United States of America v. Comprehensive Drug Testing, Inc.

We must decide whether the United States may retain evidence
it seized from Major League Baseball's drug testing
administrator, and enforce an additional subpoena, as part of
an ongoing grand jury investigation into illegal steroid use by
professional athletes.

I

These three consolidated cases arise from the federal investigation
of the Bay Area Lab Cooperative ("Balco") and its
alleged distribution of illegal steroids to enhance the performance
of professional baseball athletes. The investigation
began in August 2002 and, over the following several years,
produced evidence - including grand jury testimony -
establishing probable cause to believe that at least 10 major
league baseball players received illegal steroids from Balco.

Today we decide the government's appeals from the separate
adverse orders of three different district courts: (1) an order
by Judge Florence-Marie Cooper in the Central District of
California, denying reconsideration of her earlier order requiring
the government to return property seized from Comprehensive
Drug Testing, Inc. in Long Beach, California ("CDT"),1
(2) an order by Judge James Mahan in the District of Nevada,
requiring the government to return property seized from Quest
Diagnostics, Inc. in Las Vegas, Nevada ("Quest"),2 and (3) an
order by Judge Susan Illston in the Northern District of California,
quashing the government's May 6, 2004, subpoenas to
CDT and Quest that related to the grand jury sitting in San
Francisco, California.

A

As part of its investigation into Balco, the government in
November 2003 served a grand jury subpoena on Major
League Baseball ("MLB"),3 seeking drug testing information
for 11 players4 with connections to Balco. One month later,
MLB responded that it had no such information.

The government then reasoned that because CDT5 and Quest6
had tested urine samples from MLB players during 2003,
those entities - rather than MLB - had to possess the samples
and testing records in question. Therefore, the government
issued subpoenas both to CDT and to Quest, seeking drug
testing information for all MLB players. The subpoenas were
returnable on February 5, 2004, but the government extended
that date to March 4, 2004, after CDT and Quest promised not
to destroy or to alter any of the evidence requested.
Despite protracted negotiations, CDT and Quest resisted
producing any of the subpoenaed materials, explaining that
they would fight production of even a single drug test all the
way to the Supreme Court. Following further negotiations, the
government, believing that a narrower subpoena might be
effective, issued new subpoenas on March 3, 2004, seeking
documents related only to eleven7 players with Balco connections.
These new subpoenas were returnable on April 8, 2004.
Two days before the new return date, the Major League
Baseball Players' Association - the union representing athletes
who play for Major League Baseball8 - informed the
government that it intended to file a motion to quash the subpoenas.
The following day, as promised, CDT and the Players
Association filed such a motion in the Northern District of
California before United States District Judge Jeffrey White.

B

After learning of the planned motion to quash, the government
applied on April 7, 2004, for warrants to search CDT's
Long Beach office and Quest's Las Vegas laboratory. The
government expected to find testing evidence at both locations
and knew that the information at CDT would be needed
to obtain all relevant records from Quest, because Quest
stored each testing record by code, not name, and CDT possessed
the information identifying the code(s) that corresponded
to each player in its testing program. Upon a
showing of probable cause,9 Magistrate Judge Jeffrey Johnson
in the Central District of California issued a search warrant
for the CDT office,10 and Magistrate Judge Lawrence Leavitt
in the District of Nevada issued a search warrant for the Quest
laboratory.11 Affidavits submitted to support the warrants
informed both magistrates that the information sought was
already the subject of grand jury subpoenas and that a motion
to quash was expected.12 Contrary to the arguments of the
Players Association and CDT, the government did not premise
its April search warrant affidavits on a claim that the evidence
was in danger of being destroyed.13

The April 7 warrants authorized the seizure of drug testing
records and specimens for ten named Balco-connected players,
as well as "[a]ll manuals, pamphlets, booklets, contracts,
agreements and any other materials detailing or explaining"
CDT's or Quest's "administration of Major League Baseball's
drug testing program."14 The warrants also authorized the
search of computer equipment, computer storage devices, and
11Federal Rule of Criminal Procedure 41(b) authorizes the government
to pursue search warrants in different districts. The rule gives a magistrate
judge the authority "to issue a warrant to search for and seize a person or
property located within the district," "to issue a warrant for a person or
property outside the district if the person or property is located within the
district when the warrant is issued but might move or be moved outside
the district before the warrant is executed," or "in an investigation of
domestic terrorism or international terrorism . . . [to] issue a warrant for
a person or property within or outside that district." Fed. R. Crim. P.
41(b).
- where an on site search would be impracticable - seizure of
either a copy of all data or the computer equipment itself.
"[L]aw enforcement personnel trained in searching and seizing
computer data" (designated "computer personnel") were
responsible for choosing the appropriate course of action to
capture the electronic data sought. If seizure of all data or
equipment was necessary, "appropriately trained personnel"
would review the data, retaining the evidence authorized by
the warrant and designating the remainder for return.
On the morning of April 8, 2004, Special Agent Jeff
Novitzky (the lead case agent) and eleven other federal agents
- including Computer Investigative Specialist Agent Joseph
Abboud - executed the search warrant for CDT's Long Beach
office. Although CDT personnel were initially cooperative,
one of CDT's directors - after speaking with counsel -
informed Agent Novitzky that CDT would not assist federal
officers in locating the evidence they were authorized to seize
and that the agents should "do what they needed to do." When
informed that agents might be forced to seize all computer
equipment for up to sixty days, the director again contacted
counsel, exclaiming that such a seizure would "shut[ ] the
business down."

Throughout the morning and early afternoon, Agent
Novitzky spoke several times with CDT's attorney, David
Bancroft. Bancroft asked Agent Novitzky not to seize anything
while he attempted to work out a beneficial solution
with the United States Attorney's Office in San Francisco.

Later, Bancroft told the agent that CDT had only one hardcopy
document eligible for seizure. Around noon, both Agent
Novitzky and Assistant United States Attorney Jeff Nedrow
spoke with Bancroft and CDT's directors via conference call.

Bancroft emphasized that any help CDT provided should not
be construed to constitute consent and then informed Nedrow
and Agent Novitzky that CDT had two computers on which
agents would find information relevant to the search warrant.

During this conference call, Agent Novitzky learned that
agents had discovered a hard-copy document with names and
identifying numbers for all MLB players, including some of
the ten named Balco players. Agent Novitzky faxed the document,
which was not the "only document eligible for seizure"
to which Bancroft had alluded, to Nedrow for preparation of
another search warrant to seize specimen samples from Quest
based on the identifying numbers. One of CDT's directors
became visibly upset when she noticed the document being
faxed. She left the premises, but when she returned, she
opened a locked drawer and presented agents with a document
that contained drug test results for the ten named Balco
players - the document previously described as the only seizable
hard-copy document on site.15

At 2:35 p.m., a CDT director finally identified a computer
directory containing all of the computer files for CDT's sports
drug testing programs. This directory, labeled "Tracey," contained
numerous subdirectories and hundreds of files. Seeing
this, Agent Abboud recommended copying the entire directory
for off-site analysis, because of the time and intrusiveness
involved in searching the voluminous directory on site.

The warrant had anticipated that such removal might be necessary,
and provided:

If the computer equipment and storage devices
cannot be searched on-site in a reasonable amount of
time, then the computer personnel will determine
whether it is practical to copy the data during the
execution of the search in a reasonable amount of
time without jeopardizing the ability to preserve the
data.

The agents copied the directory and removed the copy for
later review at government offices.16
The search of the CDT facility concluded shortly after 5
p.m., but before he left the premises, Agent Novitzky
reviewed with CDT directors the evidence seized during the
search. The documents seized included a 25-page master list
of all MLB players tested during the 2003 season and a 34-
page list of positive drug test results for eight of the ten
named Balco players, intermingled with positive results for 26
other players.17 Upon returning to his office in San Jose, California,
Agent Novitzky briefly reviewed the contents of the
Tracey directory, identifying five subdirectories related to
MLB. Within these directories, Agent Novitzky identified
files authorized by magistrate judges for seizure, including the
master file of positive drug test results.

During the time in which Agent Novitzky and others were
searching CDT on April 8, 2004, another group of federal
agents had executed simultaneously a separate search warrant
at Quest's laboratory in the District of Nevada. However,
these agents were unable to locate the specimens that the warrant
authorized them to seize, because the search warrant in
the District of Nevada listed the players by name, and the
Quest specimens were identified only by number.
Quest employees informed the searching agents in the District
of Nevada that the records associating the players with
their identifying numbers could be found in files stored by
16The warrant also provided for the circumstances in which "computer
personnel determine it is not practical to perform an on-site search or
make an on-site copy of the data within a reasonable amount of time," and
then allowed "the computer equipment and storage devices [to] be seized
and transported to an appropriate law enforcement laboratory for review."
The agents did not make use of this procedure, however, because Agent
Abboud determined that copying the data was possible.

CDT. Indeed, these records soon were discovered by agents
at CDT and faxed to the agents at Quest.18 With this information,
the agents in the District of Nevada applied for a third
search warrant to seize the relevant items identified by number
as well as by name. Judge Leavitt authorized this third
warrant at 6 p.m. on April 8, 2004, and agents seized from
Quest the then-identifiable Balco players' specimens later that
same night.

C

On April 26, 2004, the Players Association filed motions
under Fed. R. Crim. P. 41(g) (hereinafter "Rule 41(g)")19
seeking return of the property seized.20

Motion To Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property's return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.

On August 19, 2004, Judge Mahan ruled from the bench.
He granted the Rule 41(g) motion brought by the Players
Association in the District of Nevada and ordered the government
to return all specimens seized from Quest and all notes
and memoranda compiled by agents who reviewed the evidence,
other than those pertaining to the ten Balco players
named in the original search warrant.22 He made findings -
without conducting an evidentiary hearing - that "[t]he government
callously disregarded the affected players' constitutional
rights" and that the government unreasonably refused
"to follow the procedures set forth in United States v. Tamura,
694 F.2d 591 (9th Cir. 1982)," with regard to the intermingled
records seized in the Central District of California. Almost six
weeks later, and again without conducting an evidentiary
hearing, Judge Cooper rejected the government's suggestion
that the documents were seizable under the warrant exception
that applies to plain-view evidence of contraband,23 and
granted the Players Association's Rule 41(g) motion in the
Central District of California. The order, which also cited the
government's failure to follow Tamura's procedures, mandated
return to CDT of any evidence seized that was not connected
to the ten players named in the warrant. Judge Cooper
denied the government's motion for reconsideration of this
order on February 9, 2005.

These orders are the subjects of two of the appeals consolidated
here.24

D

The third appeal concerns grand jury subpoenas issued to
Quest and CDT on May 6, 2004, which were to be returned
by June 10, 2004. These subpoenas reached all specimens and
records of positive steroid drug tests for more than 100 MLB
players and were not confined to records pertaining to the ten
Balco players named in the earlier subpoenas.25 The government
also sought search warrants for this larger swath of evidence
on the ground that the April 8 seizures did not provide
all information needed for the investigation.26

Quest complied with the May 6 subpoena, providing the
government with hundreds of pages of documents, but the
government agreed to defer CDT's compliance pending resolution
of the search warrant litigation. On August 31, 2004,
however, the government revoked the indefinite deferral and
instructed CDT to comply with the subpoena by September
14, 2004. The Players Association filed a motion to quash the
subpoenas on September 13, 2004.

II

Before we review the orders granting the Rule 41(g)
motions in the Central District of California and the District
of Nevada, we must decide two jurisdictional issues: whether
the Players Association has standing to challenge the search
and seizure of evidence from Quest and whether the government
timely appealed Judge Cooper's order to return the
materials seized from CDT in the Central District of California.27

A
The government contends that the Players Association
lacks standing to file the Rule 41(g) motion, because it lacked
access, control, and ownership over the records and specimens
seized from Quest. Furthermore, it argues that the Players
Association may not base its interest in the property (the
urine specimens and test results) on the privacy interests of
the individual players.28

[1] An association has standing to sue on behalf of its
members when they would otherwise have independent standing
to sue, the interests sought to be protected are germane to
the organization's purpose, and the claim asserted does not
require the participation of individual members in the lawsuit.
Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988); see also
Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 343
(1977).

[2] We are satisfied that the Players Association satisfies
each prong of this test. First, the Players Association represents
all MLB players, each one of whom could certainly sue
in his own right to seek return of his own drug testing records.
Second, the interests sought to be protected - the players' privacy
interests in their drug testing records - are related to the
organization's sole purpose: to represent the interests of MLB
players. Third, the Players Association sought only the return
of the players' drug testing information and specimens; for
this type of prospective relief, the individual players need not
be parties to the action. See Warth v. Seldin, 422 U.S. 490,
515 (1975) (holding that an association lacked standing where
it sought damages rather than "a declaration, injunction, or
some other form of prospective relief").

[3] We therefore conclude that the Players Association has
standing to assert the Fourth Amendment rights of its members
sufficient to file Rule 41(g) motions seeking return of
seized property in which their members hold privacy interests.

B

[4] The Players Association and CDT contend that the government
failed to appeal in a timely manner Judge Cooper's
order for the return of property. In order to be timely when the
United States, its officer, or its agency is a party, a notice of
appeal must be filed "within 60 days after the judgment or
order appealed from [was] entered." Fed. R. App. P.
4(a)(1)(B).

Judge Cooper's order granting the motion for a return of
property was filed on October 1, 2004. On November 19,
2004, 17 days after receiving notice of the order, the government
filed a "Motion for Reconsideration and Modification of
Court's October 1, 2004 Order Granting Return of Property,"
asking the district court to modify the factual descriptions of
the government's conduct. Judge Cooper reviewed this
motion on the merits under Central District of California
Local Rule 7-18 (governing "Motion[s] for Reconsideration").29
Concluding that "the Government identifie[d] no material
facts that the Court failed to consider," she denied the motion
on February 9, 2005. On March 9, 2005, the government filed
a notice of appeal, challenging both the original Rule 41(g)
order and the denial of the motion for reconsideration.
[5] We have jurisdiction to review the denial of the motion
for reconsideration, because the notice of appeal was filed
within 60 days of that order. See Fed. R. App. P. 4(a)(1)(B).

However, because the notice of appeal was filed more than
five months after the order granting the Rule 41(g) motion,
we can review that underlying order only if the motion for
reconsideration tolled the 60-day period to file an appeal.
[6] Federal Rule of Appellate Procedure 4(a) sets forth specific
rules for calculating the time to file an appeal, and permits
tolling for certain motions for reconsideration made
under the Federal Rules. See Fed. R. App. P. 4(a)(4)(iv), (vi).

A motion for reconsideration may be eligible for tolling even
if it was not filed or considered under the Federal Rules, as
long as the motion could have been filed as a motion "to alter
or amend the judgment under Rule 59" or a motion "for relief
under Rule 60 if the motion is filed no later than 10 days after
the judgment is entered." See Fed. R. App. P. 4(a)(4)(iv), (vi);
Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857,
863 (9th Cir. 2004) (holding that tolling was appropriate
under Fed. R. App. P. 4(a), because a motion for partial
reconsideration that "[did] not state under which rule the
motion was brought" could be construed under Rule 59(e));
see also United States v. Nutri-cology, Inc., 982 F.2d 394, 397
(9th Cir. 1992) ("A motion, however labelled [sic], served
within ten days of the entry of an order that could have been
brought under Rule 59(e) tolls the time for filing a notice of
appeal.").30

The Players Association and CDT argue that the government's
motion cannot be treated as a motion for reconsideration
for tolling purposes, because it was merely "styled as one
for reconsideration," and only "asked the court to water down
its findings" without claiming that "the Court failed to evaluate
the merits." We disagree. The government's motion asked
Judge Cooper to "reconsider and modify several aspects of
[her] order which inaccurately characterize[d] the government's
actions," while expressly clarifying that it was "not
asking for a substantive reconsideration of the Court's ultimate
return order." The motion proposed several specific
deletions of language in the opinion. These requests constitute
a motion for reconsideration and may be treated under the
Federal Rules governing such motions. See Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99
(9th Cir. 2001) ("[A] ‘motion for reconsideration' is treated
as a motion to alter or amend judgment under Federal Rule of
Civil Procedure Rule 59(e) if it is filed within ten days of
entry of judgment . . . . Otherwise, it is treated as a Rule 60(b)
motion for relief from a judgment or order." (citing Nutricology,
982 F.2d at 397)).

[7] In this case, whether the motion could have been filed
under Rule 59(e) or could have been filed under Rule 60(b)
makes no difference. Either way, the government's motion
fails to satisfy the time requirements for tolling under Fed. R.
App. P. 4(a). To be eligible for tolling, the motion had to have
been filed by October 11, 2005 - ten days after the order
granting the Rule 41(g) motion. See Fed. R. App. P. 4(a)(4).
The motion was filed forty-nine days after the order, exceeding
the time period by thirty-nine days.

The government seeks an alternative avenue to obtain tolling
by arguing that it did not receive notice of the order until
November 2, 2004, and therefore that the time limit should
not be calculated from the date of the entry of judgment. We
agree that delays in notice may offer a basis for filing after the
normal deadline, but the Federal Rules expressly state that
parties must request an extension of time to file an appeal in
such circumstances. See Fed. R. App. P. 4(a)(6) (permitting
a district court to reopen the time to file an appeal where a
party did not receive notice);31 see also Fed. R. App. P.
4(a)(5) (allowing a district court to extend the time to file an
appeal upon a showing of excusable neglect or good cause).32
The government never sought an extension of its time to
file a notice of appeal. Instead, in a footnote to its motion for
reconsideration, the government made the strange request for
"leave to file this motion for reconsideration" at a point "outside
of the normal time frame for the filing such motions."

Yet the motion was timely under the local rule on motions for
reconsideration, see C. D. Cal. Local Rule 7-18, as well as
under the applicable federal rule, see Fed. R. Crim. P. 60(b).
Neither the Players Association nor the district court
responded to the government's odd request; they simply
focused on the merits of the motion for reconsideration.
Although we are not certain why the government requested
special cognizance of the motion, we imagine that it may have
feared that the district court otherwise would dismiss the
motion as untimely under Rule 59(e). In any case, the government's
request did not constitute a motion for an extension of
time to file an appeal, because the narrow and precise request
asked the court to review the motion for reconsideration without
any mention of a future filing, and never invoked any
local or federal rule allowing time to extend the time to file
an appeal.33

The government seeks to evade the conclusion that its
notice of appeal was too late by arguing that the Players Association
waived the right to raise a timeliness objection by first
raising such claim in its petition for rehearing. Basing its
argument on the Supreme Court's decision in Eberhart v.
United States, 546 U.S. 12 (2005), and on our decision in
United States v. Sadler, 480 F.3d 932 (9th Cir. 2007), the government
argues that the relevant tolling provisions of Fed. R.
App. P. 4(a) are nonjurisdictional and that the Players Association
forfeited any argument that they were not satisfied.

In Eberhart, the Supreme Court addressed the question of
what time limitations are jurisdictional. Acknowledging that
its prior decision in United States v. Robinson, 361 U.S. 220
(1960), "ha[d] created some confusion because of its observation
that ‘courts have uniformly held that the taking of an
appeal within the prescribed time is mandatory and jurisdictional,'
" the Court distinguished "nonjurisdictional claimprocessing
rules" from rules that "deprive federal courts of
subject-matter jurisdiction." 546 U.S. at 16. The Court
explained that only the former could be forfeited. See id. at 19
(holding that the "Court of Appeals should . . . have proceeded
to the merits" of a Fed. R. Crim. P. 33 motion based
on a court-imposed rule, because "where the Government
failed to raise a defense of untimeliness until after the District
Court had reached the merits, it forfeited that defense").

[8] Whether a federal rule establishing a time limitation
imposes a jurisdictional rule depends on whether the rule
derives from a statute. See Kontrick v. Ryan, 540 U.S. 443,
452 (2004) (holding that "statutory provisions . . . contain[-
ing] built-in time constraints" create jurisdictional limits but
that jurisdiction is not affected by "Court prescribed ‘rules of
practice and procedure' " (citation omitted)); Sadler, 480 F.3d
at 937 ("Rules provisions governing timeliness that do not
implement congressionally mandated ‘built-in time constraints'
are therefore properly considered nonjurisdictional
limitations, subject to forfeiture." (quoting Kontrick, 540 U.S.
at 453).

In Sadler, we applied this distinction to Fed. R. App. P. 4.
We concluded that "the timeliness dictates of Rule 4(b) are
forfeitable, because Rule 4(b) is a nonjurisdictional claimprocessing
rule." 480 F.3d at 940 (emphasis omitted). We
contrasted the mandates of Fed. R. App. P. 4(a): "Congress
has specifically limited our jurisdiction to hear civil appeals
at 28 U.S.C. § 2107(a), which codifies the same time constraints
on the filing of civil appeals (but only civil appeals)
that exist in Rule 4(a)." Id. at 937 (footnote omitted).

[9] The government seeks to benefit from the distinction
between jurisdictional and forfeitable claims under Fed. R.
App. P. 4 by arguing that the Rule 41(g) motion should be
treated under the criminal rule, Fed. R. App. P. 4(b), because
the motion sought a return of property used in a criminal investigation.

41(g) motion is "treated as [a] civil equitable proceeding[ ]."
Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993).
The proper rule for considering civil appeals from the disposition
of a Rule 41(g) motion is thus Fed. R. App. P. 4(a).

Our dicta in Sadler states that the timing requirements of
Fed. R. App. P. 4(a) are jurisdictional and that claims under
that rule are not forfeited. See 480 F.3d at 937. The Supreme
Court recently addressed this issue. In Bowles v. Russell, 127
S.Ct. 2360 (2007), the Court ruled that Fed. R. App. P.
4(a)(6), which allows a court to grant a 14-day extension to
file an appeal, established a jurisdictional requirement. Id. at
2366. Explaining that "Congress specifically limited the
amount of time by which district courts can extend the noticeof-
appeal period in § 2107(c), that limitation is more than a
simple ‘claim-processing rule' " and therefore the petitioner
could not rely on it "to excuse his lack of compliance with the
statute's time limitations." Id.

[10] Bowles does not specifically discuss Fed. R. App. P.
4(a)(4), the tolling provision relevant here. The government
argues that "Rule 4(a) does not incorporate a statutory time
limit in its provision of tolling for Rule 59(e) or Rule 60
motions" and therefore that any failure to comply with the
rule should be immunized against belated attack. However,
although Fed. R. App. P. 4(a)(4) does not contain language
from 28 U.S.C. § 2107, which lacks a tolling provision, the
Supreme Court's decision in Bowles suggests that the same
characterization applies: "Today we make clear that the
timely filing of a notice of appeal in a civil case is a jurisdictional
requirement." Id.

[11] And even if Bowles did not settle the matter with
respect to Fed. R. App. P. 4(a)(4),35 we could not consider the
35An argument can be made on this score, as the advisory committee's
note to Fed. R. App. P. 4(a)(4) reveals that this provision was created by
the Court and amended in light of developing caselaw. While the advisory
underlying order granting the Rule 41(g) motion. In order to
accept the government's argument, we would have to grant
the jurisdictional benefit of tolling while denying the tolling
rule's jurisdictional significance. We cannot defeat logic or
text in this manner. If Fed. R. App. P. 4(a)(4) is jurisdictional,
the government's motion does not qualify for tolling because
it was filed outside the time frame specified in that rule. See
Fed. R. App. P. 4(a)(4)(iv), (vi) (permitting tolling for such
motions only if they are filed within 10 days of entry of judgment).

Bowles, Slip Op. at 8. Under either interpretation of Fed. R.
App. P. 4(a)(4), the government's notice of appeal was
untimely as to Judge Cooper's underlying order granting the
Rule 41(g) motion and must be dismissed for lack of jurisdiction.

III

Having thus disposed of the two preliminary matters of
standing and jurisdiction, we turn to the merits of Judge Cooper's
order denying the motion for reconsideration in the Central
District of California. We review such orders for an abuse
of discretion. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d
1097, 1100 (9th Cir. 2004) ("We review the denial of a
motion for reconsideration for abuse of discretion." (citation
omitted)); see also United States v. Washington, 98 F.3d
1159, 1163 (9th Cir. 1996) ("This court reviews a district
court's denial of a Rule 60(b) motion for an abuse of discretion.").

If a district court premises such denial upon a legal
determination, the legal issue must be reviewed de novo.
Smith, 358 F.3d at 1100 (citations omitted) ("Whether such a
denial rests on an inaccurate view of the law and is therefore
an abuse of discretion requires us to review the underlying
legal determination de novo."); see also Sw. Voter Registration
Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc) (per curiam) ("The district court's interpretation
of the underlying legal principles, however, is subject to
de novo review and a district court abuses its discretion when
it makes an error of law.").

The government confined its motion for reconsideration in
this case to factual matters: "While the government respectfully
disagrees with the Court's conclusion that movants are
entitled to a return of property as a matter of law, the govern-
ment emphasizes that it does not herein request reconsideration
of the Court's core order requiring the return of the items
seized . . . ." Instead, the motion asked the court only to "reconsider
and modify several aspects of this order which inaccurately
characterize the government's conduct in this case."