ORDERED that the examination shall be conducted by a licensed or certified psychiatrist 

and/or psychologist, or more than one such examiner, and it is further 

ORDERED that pursuant to § 4247(c), the report shall be prepared by the examiner and 

shall be filed under seal with the Court with copies provided to counsel for the defendant and to 

the attorney for the Government. Pursuant to § 4247(c), the report shall include: (1) the 

Defendant’s history and present symptoms; (2) a description of the psychiatric, psychological, and 

medical tests that were employed and their results; (3) the examiner’s findings; and (4) the