In re: THE SEARCH OF: ARES AMOR, 206/208 N. FREEMAN ST., OCEANSIDE v. Bureau of Alcohol, Tobacco, Firearms and Explosives

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: THE SEARCH OF: ARES AMOR,
206/208 N. FREEMAN ST., OCEANSIDE;
et al.,
______________________________
LYCURGAN, INC., DBA Ares Armor,
Petitioner-Appellant,
v.
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES,
Respondent-Appellee.
No. 14-56550
D.C. No.
3:14-cv-01424-JLS-BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted April 6, 2017
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN, District
Judge. **
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In March 2014, Respondent-Appellee Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) executed a search warrant on the premises of Petitioner-
Appellant Lycurgan, Inc. (Lycurgan). Lycurgan now appeals from the district
court’s orders denying as moot Lycurgan’s motion to unseal the search warrant
affidavit and denying Lycurgan’s request for attorney’s fees under the Equal
Access to Justice Act (EAJA). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
1. The district court did not err in dismissing as moot Lycurgan’s initial
motion to unseal the search warrant documents. “The basic question in
determining mootness is whether there is a present controversy as to which
effective relief can be granted.” See Feldman v. Bomar, 518 F.3d 637, 642 (9th
Cir. 2008) (quotation marks omitted). Rather than requesting both an entirely
disclosed version of the warrant documents, and a redacted version, Lycurgan
expressly requested these forms of relief as alternatives. Therefore, when the ATF
subsequently provided the requested documents, with only the agents’ names
redacted, Lycurgan received exactly the relief it sought. See Franklin v. Murphy,
745 F.2d 1221, 1230 (9th Cir. 1984) (holding plaintiff’s request for injunctive
relief moot, where plaintiff received the desired relief prior to court order);
Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 315 (9th Cir. 1974)
(same).

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2. Moreover, the district court did not err in rejecting Lycurgan’s arguments
(in its Rule 59(a) Motion for New Trial or Further Action on the Judgment)
regarding exceptions to mootness. Lycurgan first contends that the motion to
unseal is not moot because the ATF’s practice of subjecting businesses to
unconstitutional searches based on sealed affidavits is “capable of repetition, yet
evading review.” Feldman, 518 F.3d at 644 (quotation marks omitted). This
argument fails because Lycurgan cannot show a reasonable probability that it will
personally be subject to such a search in the future. See Sample v. Johnson, 771
F.2d 1335, 1339 (9th Cir. 1985) (stating that the exception applies “only in
exceptional situations” where a plaintiff can demonstrate that “he will again be
subject to the same injury”). In addition, the “voluntary cessation” exception does
not apply. Having unsealed the affidavit, the relevant question is whether the ATF
will elect to seal that precise affidavit once again in the future. On that score, it is
“absolutely clear” that the ATF will not because the content is already public.
Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (quoting Friends of the
Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
3. The district court did not abuse its discretion by denying (under
Lycurgan’s motion for further action on the judgment) the request to unseal the
names of the ATF agents contained in the search warrant affidavit. See United
States v. Shryock, 342 F.3d 948, 983 (9th Cir. 2003) (“[W]e review for an abuse of

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discretion the district court’s decision to retain filings under seal.”). To start,
Lycurgan contends that it has a pre-indictment Fourth Amendment right to
examine the search warrant affidavit, even if it was filed under seal. We need not
decide that issue because, assuming the right exists, Lycurgan concedes that it
would be qualified, and the ATF met its burden to show a compelling
governmental interest in keeping the names of the agents under seal.
The record reflects that (1) Lycurgan employees created a life-size
cardboard cutout of the lead ATF agent and mounted it at the store; (2) the full
names of the ATF agents, prosecutor, and judge appeared temporarily on various
websites, some of which implied or encouraged violence against the government;
and (3) Lycurgan employees ordered a pizza and sent it to an ATF agent who had
participated in the search. In light of this evidence, the district court did not abuse
its discretion in recognizing a compelling interest in protecting the “safety and
privacy” of the agents. See United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc) (holding that a district court abuses its discretion only if its
decision is illogical, implausible, or factually unsupported). Further, there was no
less restrictive means available to safeguard that interest given that the names were
the only words in the affidavit that remained under seal. See United States v. Bus.
of Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of
Billings, Mont., 658 F.3d 1188, 1194, 1195 n.5 (9th Cir. 2011) (noting that, even

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where there is a right of access to warrant materials, “courts have recognized
several concerns that may call for redaction”).
4. The district court did not abuse its discretion by denying Lycurgan’s
motion for attorney’s fees under the EAJA. First, Lycurgan was not a “prevailing
party.” 28 U.S.C. § 2412(d)(1)(A). “[A] ‘prevailing party’ under the EAJA must
be one who has gained by judgment or consent decree a ‘material alteration of the
legal relationship of the parties.’” Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th
Cir. 2002) (quoting Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of
Health and Human Res., 532 U.S. 598, 604 (2001)). Here, Lycurgan did not
obtain either a judgment on the merits or a favorable consent decree. It therefore
cannot be considered a “prevailing party” for purposes of the EAJA.
Second, the government’s position was “substantially justified” because it
had a “reasonable basis both in law and fact.” See Tobeler v. Colvin, 749 F.3d 830,
832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013));
28 U.S.C. § 2412(d)(1)(A). As to the former, the lone circuit court to consider
whether there is a pre-indictment Fourth Amendment right to access a sealed
search warrant affidavit concluded that there is not. See In re EyeCare Physicians
of Am., 100 F.3d 514, 517 (7th Cir. 1996). Moreover, we held in a related context
that the First Amendment does not require that a search warrant affidavit be
unsealed prior to the issuance of an indictment. See Times Mirror Co. v. United

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States, 873 F.2d 1210, 1221 (9th Cir. 1989). As to the latter, the government was
factually justified in temporarily sealing the affidavit because there was an ongoing
criminal investigation. It also appropriately sealed the names of the ATF agents
because the agents plausibly feared retaliation.
AFFIRMED.

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