IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN D. ASHCROFT, Attorney General,
APPELLEES’ MOTION TO RECONSIDER
In accordance with Circuit Rule 27-10, defendants/appellees submit the following
Motion to Reconsider the Appellate Commissioner’s Denial of the Government’s motion
to file materials and an opposing brief with this Court under seal, for in camera and ex
parte review. The Government’s motion was originally filed on September 2, 2004 and
the Appellate Commissioner’s order denying the motion was filed on September 10,
2004.1 Because the Commissioner’s order rests entirely on an incorrect legal
assumption about the merits of plaintiff’s appeal, the September 10 order should be
reconsidered and the Government’s September 2 motion should be granted.
1 This motion for reconsideration is timely because it is filed within 14 days of the
Commissioner’s order. See Circuit Rule 27-10(a).
In this case, plaintiff alleges the existence of a security directive issued by the
Federal Government relating to airline security procedures, and he challenges the
constitutionality of that directive. In order to protect air travel security, a
federal statute and accompanying regulations prohibit defendants from disclosing any
such directive in open court, to plaintiff, or to plaintiff’s counsel. See 49 U.S.C.
§ 114(s)(1)(C); 49 C.F.R. §§ 1520.5(b)(1)(i), (b)(2)(i), 1520.9(a)(1), 1544.103(b)(4). In
light of this statute and accompanying regulations, and for reasons set forth in its motion
filed on September 2, 2004, the Government moved this Court to permit federal
defendants to file materials and an opposing brief under seal, for in camera and ex
parte review (w