United States v. Comprehensive Drug Testing, Inc. (513 F.3d 1085, 2008)

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge THOMAS.

ORDER AND SUPERSEDING

OPINION

ORDER

The petitions for panel rehearing are GRANTED. The opinion and dissent filed on December 27, 2006, are withdrawn. The superseding opinion and dissenting opinion of Judge Thomas will be filed concurrently with this order.

The petition for rehearing en banc is DENIED as moot. Further petitions for rehearing or rehearing en banc may be filed.

OPINION

O’SCANNLAIN, Circuit Judge:

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 (“Baleo”) 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 Baleo. 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”), (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”), 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 Baleo, the government in November 2003 served a grand jury subpoena on Major League Baseball (“MLB”), seeking drug testing information for 11 players with connections to Baleo. One month later, MLB responded that it had no such information.

The government then reasoned that because CDT and Quest 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 eleven players with Baleo 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 Baseball— 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, Magistrate Judge Jeffrey Johnson in the Central District of California issued a search warrant for the CDT office, and Magistrate Judge Lawrence Leavitt in the 'District of Nevada issued a search warrant for the Quest laboratory. 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. 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.

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.” The warrants also authorized the search of computer equipment, computer storage devices, and — 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 hard-copy 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 No-vitzky learned that agents had discovered a hard-copy document with names and identifying numbers for all MLB players, including some of the ten named Baleo 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 Baleo players — the document previously described as the only seizable hard-copy document on site.

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 sub-directories 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.

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 Baleo players, intermingled with positive results for 26 other players. Upon returning to his office in San Jose, California, Agent No-vitzky briefly reviewed the contents of the Tracey directory, identifying five subdirec-tories 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 Novitz-ky 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 CDT. Indeed, these records soon were discovered by agents at CDT and faxed to the agents at Quest. 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 Leav-itt authorized this third warrant at 6 p.m. on April 8, 2004, and agents seized from Quest the then-identifiable Baleo 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)”) seeking return of the property seized.

Meanwhile, the government continued to pursue its investigation. On May 5, using information culled from the Tracey directory, the government applied for new search warrants to seize all specimens and records relating to more than 100 non-Balco players who had tested positive for steroids. Magistrate Judge Leavitt in the District of Nevada authorized seizure of the specimens from Quést, and Magistrate Judge Rosalyn M. Chapman in the Central District of California authorized the seizure of records from CDT. Again, the government sought and obtained each warrant from the district court whose jurisdiction encompassed the situs of the property to be searched, as directed by Fed.R.Crim.P. 41(b). The government executed the warrants on May 6, and the Players Association immediately filed motions under Rule 41(g), seeking return of the specimens and records seized.

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 Baleo players named in the original search warrant. He made findings — without conducting an evidentia-ry 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, 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.

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 Baleo players named in the earlier subpoenas. 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.

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.

In December 2004, after hearing argument but without taking testimony, Judge Illston found that the government’s conduct was unreasonable and constituted harassment. She filed an order quashing the subpoenas, which the government timely appealed.

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.

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.

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, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988); see also Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (holding that an association lacked standing where it sought damages rather than “a declaration, injunction, or some other form of prospective relief’).

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

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”). 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. '

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.

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. Nutricology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (“A motion, however la-belled [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.”).

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^] 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)).

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. RApp. 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); see also Fed. RApp. 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).

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.

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, 126 S.Ct. 403, 163 L.Ed.2d 14 (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, 80 S.Ct. 282, 4 L.Ed.2d 259 (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 claim-processing rules” from rules that “deprive federal courts of subject-matter jurisdiction.” 546 U.S. at 16, 126 S.Ct. 403. The Court explained that only the former could be forfeited. See id. at 19, 126 S.Ct. 403 (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”).

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, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (holding that “statutory provisions ... containing] 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 congres-sionally mandated ‘built-in time constraints’ are therefore properly considered nonjurisdictional limitations, subject to forfeiture.”) (quoting Kontrick, 540 U.S. at 453, 124 S.Ct. 906).

In Sadler, we applied this distinction to Fed. R.App. P. 4. We concluded that “the timeliness dictates of Rule 4(b) are forfei-table, because Rule 4(b) is a nonjurisdic-tional claim-processing 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).

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. But our governing caselaw makes clear that a Rule 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, — U.S. -, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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 notice-of-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.

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.

And even if Bowles did not settle the matter with respect to Fed. R.App. P. 4(a)(4), we could not consider the 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). If Fed. R.App. P. 4(a)(4) is non jurisdictional, satisfaction of that provision (or forfeiture of a claim that the government failed to satisfy it) would not enable us to ignore the jurisdictional 60-day rule of Fed. R.App. P. 4(a)(1). See Bowles, 127 S.Ct. at -, 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.

Ill

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)