[00:00:02] Speaker ?: of the United States Election Assistance Commission at EL. [00:01:10] Speaker 02: Chief Sharland and may it please the court, my name is Larry Joseph. [00:01:14] Speaker 02: I'm here for Eagle Form Education Legal Defense Fund, a movement for limited purpose intervention below that we were denied. [00:01:23] Speaker 02: The underlying case involves voting rights or voting power between the state and the federal government. [00:01:30] Speaker 02: Who gets to decide who gets to vote, essentially. [00:01:36] Speaker 02: So it's an important underlying case, but we're a tangent, which raises important First Amendment cases. [00:01:43] Speaker 02: I'm sorry, First Amendment issues that go to self-government. [00:01:49] Speaker 02: The dispute, I'd like to sort of imagine a very simple target with a large red bullseye, a white circle around that. [00:02:05] Speaker 02: And that's where the dispute will be. [00:02:07] Speaker 02: And then there's a blue. [00:02:08] Speaker 02: We're going to a department store? [00:02:11] Speaker 02: No, the outer circle. [00:02:12] Speaker 02: That's what I imagine when I see that target. [00:02:14] Speaker 02: Yeah. [00:02:15] Speaker 02: I was going to say dark part. [00:02:16] Speaker 02: Anyway, and the outer circle is blue. [00:02:21] Speaker 02: So it's the RF insignia. [00:02:23] Speaker 02: And so blue is irrelevant. [00:02:25] Speaker 02: Those are things that are not in any way going to be court records. [00:02:32] Speaker 02: red is things that the court actually relied on and then the white area is where the dispute largely lies here. [00:02:40] Speaker 02: I should have laid some more background, I'm sorry. [00:02:42] Speaker 02: So there was a deposition that one of the defendant interveners wanted to bring in this suit. [00:02:51] Speaker 02: The government opposed it based on certain privileges to sort of move that along because we were [00:02:57] Speaker 02: Actually, my client wasn't involved then. [00:02:59] Speaker 02: They were working on an expeditious motion for preliminary injunction. [00:03:05] Speaker 02: So the court allowed the parties by consent to enter a protective order and said, we'll get back to that later. [00:03:12] Speaker 02: And so some material was kept from the public, which normally, presumptively, would have a First Amendment right of access and a common law right of access. [00:03:24] Speaker 02: So my client moved to intervene to unseal the record, which had now been sealed for some number, more than a year I think, under the National Children's Center line of cases for limited purpose intervention to unseal the record, tangential to the main case. [00:03:43] Speaker 02: The district judge [00:03:47] Speaker 02: Our motion was fully briefed two years past. [00:03:51] Speaker 02: We filed a – I think it was a motion for a status report or something along those lines just to try and find out what was happening if we could. [00:03:58] Speaker 02: And we were quickly then met with a short denial, citing that the existing interveners adequately – merits interveners in the underlying voting rights case. [00:04:12] Speaker 02: adequately represented our interest and that the records we were seeking to unseal weren't court records. [00:04:18] Speaker 02: Now, I, of course, have not seen these. [00:04:20] Speaker 02: I don't really know, I suppose, what's there, to be honest. [00:04:24] Speaker 02: I know it's the deposition of a person, but I don't know fully what's there. [00:04:30] Speaker 03: Can I ask you to address our jurisdiction? [00:04:32] Speaker 03: Because we have a couple of cases that say denial of permissive intervention by itself is not appealable. [00:04:43] Speaker 02: The National EEOC versus National Children's Law Center, I believe, makes an exception for this. [00:04:50] Speaker 02: It calls it a break. [00:04:51] Speaker 03: It didn't make an exception. [00:04:52] Speaker 03: I just didn't talk about it. [00:04:53] Speaker 02: What's that? [00:04:53] Speaker 03: I just didn't talk about it. [00:04:54] Speaker 03: So the issue might not have been raised there, but the government flags it in its brief here that there's a jurisdictional problem. [00:05:01] Speaker 03: We've had the Endangered Species Act and the NRAV Items litigation cases where both of which we said we don't have jurisdiction over [00:05:12] Speaker 02: I don't recall that I responded to that in the reply brief and so I hope we haven't waived it. [00:05:18] Speaker 02: If I could file something in response but I'm taken by surprise. [00:05:21] Speaker 02: I apologize. [00:05:23] Speaker 02: May I file something then to respond to that or is that? [00:05:29] Speaker 01: Why don't we wait until after our, if we hear the case then we'll decide whether we want more information. [00:05:37] Speaker 02: Fair enough. [00:05:38] Speaker 02: So going back to the target. [00:05:42] Speaker 02: The district judge basically said that only things in the red center were things that he actually relied on, were court records. [00:05:53] Speaker 02: Chief Judge Garland's MetLife decision about the Better Markets case, I think, rebutted that. [00:06:03] Speaker 02: at the very least he's wrong about that. [00:06:06] Speaker 02: It might not be wrong enough to matter because you don't review his text or decision, you review his holding. [00:06:12] Speaker 02: So there's an open question as to what in that white zone is a not relied on but not irrelevant enough to qualify as a court record. [00:06:23] Speaker 02: One of the defendant interveners in this case made an admission of sorts that the [00:06:31] Speaker 02: he reckoned that the judge could decide the case without going into these sealed materials. [00:06:38] Speaker 02: But he did cite them. [00:06:41] Speaker 02: And so I think could is necessary but not sufficient to sort of if we're going to subdivide the white zone or push some of it into the blue or the red. [00:06:49] Speaker 02: Well, not the red. [00:06:50] Speaker 02: I'm sorry. [00:06:51] Speaker 02: It might get kicked out. [00:06:52] Speaker 02: So just the fact you could decide a case without relying on it doesn't mean that it's not relevant. [00:06:59] Speaker 02: And I think that the test of relevance, in fact, the government [00:07:01] Speaker 02: doesn't seem to disagree with us, they say in one of their headings that it's properly before the court and relevant. [00:07:08] Speaker 02: We agree with that, although we might quibble with the government about what properly means in that construct. [00:07:13] Speaker 03: But the... So what exactly is your test? [00:07:16] Speaker 03: Can you articulate your test for me? [00:07:19] Speaker 03: Or what counts as a court record? [00:07:20] Speaker 02: It can't be... It's something that could... I'm sorry. [00:07:23] Speaker 03: It can't be everything that someone files. [00:07:25] Speaker 03: Absolutely not. [00:07:27] Speaker 03: Correct. [00:07:27] Speaker 03: We know that from... Right. [00:07:28] Speaker 02: So for example, if you have a, I think it's called a springing appeal, you move to intervene and then you have another argument you make, and that was based on new evidence hypothetically, and your intervention is denied, the court never gets to that. [00:07:40] Speaker 02: Or if there's a late appeal, you move for leave to appeal late, and then you have other things to say. [00:07:45] Speaker 02: If you're denied at that threshold, so that stuff that's chopped off, [00:07:50] Speaker 02: by the court just not being able to reach it because of some threshold failing. [00:07:54] Speaker 01: Is that right? [00:07:54] Speaker 01: So imagine we have thousands of amicus briefs filed in this court all the time, which we do. [00:08:01] Speaker 01: And sometimes we deny them. [00:08:03] Speaker 01: Would you say that the amicus briefs are no longer court records, that people aren't entitled to see amicus briefs that we did not accept? [00:08:11] Speaker 02: I think if you could have. [00:08:13] Speaker 02: I mean, if you're willfully ignoring arguments that are clearly true, and the amicus certainly believes you are, [00:08:20] Speaker 02: Now, if you say it's late, then I suppose maybe the answer is yes. [00:08:24] Speaker 02: I would maybe agree with that. [00:08:25] Speaker 01: But if you just deny leave... And we can refuse to allow the public to see them. [00:08:32] Speaker 01: Is that the idea? [00:08:33] Speaker 01: Any amicus brief filed in this court that we don't accept, we can refuse the public to see it. [00:08:41] Speaker 01: You don't actually think that, so you don't really need to defend that. [00:08:44] Speaker 01: OK, sure enough. [00:08:45] Speaker 01: Thank you. [00:08:47] Speaker 01: The government may have to defend that, but you don't. [00:08:49] Speaker 02: Take notes. [00:08:52] Speaker 02: So I guess our position would be, if it's relevant, if the court could have relied on it. [00:08:58] Speaker 02: So for example, here was a preliminary injunction case, the prior appeal here that had sealed appendix, the public interest prong of the four-part test for preliminary injunction. [00:09:06] Speaker 02: We think there's some sort of underhandedness in DOJ's and the agency defendant's handling of an earlier case in which they expressly relied in this case in district court. [00:09:17] Speaker 02: So it's sort of like a fruit of a poisonous tree sort of situation. [00:09:21] Speaker 02: They effectively misled a series of courts, and then they relied on their victory here. [00:09:28] Speaker 02: is something that you could take into account in the public interest, I think, in whether or not a preliminary injunction would be allowed here. [00:09:35] Speaker 02: So it could have been reached. [00:09:37] Speaker 03: And the defendant and intervener... I'm sorry, is that your argument that was in your reply brief about, like, the bad faith sanctions? [00:09:47] Speaker 03: I didn't see anything in your opening brief about them misleading anybody or [00:09:54] Speaker 03: Right, I think what... Fruit of a poisonous tree or anything like that, I'm a bit confused. [00:09:59] Speaker 02: That was an analogy here, but it was in our brief below, briefs below, and it was, we didn't, we thought the better market case or MetLife case was perhaps better for us. [00:10:10] Speaker 03: Raise any such argument in your opening brief. [00:10:15] Speaker 02: No, I don't think we did. [00:10:16] Speaker 02: It was a rebuttal for the arguments that they raised. [00:10:21] Speaker 02: But we certainly raised it below. [00:10:26] Speaker 02: And I'm actually running out of time. [00:10:27] Speaker 02: Okay, we can save ourselves. [00:10:29] Speaker ?: Thank you. [00:10:46] Speaker 04: May it please the court, Carolyn Lopez on behalf of the government. [00:10:50] Speaker 04: This case represents the inverse of MetLife. [00:10:53] Speaker 04: So the key question on whether something is a judicial record to test is whether the public would need to see the underlying record to understand a decision that the court has made. [00:11:02] Speaker 04: So in MetLife, this court made clear that where something, the sealed material is part of the administrative record on which the decision had to be based and went to a claim that was actually resolved. [00:11:13] Speaker 01: Do you think MetLife only applies to administrative law cases? [00:11:16] Speaker 04: No, Your Honor, but what we take MetLife to mean in the posture that was before it. [00:11:26] Speaker 01: It was an administrative law case, but you don't think it meant only that briefs and administrative law cases are records? [00:11:33] Speaker 04: No, Your Honor, what we take MetLife to mean is what it [00:11:38] Speaker 04: says, which is that the purpose of a common law presumption of public access is for the public to be able to understand what did or did not persuade the court. [00:11:49] Speaker 04: But in discussing that, this court emphasized that in an administrative record case, which this is as well, of course where something is in the administrative record, courts have to review it. [00:12:02] Speaker 04: And here, it's exactly the inverse, where something is not in the administrative record in an APA course. [00:12:08] Speaker 04: In an APA case, the court is not supposed to consider it unless there's some sort of motion to supplement the administrative record that's granted. [00:12:16] Speaker 03: But what if we had a party urging us to look at the materials as part of a preliminary injunction appeal? [00:12:22] Speaker 04: Here, of course, at JA 118, Kansas said that conceded to the district court that looking at the materials wasn't relevant. [00:12:32] Speaker 03: It wasn't necessary. [00:12:33] Speaker 03: To us, to us and this court. [00:12:35] Speaker 03: The Public Interest Foundation, footnote one, says the materials, the sealed materials, may well be relevant to the other preliminary injunction elements, and the Foundation submits that a thorough examination of the merits of the other preliminary injunction prongs cannot be complete without review of those materials under seal. [00:12:55] Speaker 03: It urges us then to unseal it. [00:12:58] Speaker 03: So it seems like the issue is whether it shows up in the final opinion. [00:13:03] Speaker 03: You just said what do courts do or do not. [00:13:05] Speaker 03: what does or does not persuade seems to us the arguments were very much to the court to look at those materials as part of its decision making process even if they don't actually end up in the opinion. [00:13:20] Speaker 04: the Ingray Reporters case at 1338, although that is a First Amendment, that's a First Amendment presumption of access in which this court said there's not a First Amendment presumption of access in those circumstances, would apply to the common law presumption of access too, and otherwise it really would be any time a party throws something in front of the court, regardless of whether it's privileged, regardless of whether. [00:13:42] Speaker 01: No, but the court encouraged this. [00:13:43] Speaker 01: The court permitted the depositions to go forward here, right? [00:13:46] Speaker 01: This isn't somebody who took a bunch of slanderous stuff [00:13:50] Speaker 01: or a bunch of information involving a search warrant that wasn't relevant and threw it into record, the district court approved the depositions, isn't that right? [00:14:00] Speaker 04: Yes, Your Honor, but here it's important to recall that all of this happened on an extraordinarily fast track because it was a preliminary injunction. [00:14:08] Speaker 01: Even fast things are judicial records. [00:14:10] Speaker 01: Just because some courts are slow and some courts are fast, that can't possibly define what's a judicial record. [00:14:16] Speaker 04: No, Your Honor, we think in this case where all the district court said is, [00:14:20] Speaker 04: we're talking about a preliminary injunction, we understand that the government has multiple objections to this deposition being taken in the first place. [00:14:28] Speaker 04: And those are that it's not part of the administrative record, so the court shouldn't be considering it as part of its decision making, and also that there are multiple pending privilege objections. [00:14:36] Speaker 01: So if a party files information that's not part of the record with us, for example, which perhaps the government well knows happens quite a lot, and we hold this is not part of the record, [00:14:49] Speaker 01: That part of the briefs are not judicial records either? [00:14:54] Speaker 04: Yes or no would be facts dependent on the reasons. [00:14:59] Speaker 01: I disclose you the facts. [00:15:00] Speaker 04: So here, assuming that your hypothetical is that this court says it's not properly part of the record because it's not part of the administrative record. [00:15:07] Speaker 01: That's right. [00:15:08] Speaker 01: Somebody files a brief and puts in it evidence that the government misbehaved. [00:15:14] Speaker 01: And they file an entire brief on this subject. [00:15:17] Speaker 01: We look at it. [00:15:19] Speaker 01: based on Chenery say, sorry, this is not part of the judicial record. [00:15:23] Speaker 01: This is not part of the reasoning of the agency below. [00:15:27] Speaker 01: So we reject this argument. [00:15:29] Speaker 01: You're not telling me that's not part of it. [00:15:31] Speaker 04: No, Your Honor, if the court says something in its opinion that indicates that it actually considered the evidence, but ultimately found it to be not [00:15:39] Speaker 04: not persuasive, that might be a different case, but here no such court has done that. [00:15:44] Speaker 01: So your brief in this case argues two things, that the sealed documents are not judicial records because they were not considered by any court, and two, that they couldn't have been considered until after resolution of privilege. [00:15:57] Speaker 01: Imagine I'm reading your brief and I agree with the first part, and I say, well, I don't need to read the rest. [00:16:04] Speaker 01: And in my opinion, I say, I didn't need to read the second half of the government's brief. [00:16:08] Speaker 01: Are you saying the second half of the government's brief is not a judicial record? [00:16:12] Speaker 04: No, Your Honor, because what we're discussing is a very narrow rule that prevents perverse incentives for litigants to, in outlier cases like this, try to introduce material that's not relevant, that's really a sideshow. [00:16:31] Speaker 01: to the main litigation that they admit isn't relevant again at JA 118 and to which the government... When you say it's not relevant, this is about the authority of the administrator, whatever the person was called, right? [00:16:46] Speaker 04: Delegated authority, right? [00:16:47] Speaker 04: Yes, Your Honor. [00:16:48] Speaker 04: An issue that this court has not actually ruled on and this court at [00:16:52] Speaker 04: That's not ruled out yet. [00:16:54] Speaker 04: Yes, Your Honor. [00:16:55] Speaker 04: And we're not saying that this would necessarily never be a judicial record. [00:17:00] Speaker 04: It's where there is the interplay between these factors. [00:17:04] Speaker 01: So I understand on remand, the district court remanded to the agency to resolve this question, right? [00:17:10] Speaker 05: Yes, Your Honor. [00:17:11] Speaker 01: And the agency split? [00:17:13] Speaker 05: Yes, Your Honor. [00:17:13] Speaker 01: And it's now pending before the district court. [00:17:15] Speaker 01: Yes, Your Honor. [00:17:15] Speaker 01: The very question we're discussing. [00:17:17] Speaker 05: Yes, Your Honor. [00:17:18] Speaker 01: Well, I really, I find this in a way stunning that something, this will eventually become a judicial record because we know that it is now relevant. [00:17:29] Speaker 01: And yet we have to wait and the public has to wait to see what the arguments were until after we decide the case. [00:17:37] Speaker 04: No, Your Honor, we don't think that it's [00:17:39] Speaker 04: No, Your Honor, it's not currently a judicial record and under this court's, under the logic of this court's case, an in-ray reporter's committee, just because something is pending before a court doesn't make it a judicial record. [00:17:50] Speaker 04: Otherwise, any filing before a decision is made into an ELSAGA to the court. [00:17:54] Speaker 01: I'm sorry. [00:17:54] Speaker 01: Say that again. [00:17:55] Speaker 01: So your position is that filings in the district court are not judicial records until the court rules on them? [00:18:04] Speaker 04: In this court's opinion, in El Saga, this court said, I believe it's either at JA... I know what El Saga said. [00:18:11] Speaker 01: El Saga's about a plea agreement where the only issue was whether the plea agreement should be sealed or not sealed, right? [00:18:20] Speaker 05: Yes, Your Honor. [00:18:21] Speaker 01: That was the only question. [00:18:22] Speaker 01: And we distinguished that in Metropolitan Life. [00:18:24] Speaker 01: So the distinction, Metropolitan Life is the law of the circuit. [00:18:29] Speaker 01: So this is nothing like El Saga. [00:18:33] Speaker 04: Sorry, in which case? [00:18:36] Speaker 01: In metropolitan life. [00:18:38] Speaker 01: we explain that Elseig held that a plea agreement submitted to the court only to allow it to rule on the government's motion to seal was not a judicial record. [00:18:47] Speaker 04: Yes, Your Honor, but in MetLife, this court also said that it's common ground that not all documents filed with courts are judicial records, and that whether something is a judicial record depends on the rule that plays in the adjudicatory process. [00:19:02] Speaker 03: And in InRay Reporters, which was that... But can't that role include things that [00:19:08] Speaker 03: we consider but don't ultimately rule on? [00:19:11] Speaker 03: Surely it can. [00:19:12] Speaker 03: The role it plays in the adjudicatory process. [00:19:15] Speaker 04: So I do want to just emphasize again the narrowness of the rule. [00:19:19] Speaker 03: I just want to get a quick answer to this question. [00:19:22] Speaker 03: That is, the role of adjudicatory process would include issues presented to us that we don't ultimately rule on? [00:19:31] Speaker 03: Yes? [00:19:34] Speaker 04: Yes, Your Honor, it could, but not in cases. [00:19:36] Speaker 04: So the presumption flips where the sealed material could not be properly considered by a court until some sort of ruling has been made, either that the administrative record should be supplemented and addressing the privilege objections, and also where the court was able to, and in fact did, resolve the case on grounds to which [00:20:01] Speaker 03: The entire appeal about supplementing an administrative record. [00:20:06] Speaker 03: Someone says, I lose on the current record, but I win if you look at these additional materials. [00:20:11] Speaker 03: And here's all my arguments as to why you should look at these additional materials. [00:20:15] Speaker 03: And then we issue a decision that says, no, we don't think those things are properly part of the administrative record. [00:20:22] Speaker 03: Are those briefs? [00:20:24] Speaker 04: We think it would depend on the rationale that the court actually, I mean that's of course not what actually happens here, but we do think that it would depend on the rationale that the court gave. [00:20:31] Speaker 04: And if the rationale were simply just this wasn't part of the administrative record, we don't ever need to look at the documents, then you wouldn't need to look at the underlying documents. [00:20:40] Speaker 04: If, however, the court actually indicated. [00:20:42] Speaker 03: I think we very well may have looked at the documents and the process of trying to understand the other parties. [00:20:48] Speaker 03: It can't be that we think this is a very close call. [00:20:52] Speaker 03: Here's all the arguments for including in the record. [00:20:54] Speaker 03: Here's the ones against it. [00:20:55] Speaker 03: They balance out. [00:20:56] Speaker 03: Everything's a judicial record. [00:20:58] Speaker 03: If we come and go, this is an easy case, their arguments fail. [00:21:03] Speaker 03: they're not in the record, there'd be a different status? [00:21:05] Speaker 04: I mean, so in NRAE reporters, this court said, again, it was for purposes of the First Amendment context, but the logic would apply here, that the touchstone of when a public interest applies, and this is at 1338, is the admission of evidence. [00:21:20] Speaker 04: So if this court has already held repeatedly its common ground, [00:21:24] Speaker 04: But not every filing is a judicial record. [00:21:27] Speaker 04: And if the only decision is that, and not because I looked at the underlying material and it's more prejudicial than probative, not something like that where you really do need to understand what the record looked like to understand what the court was doing in this very narrow context. [00:21:45] Speaker 04: No, those wouldn't necessarily be judicial records. [00:21:47] Speaker 03: There's no colorable argument that this stuff should be on the record. [00:21:51] Speaker 03: Is that the distinction you're drawing? [00:21:54] Speaker 03: If there's no colorable argument, then what are you doing lobbing that in here? [00:21:59] Speaker 03: Yes. [00:21:59] Speaker 03: Yes, Your Honor. [00:22:00] Speaker 04: Is that this case? [00:22:03] Speaker 04: Yes, Your Honor. [00:22:05] Speaker 04: I mean, Kansas concedes that the court doesn't need to look at it. [00:22:09] Speaker 04: The district court here at J-45 says that it didn't. [00:22:11] Speaker 04: Public Interest Foundation told this court that we did need to look at it. [00:22:15] Speaker 04: And this court, so the issue only went to one substantive claim. [00:22:19] Speaker 04: And this court, both in the majority and the dissent, so in the majority at page 12 and the dissent at page 16, said, so the majority said that because the case can be resolved on this other claim to which the sealed material is not relevant, we can just assume our UNO the delegation issue. [00:22:35] Speaker 04: And the dissent, although it would have come out the opposite way, said that [00:22:40] Speaker 04: said that it is of no moment whether or whether or not he had the authority to sell it. [00:22:45] Speaker 01: Are the sections of the appellate briefs on the delegation issue not judicial records? [00:22:53] Speaker 04: So the sealed portion of that book, to the extent that it references things that are not properly part of the electric record. [00:22:59] Speaker 01: Well, leave aside whether they're sealed or not for the moment. [00:23:02] Speaker 01: We all agree that regardless of the result in this case, [00:23:06] Speaker 01: Hubbard will still apply, and you'll be able to make an argument about not revealing privileged information. [00:23:12] Speaker 01: I'm talking about your purely legal arguments in the Court of Appeals brief about delegation. [00:23:21] Speaker 04: If there were a purely legal argument that... Yes, purely legal. [00:23:24] Speaker 04: A purely legal argument that did not refer to material that's not properly in the administrative record would be [00:23:32] Speaker 04: would be a judicial record. [00:23:33] Speaker 01: So you're not resting it really at all on the point that the court didn't reach or need to reach it. [00:23:38] Speaker 01: That's not part of your argument. [00:23:41] Speaker 01: You have to drop that totally from your argument. [00:23:43] Speaker 04: No, Your Honor, we think that although we do think that it could be an independent ground for ruling this in this particular case. [00:23:52] Speaker 01: Do you think that would be an independent ground? [00:23:55] Speaker 04: To say that here, but the reason that it's relevant that no court has actually ever decided the issue is because if hypothetically, if there were sort of a counterfactual in which [00:24:09] Speaker 04: the court doesn't make a formal ruling that, yes, I'm going to add this to the administrative record, but goes ahead and reaches the delegation issue and says, on review of everything in the JAE, I decide X, then there is an indication that even though there should have been a formal ruling that this was in the administrative record, the court has indicated that it's actually reviewed it. [00:24:28] Speaker 04: And that might be a different case. [00:24:30] Speaker 01: And so here, the primary- Let me make the hypothetical. [00:24:33] Speaker 01: Just let me state it again. [00:24:34] Speaker 01: The portions of the Court of Appeals briefs that address the delegation issue. [00:24:40] Speaker 01: Are there records or not? [00:24:42] Speaker 01: Leaving aside the sealed part, which say was redacted because that is still subject to a dispute about whether it should be sealed or not. [00:24:51] Speaker 01: The legal arguments about delegation. [00:24:55] Speaker 05: Yes, Your Honor. [00:24:56] Speaker 01: Yes, they are judicial records. [00:24:57] Speaker 05: Yes, Your Honor. [00:24:58] Speaker 01: The fact that they were not considered by the Court of Appeals and were not necessary to the Court of Appeals decision is not an independent ground. [00:25:08] Speaker 04: Yes, that's correct, Your Honor. [00:25:10] Speaker 04: But it's relevant to the question of here, the ordinary presumption where the sealed material goes to things that courts should not consider. [00:25:19] Speaker 04: before making a rule that they are properly admissible, and then there's no, plus there's no reason to believe that the courts actually did it in that narrow circumstance. [00:25:29] Speaker 04: It's not a judicial record. [00:25:30] Speaker 04: Again, we're not saying it could never be a judicial record, depending on what happens in the future, but that it's not currently a judicial record. [00:25:36] Speaker 03: Can I just ask a fact question? [00:25:38] Speaker 03: The deposition that's at issue in this case, normally discovery isn't filed with the district court. [00:25:45] Speaker 03: Was the whole deposition filed with the district court, or are we only talking here about [00:25:49] Speaker 03: on the sealed portions of arguments to the district court in this court. [00:25:53] Speaker 04: Yes, Your Honor, the entire deposition, so the entire substantive portion of the deposition was filed. [00:25:59] Speaker 04: My understanding is that maybe the pages that sort of say this word appears this many times in the pages were excluded, but otherwise my understanding is that the whole deposition was attached. [00:26:08] Speaker 00: I want to ask you an unrelated question. [00:26:12] Speaker 00: The district court also ruled, didn't he, that Eagle Forum's interests were adequately represented by [00:26:20] Speaker 00: other parties like Kansas? [00:26:22] Speaker 04: Yes, Your Honor. [00:26:23] Speaker 00: How do you defend that decision? [00:26:25] Speaker 04: So that, when reading the order, as we argued in our brief, when reading the order in total, so at J45, the district court said, the sole reason that Eagle Forum sought to intervene was to unseal the judicial records. [00:26:39] Speaker 04: The court correctly concluded that these weren't judicial records, and because that was the only relief that was being requested. [00:26:46] Speaker 00: So then if you're wrong, if he's wrong about that, then he's also wrong about the intervention question, right? [00:26:51] Speaker 00: That's correct. [00:26:53] Speaker 00: So that's just one issue. [00:26:54] Speaker 04: There's just one issue. [00:26:55] Speaker 04: Yes, they really, they collapse in this particular posture. [00:26:58] Speaker 03: Can I ask you about jurisdiction? [00:26:59] Speaker 03: Yes. [00:27:00] Speaker 03: So you guys flagged this problem in your brief, but then didn't develop it. [00:27:04] Speaker 03: And so you must have had a theory under which there's jurisdiction in this case. [00:27:07] Speaker 04: Yes, Your Honor. [00:27:09] Speaker 04: So with respect to jurisdiction more broadly, in Ray Porter's report said that because the district court already has jurisdiction over the protective order, there doesn't need to be an independent ground for jurisdiction. [00:27:26] Speaker 04: Yes, Your Honor. [00:27:27] Speaker 04: And then here under, we do think that we agree with EGLE Forum that under this court's case in EEOC versus... Did we address jurisdiction in that case? [00:27:39] Speaker 04: Sorry? [00:27:39] Speaker 04: Did we discuss jurisdiction in that case? [00:27:44] Speaker 04: So this court in that case said that [00:27:50] Speaker 04: said that the proper way for somebody, that permissive intervention was the correct way for somebody. [00:27:58] Speaker 04: to, um, was the correct way for somebody to actually handle this type of request to unseal the records. [00:28:04] Speaker 04: And the district court? [00:28:05] Speaker 04: No, no. [00:28:06] Speaker 04: And also, I mean, and then this court actually took appeal over that. [00:28:11] Speaker 03: We took appeal. [00:28:11] Speaker 03: I know, but there's, I mean, you know as well as I do that unaddressed questions of jurisdiction don't establish the question of jurisdiction. [00:28:19] Speaker 03: And we didn't address our circuit precedent in two cases saying that a permissive intervention [00:28:25] Speaker 03: by itself is not appealable. [00:28:32] Speaker 04: There's a massive circuit conflict on this issue. [00:28:35] Speaker 04: Yes, Your Honor. [00:28:37] Speaker 04: We think that EEOC versus National Children's Law Center settled the premise of whether or not [00:28:47] Speaker 04: you can appeal from a denial of permissive intervention only with respect to this very narrow question of unsealing judicial records. [00:28:55] Speaker 03: Do you know where they said that? [00:28:57] Speaker 03: Where we said that? [00:28:58] Speaker 04: Yeah, sorry. [00:28:59] Speaker 04: Let me just pull up the case so I can give you the pin site. [00:29:10] Speaker 04: So at 1045, [00:29:19] Speaker 04: So at 1045 to 1046 is where this court. [00:29:23] Speaker 03: You can tell me where we're talking about appellate jurisdiction. [00:29:25] Speaker 03: I mean, they're simply saying that this is the way you should go, district court, seek permissive intervention. [00:29:32] Speaker 03: And we'll have a flexible understanding of Rule 24, which is. [00:29:36] Speaker 04: Yes, no, that's right. [00:29:37] Speaker 04: But procedurally what happened in EEOC versus National Children's Center is the same thing that happened here, which is that the district court denied [00:29:46] Speaker 03: the motion to intervene and then this court... No, we wouldn't have the question if the question comes up only when the permissive intervention is denied. [00:29:56] Speaker 03: That was denied in our prior two cases as well where we said there was no jurisdiction. [00:30:01] Speaker 04: I think sometimes the district court has, my understanding is it met like actually the district court granted it. [00:30:08] Speaker 04: It met like that, talking about in-ray vitamins and the... Right, right, right, right. [00:30:12] Speaker 04: So the concern would be that if otherwise it would essentially, if the right way to do this is solely through seeking permissive intervention, and when it's denied, there's no way for this court to have appellate jurisdiction. [00:30:29] Speaker 04: We do think that that would be problematic because it's not a question of you have a choice between doing intervention as a right in which, you know, there may or may not be. [00:30:38] Speaker 03: I suppose they could mandamus because there's old Supreme Court cases saying that there's only jurisdiction if it's an abuse of discretion, which I know collapses merits and jurisdiction, but I guess in theory it could be protected through mandamus. [00:30:50] Speaker 04: Because we think that under this court's precedent or EEOC versus National Children's Center that it is permissible to appeal from the denial, we haven't thought about mandamus as an alternative. [00:31:02] Speaker 01: I was wondering why your favorite case, the Reporters Committee, doesn't resolve this case. [00:31:07] Speaker 01: So in that case, then Judge Scalia said it was part of the collateral order doctrine. [00:31:12] Speaker 01: Now, in that case, there was, which would be a ground for immediate appeal. [00:31:17] Speaker 01: In that case, intervention had been granted, but there was no case with respect to denial of unsealing in the court and the judge in one of his [00:31:30] Speaker 01: fitness phrase, mutatis mutandis, where he goes from one to the other, says that the point is the same. [00:31:39] Speaker 01: The reporters are asking for release. [00:31:42] Speaker 01: They want the release now. [00:31:43] Speaker 01: There's no other way to get it. [00:31:45] Speaker 01: It's separate from the underlying procedures. [00:31:48] Speaker 01: It will not interfere with the underlying procedures, so it fits directly within [00:31:53] Speaker 04: Yes, Your Honor. [00:31:54] Speaker 01: The collateral order. [00:31:55] Speaker 04: Yes, Your Honor, we agree. [00:31:56] Speaker 04: And I apologize if I hadn't previously mentioned in Ray Reporters Committee as talking about the collateral order. [00:32:04] Speaker 04: If there are no further questions, we ask that the court affirm. [00:32:08] Speaker 01: Let me just say, I know I asked you a lot of questions very quickly, but you answered very quickly. [00:32:12] Speaker 01: I appreciate it. [00:32:16] Speaker 02: Go ahead. [00:32:16] Speaker 02: I just have five quick points in two minutes. [00:32:18] Speaker 02: Wonderful. [00:32:19] Speaker 02: So on the in Ray Reporters Committee, [00:32:22] Speaker 02: rules of simple procedure 30F1 where you file in a sealed envelope depositions with the court. [00:32:33] Speaker 02: And then local rules are allowed to accept that, not do that. [00:32:37] Speaker 02: And our, the lower courts, local rule 5.2C [00:32:43] Speaker 02: No, 5.2A says, don't give us that stuff. [00:32:47] Speaker 02: So that case is irrelevant. [00:32:49] Speaker 02: That wasn't materials that were submitted as part of the motions for seeking relief. [00:32:56] Speaker 01: And the only part of these documents you were talking about here are the parts quoted or cited in these briefs, is that right? [00:33:06] Speaker 02: Right, and I think what happened, maybe the whole deposition is relevant. [00:33:09] Speaker 02: I mean, so my colleague said that, you know, everything but the front and the end, the sort [00:33:15] Speaker 02: wrappers, so to speak, got submitted. [00:33:17] Speaker 02: I think that means that everything in the depositions is relevant. [00:33:21] Speaker 02: But they were filed as exhibits, not as a deficit in a sealed envelope. [00:33:26] Speaker 02: Also, the fact that Mr. Kobach made a concession certainly doesn't bind my client. [00:33:32] Speaker 02: It didn't bind the Public Interest Foundation. [00:33:34] Speaker 02: And even what he said, it wasn't a concession, he said that you could get around to the merits without reaching it. [00:33:41] Speaker 02: He didn't say you had to. [00:33:42] Speaker 02: In other words, it wasn't necessarily irrelevant. [00:33:45] Speaker 02: It could be bypassed, but that didn't make it not something that you could rely on. [00:33:50] Speaker 02: So it could have been relied on, and it's a could have been that's relevant as long as an issue's presented. [00:33:58] Speaker 02: In this case, we raised both the First Amendment and the common law right of access. [00:34:04] Speaker 02: I'm not sure what the difference is, to be honest. [00:34:06] Speaker 02: One obviously raises consequential concerns, but in your MetLife case, there was only the one, and here there's both. [00:34:16] Speaker 02: These records were submitted under seal without going through Hubbard. [00:34:21] Speaker 02: Hubbard is a two-way street. [00:34:22] Speaker 02: It's not a lobster trap. [00:34:23] Speaker 02: You can go in easy, but it's hard to get out. [00:34:26] Speaker 02: So the district court misbehaved here, and so that's part of this. [00:34:33] Speaker 01: You agree that if we decide these are judicial records, that doesn't mean the [00:34:39] Speaker 01: documents are released, there has to be a ruling on whether they're privileged. [00:34:43] Speaker 02: Well, yes, Hubbard applies, but it wasn't applied to stick them in. [00:34:49] Speaker 02: I mean, it's not at all clear that these [00:34:52] Speaker 02: We argued in the district court that they are entitled to no privileges. [00:34:56] Speaker 02: We went through all the ones that DOJ cited. [00:35:00] Speaker 02: Let me just make sure I got my, so on the jurisdiction, maybe I was going to ask if I could file some things. [00:35:05] Speaker 02: It seems perhaps that I don't need to. [00:35:06] Speaker 02: Say again, we'll let you know. [00:35:09] Speaker 02: What's that? [00:35:09] Speaker 02: We will let you know. [00:35:10] Speaker 02: Oh, you will. [00:35:10] Speaker 02: Wonderful, thank you. [00:35:17] Speaker 02: And that is, I guess the other problem is, if we didn't have an appeal, it seems to me we could sue the clerk to get access under the First Amendment. [00:35:26] Speaker 02: The clerk is not a judicial officer. [00:35:27] Speaker 02: He's not immune. [00:35:29] Speaker 02: And that would just be worse than what we're trying to do. [00:35:31] Speaker 02: What we tried is under the national... It would certainly be more inefficient. [00:35:35] Speaker 00: Yes. [00:35:37] Speaker 02: If there are no questions, that's all. [00:35:40] Speaker 01: Thank you. [00:35:40] Speaker 01: We'll take the matter under submission. [00:35:41] Speaker 01: Thank you.